11

Study on Patent and Economy

This study examined the economic significance and effects of the pro-patent policy that is currently being
promoted and the desirable direction thereof.
Specifically, analysis was firstly conducted on changes in the economic effects of “broader protection” andlicensing conditions which are thought to more promptly reflect the effects of the “pro-patent policy.” Secondly, amechanism by which patents influence economic activities was examined to promote experimental study of the“cycle of intellectual creation” modified by adding five points to requirements that have been pointed out so far.
Moreover, this study examined the desirable intellectual property policy that balances the protection of preceding
technology and the promotion of late technology in consideration of such questions as whether broad and exclusive
patents should be granted to pioneer patents in order to develop applied technology through accumulating improved
technology, or whether the grant of exclusive patents should be considered to hinder such development. This study
also conducted questionnaire surveys to companies as well as evaluated the U.S. “pro-patent policy.”

Ⅰ Economic Effects of “Broader
Protection” of Patent Rights:
Viewpoint of Coordination among
Inventors
In Japan, both the scope of protection ofindividual patent rights and fields of technology
subject to patent are expanding. The introduction of
an improved multiple claims system in 1987 andjudicial rulings positively admitting the equivalent
doctrine have contributed to expanding the scope ofprotection of individual patent rights. The trend of
granting patents through the revisions of
Examination Guidelines by the Japan Patent Officehas indicated the expansion of the fields oftechnology subject to patent, as symbolized bybiotechnology-related patents and business model
patents. Nowadays, there is a movement for thegovernment to try to strategically utilize
intellectual property rights, and it can be said thatthe “pro-patent policy” of Japan aiming at stronger
protection of patent rights is in progress.(*1)
1Changes Regarding Patent Applicationsin the 1990s

Looking at the increase in the number ofpatent applications and that of patent registrations
from 1990 onward to find out the overall recent
trend of patent applications in Japan, the number ofpatent applications increased by 0.16% from 1989 to
1993, and by 2.81% from 1994 to 1998, while thenumber of patent registrations increased by 19.79%
and 20.02% respectively, showing the recent trendof greater increase in the number of patentregistrations in contrast to increase in the numberof patent applications.(*2) Reflecting this trend, therate of patent registration (number of patentregistrations/number of patent applications) from1990 to 1998 is 27.99% and far exceeded the ratefrom 1971 to 1990, 20.5%.(*3) In addition, the rateof requests for examination within one year of filing
applications has been increasing from 5.5% (1990),
to 8.1% (1994) and 10.8% (1998), showing that a
movement occurred in the 1990s toward active
acquisition of rights for inventions for whichapplications were filed.
In order to find out technical fields where suchintention toward the acquisition of rights is relatively
strong, changes in the share of each technical field
to that of all technical fields were examined for therespective numbers of applications and registrations(Fig. 1). When the share of the number ofapplications decreases and the share of the numberof registrations increases in a technical field, it canbe understood that the intention toward theacquisition of rights is enhancing more in thatparticular field compared to the overall industry.
From Fig. 1, it can be understood that such movement
has occurred in International Patent Classification
Sections G and H (Physics and Electricity), andthere is relatively strong intention toward theacquisition of rights in the IT-related industry.
At the same time, competition in research and(*1) Regarding the economic analysis of the U.S. “pro-patent policy”, Adam B. Jaffe, The U.S. Patent System in Transition: Policy
Innovation and the Innovation Process, 29 Research Policy, pp.531-557 (2000) is of great use. Regarding the policy trend ofJapan and the meaning thereof, refer to Satoru Tanaka, “Pro-Patent Ka Deno Kyoso Seisaku (Competition Policy under
Pro-Patent),” edited by Akira Goto and Akio Yamada, “IT Kakumei To Kyoso Seisaku (IT Revolution and Competition
Policy),” p.143, Toyo Keizai Inc., 2001.
(*2) Calculated based on the “Tokkyo Gyosei Nenji Hokokusho (Annual Report on Patent Administration)” edited by the Japan
Patent Office. Other figures in this section are calculated based on that report unless otherwise noted.
(*3) Refer to Yosuke Okada, “Tokkyo Seido No Hou To Keizaigaku(*2)(Law and Economics of Patent System)”, Financial Review,
(*1)
(*3)
No. 46, p.110-137, 1998.

