★★★ ＜第22回知的財産翻訳検定試験【第12回和文英訳】＞ ★★★
≪１級課題-知財法務実務-≫【問 1】(1) According to the factual premise above, this court has found that (i) theplaintiff and the defendant entered into contract in the present case on
November 26, 2002 in that "the defendant shall take actions of filing patentapplications for each of the inventions in the present case, necessary actions
up to registration, and actions regarding maintenance of the rights to beobtained upon registration" (Section 2, Item 1, main paragraph), (ii) thedefendant did not request an examination for each of the patent applicationsin the present case within the time period for requesting an examination
after filing of each of the patent applications in the present case, (iii)
resultantly the plaintiff lost the rights to obtain a patent for each of theinventions in the present case.
According to (i) above, it is obvious that the defendant owed the plaintiff aduty to take an action of requesting an examination of the patent application
within the time period for requesting an examination after filing of theapplication for each of the inventions in the present case based on thecontract in the present case, and (ii) above shows the defendant did not fulfill
its obligation. Therefore, this court cannot avoid determining that thedefendant owes the plaintiff compensating damage caused by the above
non-fulfillment of the obligation.
However, according to the entire import of the arguments, it is determinedthat the defendant entrusted patent attorney Aii of the patent law firm of thepresent case of taking actions for the patent applications for the respective
inventions in the present case. On the other hand, as explained in (1) above,since the defendant basically took responsibility for requesting examination
for the plaintiff, patent attorney Aii shall be determined to be an assistantperformer for the defendant regarding the obligation of the defendant to theplaintiff. Accordingly, as between the plaintiff and the defendant, thewillfulness and negligence of patent attorney Aii shall be equally
attributable to the defendant according to fair and equitable principles.
Accordingly, this court cannot take the above argument of the defendant.

【問 2】
Section 2 (Development)
5.

Developer hereby assigns and transfers to Customer all Copyrights in and to theCustom Program which have arisen through the development of the Custom
Program, and all rights in and to the screen graphic designs created through thedevelopment of the Custom Program, except for such rights as are reserved toDeveloper hereunder. Developer hereby further agrees to not enforce any author’s
moral rights against Customer with respect to the Custom Program, except forsuch rights as are reserved to Developer hereunder. Customer shall have, however,no assignment or transfer of any rights in or to any inventions having arisen
through the development of the Custom Program or in the course thereof, or ofany right in or to any technical knowhow or technical secrets of Developer used in
the course of the Development of the Custom Program or incorporated in theCustom Program, and such rights are all retained by Developer.

Section 3 (License)
3.

The License shall be deemed to also grant a license under a patent right to use therelevant Patented Inventions incorporated in the Program. The grant of suchpatent-right license, however, shall be only for limitedly authorizing such
Customer’s use of such Patented Inventions as inevitably caused by theCustomer’s use of the Program in the course of the exercise of the License, and inno event shall Customer have any license separate from or independent of theLicense, in respect of such Patented Inventions.

Section 10 (Indemnification)
2.

Insofar as the damages are actually incurred by Customer directly as the result of
an infringement of a third-party patent right or Copyright by the Program,notwithstanding the preceding paragraph, Developer shall fully indemnify
Customer from such damages. Such Developer’s indemnification shall be, however,conditioned upon and subject to: Customer’s proving to a reasonable degree bywritten evidence that the following requirements are all satisfied; and Customer’shaving provided Developer with all reasonable cooperation for the settlement ofsuch third-party claim:(4)

Such infringement has been neither caused by the Custom Programs or any
devices, systems or software owned or controlled by Customer, nor by any
combination, in part or in whole, of the Program with any of these above;
and

(5)

No use of the Program by Customer has ever been in conflict with any of theReserved Rights.