20 Problems Arising from Duplicated Protection by Patent
Rights and Copyrights – With a Particular Focus on Computer
Programs Created in the Course of Duty – (*)
Research Fellow: Tsuyoshi Uchida
This research paper aims to develop a theory of interpretation and enactment regarding theway to adjust the relationship and effects of patent rights and copyrights in cases where an
employee’s creation of a computer program in the course of his or her duty gives rise to a mixtureof protections of by multiple intellectual property rights.
For this reason, and with regard to the ownership of patent rights and copyrights, I willcompare the requirements and effects of an employee’s invention and an employee’s work, clarify
the differences and determine whether these differences may be resolved through interpretation.
Moreover, I will examine the relationship between patent rights and copyrights in cases where
protections are entangled due to different ownership entities for the patent rights and copyrights
are different as a result of the differences between an employee’s invention and an employee’s
work, from the perspective of the nature of these rights and provisions (the Design Act, Article 28
and the SIC Act, Article 13) which make adjustments for conflicts of rights. Through this review
and by means of comparisons with the employee’s invention system in the U.K., I will expose adesirable method for adjustment in cases where protections are mixed due to differences in therequirements and effects of an employee’s invention and an employee’s work.

I

Introduction: Issues

With regards to the rights to a thing
under the principle that a single real rightcan exist for a single thing, it is basicallyassumed that the same real rights cannot beshared for one thing.
However, because
certain creations may be evaluated multiply
in the sense that they are protected bymultiple
intellectual
propertyrights,multiple rights may exist for one thing
simultaneously.
And in cases where acreation that would be evaluated multiply
has different ownership entities for its
intellectual
propertyrights,iftherelationship between the rights is notclarified, it is unclear whether the use of thecreation is legislative and its use may be
inhibited. For this reason, it is essential toclarify and adjust the relationship between
rights.
(*)

Several types of creations can beevaluated multiply (for instance, a building
structure subject to protection under the
Patent Law and a building subject toprotection under the Copyright Law).
Computer programs (hereinafter referred toas “Programs”), which have traditionallybeen protected as works by the Copyright
Law , have also come under the protection of
the Patent Law as inventions of an object
due to amendments to the laws, especially inrecent years. This has caused a situation
where copyright and patent rights exist
together for the same Program. As a result,in certain cases, the utilization of a Programby a third party will be restricted by two
rights: patent rights and copyrights.
Intellectual property law has alreadyrecognized this problem of a tangle ofprotection between different intellectual
property rights and established someThis is an English translation of the Japanese summary of the report published under the Industrial Property
Research Promotion Project FY2007 entrusted by the Japan Patent Office. IIP is entirely responsible for any errors
in expressions or descriptions of the translation.
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IIP Bulletin 2008180 ●provisions for adjusting the effects of thoserights (with regard to provisions foradjustment between the same intellectual
property rights, there are Patent Law,
Article 72, which adjust patent rights for
improvement invention and that for initial
invention; and Patent Law, Articles 10 and
28, which adjusts rights for secondary works
and rights of initial right holders; withregard to provisions for adjustment between
different intellectual property rights, there
are the Patent Law, Article 72; Design Law,
Article 26; Trademark Law, Article 28, the
Act Concerning the Circuit Layout of a
Semiconductor Integrated Circuit, Article 13;
and the Seeds and Seeding Act, Article 21,
paragraph 1).
Despite this situation,neither the Patent Law nor the Copyright
Law have any provisions regarding theeffective relationship between patent rights
and copyrights, and the Copyright Law
generally does not have provisions foradjustments.
Thus, the relationshipbetween copyrights and other rights is leftentirely up to interpretation. This problemof adjustment of effects between intellectual
property rights arises only when theownership entities are different, but does notarise when the ownership entities are thesame person (the issue of concurrent claims
should be argued separately).
When looking at the ownership ofintellectual property rights, the intellectual
property rights for a creation basicallybelong to the person who created it. With
regards to a creation in service, there are
two types of provisions: (1) the intellectual
property shall belong to the employer
primitively (Copyright Law, Article 15; andthe Act Concerning the Circuit Layout of a
Semiconductor Integrated Circuit, Article 5),(2) the original ownership entity of theintellectual property rights shall not bechanged (Patent Law, Article 35; the Design
Law, Article 15, paragraph 3 (Patent Law,
Article 35 is applied mutatis mutandis);Seeds and Seeding Act, Article 8.) With
respect to these effects, the intellectual
property rights for a single creation may
belongtodifferent
entities.
The
abovementioned provision (2), with regard tocreation in service, allows for the employer
to act as the ownership entity of theintellectual property rights by contract, etc.
under certain conditions and it is consideredthat such contracts exist in many cases(*1).
In this case, the employer is the ownershipentity of the rights under both provisions (1)and (2); however, the requirements forapplication of the provisions are different.
Consequently, the ownership entities of therightsaredifferent
becausetherequirements are differentIn
thisregard,when
reviewing
Programs, which are one of the creations
that can be evaluated multiply, provision (2):Patent Law, Article 35 (employee’s invention)
may apply to the Program since the Programis subject to protection under the Patent Law,and provision (1): Copyright Law, Article 15,
paragraph 2 (employee’s work) may also
apply since it is also subject to protection
under the Copyright Law.
As mentioned above, Programs are oneof the creations that may be evaluatedmultiply and in cases where the ownershipentities of the rights are different, therelationship between the rights becomes
controversial. With regard to the ownershipof rights of the Program, the requirements
and effects of an employee’s invention and an
employee’s work are different.
Althoughthere seem to be common requirements, it is
not clear whether they can be interpreted as
being the same, due to their different
expressions. It is therefore necessary to
clarify cases where the ownership entities of
the rights differ.
If the problem is notclarified in cases where the ownershipentities of the rights are different, it becomes
unclear whether use of the Program is legal
and such a situation may inhibit its use.