IIP Bulletin 2002

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development has been intensifying in the IT-relatedindustry. In technical fields such as information
storage and communication, which are related to
the IT-related industry, the total share of the top 10
applicants has been consistently declining (Fig. 2),
and the intensification of competition in researchand development can be seen from patent information
alone.(*4) It should be noted that the intensifying
competition in research and development in suchindustries is also promoted by the expansion of the
fields of technology subject to patent, which is a partof the “pro-patent policy.” In fact, as symbolized bybusiness model patents, there have often beencases where businesses and companies, which had
nothing to do with patent in the past, appear as
patentees.(*5) As a result of this, patentees arepresumably diversifying in various industries,
especially in the IT-related industry.
It is thought that the intensification ofcompetition in research and development withchanges in the trend of patent application from the
1990s onward (intention toward the acquisition ofrights/diversification of patentees) has occurred asa result of the “broader protection.”Fig. 1 Share of the Number of Patent Applications and Share of the Number of Patent Registrations
by Technical Field

Share出願件数シェア(％)
of the top ten applicants (%)

Changes in Shareof the Number of Applications
出願件数シェアの推移
30.00
25.00

Ａ
Ｂ
Ｃ
Ｄ
Ｅ
Ｆ
Ｇ
Ｈ

20.00
15.00
10.00
5.00
0.00
1990 1991年
1991 1992年
1992 1993年
1993 1994年
1994 1995年
1995 1996年
1996 1997年
1997 1998年
1998
1990年

Share of登録件数シェア(％)
the top ten applicants (%)

登録件数シェアの推移
Changes in Shareof the Number of Registrations
25.00
Ａ
Ｂ
Ｃ
Ｄ
Ｅ
Ｆ
Ｇ
Ｈ

20.00
15.00
10.00
5.00
0.00
1990年
1990 1991年
1991 1992年
1992 1993年
1993 1994年
1994 1995年
1995 1996年
1996 1997年
1997 1998年
1998

Note: Letters A to H indicate International Patent Classification sections.
(*4) This trend itself is observed in technical fields such as not only information storage and communication but also
biotechnology (see Fig. 2).
(*5) According to the questionnaire survey conducted in this study, the rate of those who answered “broader protection (expansionof protection to new fields) played a role in increasing the number of patent applications” is prominently high among financial
companies/think-tanks/TLOs, etc. (61.5%) compared to the overall number (overall average is 24.1%). This figure probably
reflects the above-mentioned point. In an interview survey to electricity-related companies in this study, respondents
answered “the emergence of new patentees due to the expansion of protection to new fields and the progress of intellectual
property right administration were big changes in the environment surrounding patent in the 1990s.”● 121 ●IIP Bulletin 2002

Share of the top ten applicants (%)

Fig. 2 Changes in Share of the Top Applicants in Some Advanced Technical Fields
880
0
770
0
660
0
550
0

Biotechnology

4400Information storage
Telecommunication

330
0
220
0
110
0
00

1988

1991

1994

1997

Note: According to the International Patent Classification, biotechnology is understood as C12, information storageas G11 and telecommunication as H04.

2

Diversification of Patentees and Economic
Effects of “Broader Protection”

In general, if the scope of patent protection isdetermined narrowly, research and development
incentive of inventors of improved technology
will be enhanced while development incentive of
inventors of basic technology will be hindered. Whentechnical innovation is carried out in a cumulative
way, the effect of crucially hindering development
incentive for basic technology involves the risk of
stopping the progress of the technical innovation.
On the contrary, if the scope of patent protection isdetermined broadly, evelopment incentive for basic
technology will be enhanced, leading to further
technical development and thus having a positiveeffect on society.
There is also the possibility of “broader
protection” having an adverse effect on society. Firstof all, competitions will, in fact, frequently occur inresearch and development alone in cumulativetechnical innovation that consists of basic technologies
and improved technologies. In such case, “broader
protection” may lead to decline in profits from
improved technologies as well as research anddevelopment incentive. Secondly, current technicalinnovation is proceeding not only cumulatively but alsowith a systematic characteristic by which products areproduced relying on multiple technologies. Thus, if
there are different patentees for different technologies,
each of the patentees does not consider the impact
on other patentees, so the patentees come to have
incentive to excessively exercise their patent rights,
and the development of technical innovation ishindered by the promotion of excessive exercise of
the rights (“Tragedy of Anticommons”).(*6) It
requires attention that such competition in researchand development and the hindering effect of “broader
protection” through “Tragedy of Anticommons”
occur since “broader protection” brings about lackof coordination among patentees.
However, noting that such effect of hinderingresearch and development incentive arises due tolack of coordination among inventors, a means topromote coordination among inventors in advance
may contribute to maintaining inventors’ researchand development incentive. Specifically, as shown
by Green and Scotchmer, inventors’ research anddevelopment incentive is maintained by protecting
patent rights broadly while ensuring advancecoordination among inventors through advancelicensing and joint research and development.(*7)
Therefore, “broader protection” is beneficial tosociety in terms of technical innovation in whichinventors can be sufficiently coordinated in advancethrough licensing, etc.
As revealed in the above discussion, a policy ofstrengthening the protection of patent rights may
have both positive and negative effects on theeconomy. Therefore, it can be said that in examining
the economic effects of Japanese “pro-patent policy,”
it is an urgent task to conduct careful experimental
study through collection and utilization of moredetailed data.

