Patent Act Article 176: Right of Subsequent Use
While Article 175 of the Patent Act was a provision to protect good-faith implementers from the perspective of fairness, this article is established with consideration for the protection of business facilities, similar to Article 79 of the Patent Act.
The section-by-section commentary contained a description regarding a manufacturing method for fountain pens.
Specifically, a person who was working the manufacturing method (invention) of fountain pens as a business, if they meet the requirement of being in good faith before the registration of a request for retrial, can acquire a non-exclusive license under Article 176 of the Patent Act and continue to manufacture fountain pens even after the patent right is restored.
・If a patent right is restored due to the late payment of patent fees, the non-exclusive license under this article does not arise.
・Regarding the temporal requirement which is a prerequisite for the non-exclusive license under this article, it is after the said rescission decision or trial decision becomes final and binding and before the registration of a request for retrial. Please note that it is not until the patent right is restored.
・Patent Act Article 176
Article 176: When a patent right pertaining to a rescinded or invalidated patent, or a patent right pertaining to an invalidated registration of extension of the duration, is restored by a retrial, or when a registration of the establishment of a patent right or a registration of the extension of the duration of a patent right is made by a retrial regarding a patent application or an application for registration of extension of the duration of a patent right for which a trial decision to the effect that it should be refused was made, a person who, in good faith, has been working the invention or preparing to work the invention in Japan after the said rescission decision or trial decision became final and binding and before the registration of a request for retrial, shall have a non-exclusive license on the patent right to the extent of the invention and the purpose of the business being worked or prepared.
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