(*1) Hisayoshi Yokoyama, “Shokumu hatsumei ni okeru “soto no taika” no kihonteki kangaekata” [Basic concept of“reasonable compensation” in employee’s invention] in Hidetaka Aizawa, et al., representative editor, Chiteki zaisan
no riron to gentekiteki kadai: Nakayama Nobuhiro sensei kanreki kinen ronbunshu, [Theory and Current Issues ofIntellectual Property Law in Memorial Anthology for the 60th anniversary of Prof. Nobuhiro Nakayama] (2005), p.72
infra.
●181 ●IIP Bulletin 2008

For this reason, it is essential to clarify the
relationship between these rights and toadjust them accordingly.
Consequently, with regard to the right toobtain a patent, the patent rights(hereinafter referred to as “Patent rights,
etc.”) and copyright of the Program which iscreated in service, this paper aims to clarify
and resolve the problems that arise from thecommingling of the protections of patentrights and copyrights due to differences in
the requirements and effects of an
employee’s invention (Patent Law, Article 35,
paragraph 1) and an employee’s work
(Copyright Law, Article 15, paragraph 2).

II

The System for an Employee’s
Invention and an Employee’s
Work under U.K. Law

With regard to the U.K. Patent Act (*2),
Section 39, subsection (1), which stipulates
ownership of an invention in the course of
employee’s duty and the Copyright, Designs,
and Patents Act of 1988 (*3) (hereinafterreferred to as “CDPA”), which stipulates
ownership of the copyright of a work createdin the course of employee’s duty, Section 39,
subsection (1) of the Patent Act requires that“an invention might reasonably expected toresult from the carrying out of his duties;” or“in the nature of his duties he had a special
obligation to further the interests of theemployer’s undertaking.” For that reason,
if the employer fails to establish therequirement of Section 39, subsection (1) of
the Patent Act, the invention belongs to theemployee pursuant to Section 39, subsection(2) of the Patent Act. In some cases where