Ⅱ “Pro-Patent Policy” and Trend ofLicense Contracts
The analysis of changes in licensing conditions
such as licensing price becomes a key to verify theeffects of the “pro-patent policy” which has been
carried out in Japan since the latter half of the
1990s. This is because it is considered that changes(*6) Regarding the “Tragedy of Anticommons,” refer to Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter
Innovation? The Anticommons in Biomedical Research, 280 Science, pp. 698-701 (1998).
(*7) Refer to Jerry R. Green & Suzanne Scotchmer, On the Division of Profit in Sequential Innovation, 26 Rand Journal of
Economics, pp. 20-33 (1995). In this regard, Howard F. Chang, Patent Scope, Antitrust Policy, and Cumulative Innovation, 26(*6)(*7) suggestion.
Rand Journal of Economics, pp. 34-57, (1995) also gives beneficial

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in intellectual property policy take time to have aneffect on research and development, but have aneffect on licensing negotiation more promptly. The
effects of the “pro-patent policy” on licensing
conditions are straightened out below from thetheoretical viewpoint. It is examined by mainly utilizing
aggregative data by industry, which was published by
the National Institute of Science and Technology Policy
as the annual report of “Analysis of Introduction of
Foreign Technologies,” whether the effect of the“pro-patent policy” can be found in changes in licensing
conditions from 1995 onwards and what effects
increasing licensing price has on the utilization oftechnologies and follow-up research and development.
1“Pro-Patent Policy” and Trend of License
Contracts

Granting patents to inventions in new fields suchas software, expanding the scope of protection of
inventions based on the equivalent doctrine, increase incompensation for damage and strengthening thelegality of refusal to license have been conducted as thepart of the “pro-patent policy.” Such strengthening ofintellectual property rights has, first of all, the effect ofincreasing the licensor’s bargaining power tolicensees in licensing negotiation. This effect arises
because since intellectual property rights have beenstrengthened, if license contracts are not concluded,
profits that licensors can acquire will increase whilelicensees’ profits will decrease. Secondly, it also has
the effect of restraining infringement by third parties(competing companies other than licensor andlicensee as well as consumers). This effectincreases profits which licensees will gain if
licenses concerned are put into practice. These two
effects act in the direction of increasing license fee.
2

Trend of Intellectual Property Rights
Subject to Licensing

Verification is conducted below on the rate oftechnical licenses that were introduced from overseas
by Japanese companies to which a patent license

was attached (hereinafter referred to as “patent
attachment rate”) from the 1980s to the 1990s.
In Fig. 3 below, the patent attachment rate forlicense contracts in industrial fields where researchand development is highly intensive (electricmachinery, precision machinery and chemistry) is
compared between the first half of the 1980s(1981-86) and the latter half of the 1990s (1995-98).
For 8 out of 11 types of business, the patent
attachment rate has been increasing. In terms of
the electronic computer industry that centers on
software contracts, the rate increased from 6.9% in
the 1980s to 9.6%, and in the sector of medical
supplies, the rate increased from 47.6% to 69.2%.
As for the latter, the rate was 81% in fiscal 1998. As
such, patents have been becoming more important
in individual industries where research anddevelopment is highly intensive.
3

License Fee and Decisive Factor Thereof

License fee is the total of initial payment andrunning royalty (hereinafter referred to as royalty).
The secular change thereof is seen below by using
the following indicators: (1) rate of contracts that
require initial payment among commutative
contracts (hereinafter referred to as “initial rate”)
and (2) rate of contracts in which royalty is 8% orhigher among royalty contracts (hereinafterreferred to as “high royalty cases”).
First of all, when looking at the entire
manufacturing industry, the initial rate increased in
the first half of the 1990s compared to the first half ofthe 1980s, but it slightly decreased after that, so there
has been no change that reflects a trend. However,
the rate of high royalty cases almost doubled from
14% in the first half of the 1980s to 27% in the latter
half of the 1990s (Fig 4). Licenses with high rate ofroyalty have increased as such under the large
influence of increase in the ratio of electronic
computer-related patents (i.e. software patents). It isbecause the rate of licenses with high rate of royalty ishigh in the electronic computer- related field.

