Utility Model Act Article 7: Prior Application
The Utility Model Act adopts a non-examination registration system. Therefore, this article is effective in the following cases: (i) when there is a conflict with a patent application, (ii) when a utility model technical evaluation report is requested, and (iii) in the case of an invalidation trial..
Article 7, Paragraph 3 of the Utility Model Act provides for cases where a utility model registration application conflicts with a patent application. In such cases, the Commissioner of the Japan Patent Office will issue an order for consultation. If the consultation fails, a reason for refusal will arise for the patent application, and a reason for invalidation will arise for the utility model registration application.
Even if the consultation fails, the reason for refusal or invalidation can be resolved by deleting the conflicting portion through an amendment or correction.
Note that because the non-examination registration system is adopted, the Utility Model Act does not contain provisions regarding notifications of reasons for refusal like the Patent Act.
・Utility Model Act Article 7
(Prior Application)
Article 7 (1) Where two or more applications for utility model registration are filed for the same device on different dates, only the applicant who filed the utility model registration application first may obtain a utility model registration for the device.
(2) Where two or more applications for utility model registration are filed for the same device on the same date, none of the applicants may obtain a utility model registration for the device.
(3) Where a device relating to an application for utility model registration and an invention relating to a patent application are the same, and the utility model registration application and the patent application are filed on different dates, the applicant for the utility model registration may obtain a utility model registration for the device only if the application was filed prior to the patent applicant.
(4) Where an application for utility model registration or a patent application is abandoned, withdrawn, or dismissed, the application for utility model registration or the patent application shall, for the purpose of the application of the preceding three paragraphs, be deemed never to have been filed.
(5) Where a decision or trial decision to the effect that a patent application is to be refused has become final and binding, the patent application shall, for the purpose of the application of paragraph (3), be deemed never to have been filed; provided, however, that this shall not apply where a decision or trial decision to the effect that the patent application is to be refused has become final and binding because it falls under the provisions of the second sentence of Article 39, paragraph (2) of the Patent Act.
(6) Where the consultation under Article 39, paragraph (4) of the Patent Act cannot be reached or cannot be held, the applicant for utility model registration may not obtain a utility model registration for the device.
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