the employee made the work (or design)during his or her employment, the copyright(or design right and registered design right)
concerning the invention may belong to theemployer. (*4) In cases where neither Section
39, subsection (1) of the Patent Act nor
Section 11, subsection (2) of the CDPA apply,
but the employee made a contract to assign
the copyright to the employer in advance, theinvention belongs to the employee, but the
copyright belongs to the employer. Therefore,
provisions for adjustment for cases where thecopyright (or design right, or registered
design right) belongs to the employer and theinvention or the patent rights belong to theemployee have been added to Section 39 of
the Patent Act. (*5) The provisions stipulatethat when the invention belongs to theemployee pursuant to Section 39, subsection(2) of the Patent Act, the following two acts do
not infringe on a copyright (or design right) towhich, as between employee and employer,
the employer is entitled in any model ordocument relative to the invention: (a) an act
on behalf of the employee claiming under hisor her name for the purposes of pursuing anapplication for a patent; or (b) an act for the
purpose of performing or working with theinvention.
The background for the establishment of
this provision is not clear from the materials
for establishment: however, it is assumed
that it was to avoid the occurrence of an
unreasonable result where an application by
the employee is restricted by the employer
who obtained the copyright, (*6) and that theamendment is to accomplish the purpose ofvesting the employee with the invention insubsection (2).(*7)(*2)

Patents Act 1977 c. 37.
(*3) Copyright, Designs and Patents Act 1988 c. 48.
(*4) Stephen F. Jones and Alan W. White for the Chartered Institute of Patent Attorneys, C.I.P.A. guide to the patents
acts, (4th ed. Sweet & Maxwell 2007) para.39-17.
(*5) CDPA Sch 5. para 11. The Patent Act, Section 39, subsection (3).
“Where by virtue of this section an invention belongs, as between him and his employer, to an employee, nothingdone(a) by or on behalf of the employee or any person claiming under him for the purposes of pursuing an application for apatent, or(b) by any person for the purpose of performing or working the invention, shall be taken to infringe any copyright ordesign right to which, as between him and his employer, his employer is entitled in any model or document
relating to the invention.”(*6) J. Phillips & A. Firth, Introduction of Intellectual Property 4th ed. (London, Butterworth 2001) 23.17.
(*7) Gerald Dworkin & Richard D. Taylor, Copyright,Designs & Patents Act 1988, (London, Blackstone 1990.) p. 209.
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IIP Bulletin 2008

182 ●

III

Ownership of the Right toProgram Made During DutiesaWith regard to the requirements for an
employee’s invention and those of an
employee’s work, there is a distinct
difference:therequirements
foranemployee’s
inventiondonotincludenonjuridical organizations, etc. in judicial
persons, while those for an employee’s work
include them in “judicial person, etc.”; andthe requirements for an employee’s invention
include present or past duties, while those
for an employee’s work do not include past
duties expressly or by interpretation. (*8)
With regard to the interpretations, “a person
who engages in the business of a judicial
person, etc.” is decided by the offer of labor
under direction and supervision and by thepayment of money as a compensation for theoffer of labor. Moreover, judgments by the
relationship of direction and supervision
have different criteria.
Since there are at least the differences
mentioned above between an employee’s
invention and an employee’s work, in suchcases, the ownership entity of the patentrights and the copyrights may be different.
With regard to such differences between therequirements of an employee’s invention andan employee’s work, there are some opinions
that suggest that the abovementioned
requirements should be included in a
uniform interpretation. It is necessary to
examine whether this interpretation ofrequirements for an employee’s inventions
and an employee’s work is appropriate. In
this case, it is considered to “be important”
in theories “to recognize once again the
difference of effects and purpose of an
employee’s
work
and
an
employee’s

