489 Japan’s post-war economic success: Deming, quality, and contextual realities

Japan’s patent system
The acceptance of Deming’s doctrine of “unknowable knowledge” helped the
Japanese focus their attention on the exploitation of leading-edge processes,
techniques, and devices described in patent filings at home and abroad. 
Intense global military and economic competition in the post-war era led to a
surge in technological advances and associated patents. Japanese firms in
particular have long profited by exploiting the inventions of others rather than
developing their own technologies. US businessmen striving to compete in the
Japanese market have particular concerns about seeing that patents are
handled fairly. Japan’s patent system, based on European patent law, differs
from the unique US system. Several features of the Japanese system make it
difficult for foreigners to protect their technology: a lengthy examination
period, narrow patents, pre-issuance opposition, and lack of infrastructure to
support foreign companies in obtaining and enforcing patents in Japan. In fact,
the lengthy Japanese approval process – which takes almost twice as long as the
two- to three-years US or European average – combined with the publication of
patent applications 18 months after filing, gives competitors time to research
the patent and possibly to reverse-engineer the technology.
Table III arrays many of the key differences between the US and Japanese
patent systems[3].
Japanese firms devote substantially more manpower and financial resources
to tracking and analyzing patent applications than do their US counterparts.
Historically, large Japanese firms have relied on patents to improve their
competitive position in emerging technology markets. Firms benefit from
researching and obtaining large numbers of patents by gaining access to

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Japan’s post-war
economic
success
499
technology, saving money on costly research and development, protecting their
markets, and earning the prestige the business community accords to patent-
holders.
One controversial Japanese practice involves submitting a flood of patent
applications that vary only slightly from the original application. This practice
enables firms to:
•
Amass large patent portfolios to trade with competitors. Usually these
are narrowly defined patents of marginal utility that the Japanese hope
to trade for broader, more useful US patents. This practice creates
problems for small companies with a few highly specialized products.
•
Freeze the inventor out of the market with literally hundreds of patent
applications for the same technology. When the Japanese filer then
demands that the foreign inventor cross-license the technology, the
inventor is locked out of the Japanese market.
Japan
USA
Views patents as a trading commodity to
Views patents primarily as granting an
access technology and obtain cross-licensing
inventor the exclusive rights to make, use, and
agreements
sell his invention
Grants patents on first-to-file basis
Grants patents on first-to-invent basis
Applications are made public 18 months 
Applications are kept secret until patent is
after filing
granted
Patents are granted five or more years after
Patents are granted within two years of filing
filing
Grants very narrowly defined patents; law
Grants broadly defined patents
recently passed allowing broader patents
Opposition process allows competitors to
The burden of disclosing prior art is on the
challenge a prospective patent; applicants 
applicants. The Patent Office also searches for
are not required to disclose prior art or
prior art, and a competitors can resort to
similar technology; the Patent Office places
litigation after a patent is granted if he believes
the burden of discovery on competitors;
the patent duplicates a prior patent
an opposition must be answered within
three months by the applicants; extension
possible – was recently raised from one to
three months
Patent law is practised in-house in large and
Large firms have in-house patent departments;
small firms; qualified law firms specializing
smaller firms use numerous outside law firms
in patent law available to foreign companies
specializing in patent law
in Japan are few and expensive
Can file for patent on an idea or on proposed
Must have laboratory results or working model
technology application
to obtain a patent