Making Your Own Rules

When I started working as a patent attorney, I began to feel that patent law is essentially a tool for creating laws.
The claims of a patent work very much like legal rules.

For example, imagine a patent P with the following claim:

[Claim 1] A tea dispenser that automatically serves the right amount of tea when a button is pressed.

If patent P is granted, no one except the patent owner can make or sell any device that “automatically serves the right amount of tea when a button is pressed.”
A company that happened to be planning such a tea dispenser would have its business plan destroyed once the patent is granted.


When patent P is granted, it is almost like a new law saying:
“No one except the patent owner may make or sell a device that automatically serves the right amount of tea when a button is pressed.”

Contracts only bind the parties who signed them.
In contrast, a Japanese patent affects everyone in Japan.
Most people are not planning to make such a tea dispenser, so it looks like the patent has no effect. But for some businesses, the effect can be extremely serious.

Filing a patent application is, in a sense, an attempt to use patent law as a legislative tool to create “your own rules” that work in your favor.

A patent also has legal force, just like normal laws.
The government can enforce a patent through injunctions, damages, or even criminal penalties.

Companies conduct business in areas where they can apply their own rules (their “territory”) or where no one’s rules apply yet (a “free zone”).
If a company can keep many customers under its own rules, it can profit greatly.

Your Rules in Other Countries

Even if you are Japanese, if you obtain a U.S. patent, you can enforce your own rules in the United States.
Likewise, if an American company obtains a Japanese patent, then even in Japan, local businesses must follow that company’s rules.

This is why countries with weaker technological power often fear that foreign companies—especially from advanced countries—will obtain many patents in their country.
They worry that their business environment will gradually be occupied by foreign companies’ rules.
Therefore, such countries tend to want to weaken the power of patents.

In most international disputes about intellectual property, the countries pushing hardest are usually the advanced nations.
They naturally want their rules to be respected everywhere.

In Japan, ordinary laws are carefully reviewed by the Cabinet Legislation Bureau and various committees before being enacted.
But a patent is created mainly through discussions between the patent examiner and the applicant’s representative (the patent attorney).

Examiners try to keep patents narrow (so they do not overly affect others) or avoid granting them at all.
Patent attorneys try to obtain the broadest possible rights for their clients.

Changing the Rules of the Game

In 1996, a curious patent application (JP H8-251999) was filed in Japan.
It contains claims like the following (with some errors corrected):

[Claim 1] Everything: all matter, all space, and all time.
[Claim 2] Everything written here. Reading by every possible means. Reading with all eyes. Reading using every eye learned here.
[Claim 3] All laws and rules involved here.
...
[Claim 30] All things in the world and in the universe.

It sounds like an attempt to take control of everything in Japan.
If such a patent were granted (it was not), no one could use or make “anything.”
People wouldn’t even be allowed to sell objects or time, so all business activity in Japan would stop.

This strange application, however, makes us think about the true nature of patent law.

When A transfers a patent to B, A is essentially changing “my rules” into “your rules.”
Obtaining, licensing, and transferring patents can be seen as changing the rules of the business game among players.

Business can be viewed as a game whose conditions change according to the market and the law.
Patent law is a legitimate tool for influencing and shaping the rules of that game.

This means that the true mission of an intellectual property department is: to create rules, enforce rules, and detect changes in the rules.