invention.” (*9) Consequently, I will review
the appropriateness of these interpretationsof requirements from the perspective of thedifference between effect and purpose. Theinterpretation of requirements makes adifference in the case of the Patent Law
which adjusts benefits and results in an
employee’s invention for an employer and an
employee and in the case of employee’s work
which generates no benefits directly for a
person who engages in the business of a
judicial person, etc. since the intention ofboth a judicial person, etc. and a person who
engages in the business of the judicial person,
etc. are estimated.
In concrete terms, based on the
difference in effects of the existence orabsence of monetary compensation for a
succession of rights, the requirement of an
employee’s work - “a person who engages inthe business of the judicial person, etc.” andwho “creates in service” - are different fromthe requirements of “an employee, etc” orthat “belongs to the duty.” An employee’s
work should be defined to the extent that themoney is paid for the creation ascompensation of an offer of labor. (*10) In thecontext of purpose, unlike an employee’s
invention, which requires the inclusion of
past duty in terms of the adjustment ofbenefits, the “duty” of an employee’s work is
a presumption of intentions between a
judicial person, etc. and a person who
engages in the business of a judicial person,
etc., and does not include a past duty since
the intention that admits a judicial person,
etc. as an author cannot be presumed for
those acts which are not a duty at the time ofcreation. These interpretations are backed
up by the differences in the expression of theprovisions
concerninganemployee’s(*8) Nobuo Monya, Shokumu chosaku: shokumu hatsumei tou hoka no shokumujo no sosaku tono kanren [Employee’s
work: relationship with employee’s invention and other creation in service], Copyright Vol. 43, No.10, p.9.
Nobuhiro Nakayama, Chosakuken ho [Copyright Act] (2007), p180 notes, with regard to the past duty, that it is not
excluded from the requirements of “made in the course of duty,” however, the creation requires “initiative,” therefore,
past duties are not included in employee’s work.
(*9) Tatsuhiro Ueno, “Shokumu chosaku / shokumu hatsumei ni okeru jugyoshatou” [An employee, etc. in the case of
employee’s work / employee’s invention], Kigyo to hosozo [Creating New Legal System for Corporation and Society],Vol.1, No.2, p.148 infra.
(*10) With regard to a person who engages in the business of juridical person, etc., see Judgment of Supreme Court, theSecond Petty Bench, April 11, 2003, Case of RGB Adventure, The Hanreijiho [Judicial Report]No.1822, p.133, andwith regard to duty, see Monya, supra note 8, p.8●

183 ●IIP Bulletin 2008

invention and an employee’s work.
Accordingtotheaforementioned
difference in effect and purposes, it isdifficult to understand the requirements foran employee’s invention and an employee’s
work in a unified manner. There are cases
where the copyright and the right to obtain
the patent (patent right) may belong to an
employee and an employer separately undercertain conditions due to the differences
between those requirements.

