"Reinstatement of rights", a pie-in-the-sky in Japan

November 03, 2010

1. Japanese eccentric patent practice

“Reinstatement of rights” is stipulated in Japanese patent law like other foreign laws. The problem is that “Reinstatement of rights” is not practical because the criterion is too strict to apply. The criterion is stipulated as “reasons outside control of the applicant or the owner of the right”. 

The criterion is interpreted by the Japan Patent Office as follows.
(a) Objective reasons such as natural disasters (e.g.: damage on a house/building due to a big earthquake, flood, heavy snow, or destructive storm; disconnected communication lines; and block on transportation). 
(b) The prescribed procedure was not carried out in spite of the due care paid by the party concerned who has a normal level of alertness (e.g. serious diseases; destruction of documents by fire; and unexpected errors in the mailing service).”

 Typical interpretation in Japanese courts is typically as follows.
 “Secretary’s negligence is considered as a patent attorney’s negligence” in Tokyo High Ct. 2007 (Gyo-ke) 10271, decided on 2007. Dec., 26) 
 This criterion is completely different from the criterion for reinstatement of EPO and GPTO.

2. Practice guideline

It is recommended to confirm “Failsafe system” to protect foreign clients is the implemented in the procedure of Japanese IP firms.
“Failsafe system” is typically used in aeronautical engineering to try to realize airplanes which can not crash. "If anything can go wrong, it will." That is the famous Murphy’s Law, and engineers in the Boeing co. remember it. Some Boeing engineers interpret it as “if airplanes can not crash, it will not”.

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