IV

Mixture of Protection between
Patent Right and CopyrightFirst, neither the Patent Law nor the
Copyright Law has provisions to adjust ageneral mixture of protection between patentrights and copyrights. In cases where theimplementation of a patented invention or
the use of a work infringes apparently on the
copyright or the patent rights, it is not
obvious whether the implementation or theuse is restricted. In this way, when theintellectual property rights are complicated,
the understanding of the relationshipbetween one right and another has been
considered from the perspective of thenature of the right.
If patent rights have the nature of
exclusive rights as dominant theory claims,
since exclusive rights are not restricted to
implementation by the exclusive effect ofother exclusive rights alone unless there is aparticular provision, (*11) the implementationof a patented invention in the way of anapparent infringement of the copyright does
not actually infringe on the copyright.
Meanwhile, since the copyright not is
considered to be an exclusive right, but aright to exclude, as stated above, when there
are no provisions for adjustment, the use of
the work is restricted by the exclusive effectof the patent rights. (*12) Therefore, the useof work by the copyright holder, at least, isrestricted by the patent rights.
With regard to patent rights, theconclusion drawn from the case where bothrights are exclusive rights is applied to thecase of exclusive rights against the right toexclude. There is a question as to whether
the same conclusion is derived naturally
from this case. In the judgment on the Caseof gloves, it is reinforced by the underlying
theory: the judgment on a case where theimplementation is not restricted is reserved
by “there is no peculiar provision in the law;”and the arguments on the nature of thepatent rights do not naturally arrive at theconclusion of the problem so that it shall be
determined by each problem. (*13) Therefore,
theconclusiononwhether
this
implementation of the patented invention,
where the patent rights holder uses the work,
infringes on a copyright may not be derived
clearly from the nature of patent rights andcopyrights.
The aforementioned problem of the
mixture of protection between patent rights
and copyrights is recognized by theories
which advocate analogical application of the
Design Law, Article 26, which adjusts
conflicts
betweendesignrightsand(*14)
copyrights.
Certainly, it seems that
analogical applications of the Design Law,
Article 26 define the relationship between
patent rights and copyrights in cases where
protections by both rights are mixed, andcontribute to resolving problems involving
the restriction of the use of a Program.
However, it is doubtful whether the Design
Law, Article 26 takes into account cases
where ownership entities of the rights aredifferent
due
to
the
differenceinrequirements for an employee’s work and an
employee’s invention. And, the question is(*11) Judgment of Tokyo District Court, May 12, 1979, Case of gloves, Mutai shu [Collection of Court Decisions ofIntangible Property] Vol.11, No.1, p.134(*12) Judgment of Supreme Court, the Second Petty Bench, July 20, 1990, Case of Popeye muffler, Saiko-saibansho Minjihanreishu [Supreme Court of Civil Report], Vol. 44, No.5, p.876.
(*13) Nobuhiro Nakayama, Kogyoshoyuken ho (jo) [Industrial Property Law (First volume)], (2nd and enlarged edition,2000), p.310(*14) Tatsuki Shibuya, “Chiteki zaisan hogo no kousaku, senzoku, kenketsu” [Mixture, exclusivity, and defect], Nihon
Kogyoshoyukenho-gakkai nenpo [Annual report of Japan Association of Industrial Property Law] No.30, p.62●

IIP Bulletin 2008184 ●not only this conceptual problem, but also
whether or not it is possible to apply the
Design Law, Article 26 analogically to casesof mixed protection by patent rights andcopyright due to a difference in objects,
design and invention.
A
copyright
infringementbyimplementation of the invention can beassumed so that the implementation of thepatented
invention
withcopyright
infringement of a previously created work by
the patent holder is restricted by analogicalapplication of the Design Law, Article 26.
In this case, since the invention is different
from the “shape of an article,” etc., it is atechnical idea, and “expression” is not
limited, whether the implementation ofpatented invention becomes a copyright
infringement may not be decided until theinfringement actually takes place.
As aresult, the execution of the right to exclude
against the copyright holder by the patentrights holder is not to be restricted.
As a result, the analogical application of
the Design Law, Article 26 is meaningful for
defining a relationship with copyrights thatis not defined from the perspective of thenature of patent rights. Meanwhile, fromthe point of view of securing the use of a
Program’s work, it may lead to the final
conclusion that no one can use the work.
There is a theory (*15) that focuses
attention on the nature of copyright as thecomparative right to exclude and states asimilar solution to Article 13 of the Act
Concerning the Circuit Layout of a
Semiconductor
Integrated
Circuit(hereinafter referred to as the “SIC Act”),
which stipulates the relationship between
circuitlayoutrights(whichareacomparative right to exclude) and patentrights, etc. I will review the theory here.
First, the SIC Act, Article 13 stipulates that“where the use of a registered circuit layout
corresponds to the implementation ofanother person’s patented invention orregistered utility model, a circuit layoutrights holder, a holder of an exclusive rightto use, or a holder of a non-exclusive right touse may not exploit the registered circuit
layout as a business.” However, the patentrights holder is not secured in the use of acircuit layout. Eventually, even if the SIC
Act, Article 13 is analogically applied to the
problem of a mixture of patent rights andcopyrights, it leads to the conclusion that noone can use a Program’s work. This is thesame as cases where the Design Law, Article
26 is applied analogically.

V

Solution by Legislative Process

In this way, I have examined problems
raised by the mixture of patent rights andcopyrights using means of solution that callon existing provisions concerning mixtures ofprotection by multiple rights; however, it isclear that these means cannot resolve theproblem. Now, moving away from solution
measures by the use of existing provisions, I
will examine an ideal means of adjustment
with regard to problems of the mixture ofprotection by the patent rights andcopyrights of Programs.
Among theories that refer to enactment,a theory suggests a solution by consigning
the protection of Programs to a special act.
This is inappropriate not only fromperspective of treaty obligations andinternational harmony, but also in the sensethat even if the problem of mixture is solvedin this way, it may lead to depriving a patentrights holder or a copyright holder ofproperty rights without compensation.
Integration of the requirements andownership
entitiesofanemployee’s
invention and an employee’s work byenactment may bring a result which is not in
conformance with the purposes of theemployee’s invention and the employee’s
work, such as the benefits and intentions of
the parties involved. It may also bring a
result which excessively restricts otherbenefits to be protected (constitutionally) in
the case of an employee’s work.
These
solutions are therefore unacceptable.

(*15) Monya, supra note 8, p.12 infra.
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185 ●IIP Bulletin 2008

Therefore, I propose that the U.K. laws
will suggest the ideal method of adjustment
for Japanese intellectual property system,
since there are factors that requireparticular consideration in the case ofcreation in the course of duty even when
considering problems of protection.
The
U.K. laws adjust patent rights andcopyrights with particular consideration for
creation in the course of duties. Due to thedifference in the provisions of the U.K. laws
and Japanese laws, the problems arisingfrom the mixture of patent rights andcopyrights in Japan cannot be solved bydirectly introducing the U.K. Patent Act,
Section 39, subsection (3) into Japaneselaws.
However, the U.K. Patent Act, Section
39, subsection (3) suggests that theadmissibility of adjustment limited to casesof creation in the course of duties, unlike
provisions for adjustments between generalrights and adjustment limited to cases ofcreation in the course of duties, may lead toa solution based on the purpose of theprovisions for creation in the course of duties
which is different from the nature of patentrights or copyrights.
Then I examine what it means for awork to be an employee’s invention and for awork which does not correspond to therequirements of an employee’s work. In
cases where ownership entities of the rights
for a creation in the course of duties aredifferent, adjustment to approve the use of a
Program’s work created by an employee foran employer, etc. who may implement apatented invention may accomplish the
purposes of an employee’s invention and an
employee’s work based on the following
reasons: (1) there is a request that aninvention shall be implemented by an
employer when it corresponds to an
employee’s invention; (2) provision of an
employee’s work was established after
consideration of only the ownership of aright; (3) if a case does not correspond to an
employee’s work, there is no active intention
or meaning; and (4) the nature of copyrights
in the Copyright Law as a right to exclude.
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IIP Bulletin 2008

In terms of methods to adjust
permission, etc. for use, since it is not theassignment of a “right,” it is unnecessary toadjust benefits as well as non-exclusive
rights for an employee’s invention. However,provided that since the Copyright Law does
not include the means to act against a third
party with regard to the permission to use acopyright, I conclude that it is necessary toenact provisions so that a right to use heldby an employer may be against the assigneeof a copyright like the Patent Law, Article 99,
paragraph (2).
As for a means of solution by enactment,
there may be a method to enact the
restrictive positions of rights according tosuggestions from the U.K. law. In this case,in order to solve all of the problems of the
mixture of rights, it is necessary to stipulatethat an author may not exercise his or her
right against all patent holders, exclusive
licensees,
andnon-exclusive
licenseesregarding an employee’s invention.
This
allows use of a work only by a patent
holder’s permission for a non-exclusive
license and leads to the conclusion that it
may lose the meaning that the employee
holds a copyright. Therefore, I conclude
that this type of enactment is inappropriate.

VI Conclusion
In this paper, I examine issues related topatent rights (the right to obtain a patent)
and copyrights for a Program created by an
employee in the course of his or her duties,
for the purpose of developing a theory ofinterpretation and of enactment concerning
ownership, the relationship between rights
and the method for adjusting those rights.
Due to differences in the requirements
for both provitions, a right to obtain a patent(patent right) and copyright belong to an
employee and employer separately in acertain cases (Chapter III). Problems of
mixture of protections that arise in cases
where ownership entities of patent rights
and copyrights are different were not solved
with existing provisions for the adjustment
between rights (Chapter IV). Consequently,
186 ●I considered methods of solution by newenactment from the perspective of U.K. law(Chapter V). First, the U.K. Patent Act,
Section 39, subsection (3) suggests that theadmissibility of adjustment limited to casesof creation in the course of duty, which isdifferent from provisions for adjustment
between general rights and adjustment
limited to a case of creation in the course ofduty, may lead to the solution in the purposeof the provisions for creation in the course of
duty. Next, I considered the differences inthe systems for an employee’s invention andan employee’s work and concluded that, incases where the ownership entities of therights for a creation in the course of duties
are different, an adjustment to allow an
employer, etc. who may implement thepatented invention to use a Program’s work
created by an employee may accomplish the
purposes of an employee’s invention and an
employee’s work according to the following
points: (1) there is a request that aninvention shall be implemented by an
employer when it corresponds to an
employee’s invention; (2) provision of an
employee’s work was established after
consideration of only the ownership of aright; (3) if a case does not correspond to an
employee’s work, there is no active intention
or meaning; and (4) the nature of copyrights
in the Copyright Law as a right to exclude.
Since the Copyright Law does not have themeans to act against a third party withregard to the permission to use a copyright, I
concluded that it was necessary to enact aprovision that stipulates a right to use heldby an employer that may set it against an
assignee of a copyright, like the Patent Law,
Article 99, paragraph (2).
As stated above, problems in cases
where patent rights and copyrights belong toan employer and employee respectively seemto have been resolved. However, in cases
where patent right, etc. are transferred or apermission of use is provided after thetransfer, the problem of the mixture ofprotection arises again and is not yet
resolved. This is beyond the scope of a work
is a creation in the course of duties and is●

now an issue of the mixture of protection ofgeneral rights, which is beyond the scope of
this paper, which examines the specific issueof creation in the course of duties.
However, as mentioned above, withregard to an act of piracy by implementationof an invention made in the course of duties
performed by a patent rights holder,
exclusive licensee, or non-exclusive licensee,
the establishment of restrictive provisions on
the right to execute a copyright becomes asolution when considering only the mixtureof protections. However, if such a solution
is adopted, the meaning that the copyrightholder possesses a copyright will almost be
lost by a patent holder’s permission for
non-exclusive rights.
Consequently, theadjustment loses its sense of protecting a
Program’s work and does not contribute to
the creation of a work.
Moreover, withregard to the problem of the mixture ofgeneral protections, an adjustment by theprinciple of priority (like the Design Law,
Article 26) may be considered. However, as
mentioned before, since the invention is atechnical idea, and “expression” is notcompletely limited by the specification or
clams, whether the implementation ofpatented invention becomes a copyright
infringement may not be decided until theinfringement actually takes place. Therefore,
solution by the principle of priority isinappropriate as a means for solving aproblemconcerningthemixtureofprotections by the patent rights andcopyrights of a Program.
With regard to the general mixture ofpatent rights and copyrights of a Program,the issues discussed in this paper still
remain. Furthermore, examination of themost appropriate means of adjustment forsuch cases is also pending. I would like toplace this concern at the center of my future
research.

187 ●IIP Bulletin 2008