Fig. 3 Changes in Patent Attachment Rate in High-Tech Industries
ラジオ equipment
・ テレビ ・ 音響器具
Radios, TVs, soundの他 の 電子
応 用装 置Other electronic そapplied
devicesOrganic
有機 chemistry
化学
電 子 parts/devices
部 品 ･ デ バ イ ス
Electronic
そ の 他machineryの 電 気 機 械
Other electric
医薬 supplies
品
Medical

有 線 ・ 無線 通 信 機 械
Wire/wireless communication
machinery

Electric machinery for power generation/power
発送電・ 配電・ 産業用電気機械
transmission/power distribution and industrial use

Latter half of 1990s
90年代後半(95-98)(1995-98)
1980s (1981-86)
80年代(81-86)

精密機械
Precision machinery
脂 oil/soaps,
加 工 ・ 石 け etc.
ん 等
Processing油 of(%)

電子 computers
計算機Electronic

0.0

10.0

20.0

30.0

● 123 ●

40.0

50.0

60.0

70.0

80.0

90.0

100.0

IIP Bulletin 2002

Fig. 4 Changes in Licensing Conditions (Manufacturing Industry)
100.0
90.0

1980s
(1981-86)
80年代(81-86)First
half of 1990s(1990-94)
90年代前半(90-94)

80.0

Latterhalf of 1990s (1995-98)
90年代後半(95-98)

70.0
60.0
50.0
40.0
30.0
20.0
10.0
0.0

Rate of有償率
commutative イニシャル率
Initial rate
contracts

8%or higher
８％以上

Cross license
Rateof contracts to which
独占権
商標ありの割合
クロスライセンス
Monopolytrademark is attachedFig. 5 Changes in Licensing Conditions (Medical Supplies)
100.0
90.0

1980s (1981-86)
80年代(81-86)80.0First half of 1990s(1990-94)
90年代前半(90-94)
Latter half of 1990s (1995-98)
90年代後半(95-98)

70.0
60.0
50.0
40.0
30.0
20.0
10.0
0.0

Rate of有償率
commutative イニシャル率
Initial rate
contracts

８％以上
8%or higher

Cross license
Rateof contracts to which
独占権
商標ありの割合
クロスライセンス
Monopolytrademark is attachedFig. 6 Changes in Licensing Conditions (Electronic Computers)
120.0
1980s (1981-86)
80年代(81-86)
First half of 1990s(1990-94)
90年代前半(90-94)
Latter half of 1990s (1995-98)
90年代後半(95-98)

100.0

80.0

60.0

40.0

20.0

0.0

Rate有償率
of commutativeイニシャル率
Initial rate
contracts

IIP Bulletin 2002

8% or higher
８％以上● 124 ●

Cross license
Rateof contracts to which
Monopoly
独占権
商標ありの割合
クロスライセンス
trademark is attachedNext, the medical supply industry, which isconsidered to have been most strongly influenced
by patent-related policy changes, is examined.
According to Fig. 5, both the initial rate and therate of high royalty cases increased from the firsthalf of the 1980s to the first half of the 1990s, andthey further increased in the latter half of the
1990s.(*8) In particular, the rate of high royalty
cases increased from 20.5% to 25.3% and then to
30.7%. Such increase in the rate of high royalty
cases conforms to increase of royalty payment(including payment to both domestic and foreigncompanies) in sales of major pharmaceuticalcompanies. On the other hand, the rate ofmonopolies decreased period by period, and therate of contracts to which trademark is attachedalso decreased in the 1990s from the 1980s.
Moreover, the rate of cross licenses increased in
the 1990s (However, these changes are notstatistically significant). Evaluating the whole, it
can be said that licensing price increased in thelatter half of the 1990s.
Lastly, the trend of contract conditions is
examined for the electronic computer industry inwhich over 90% of licenses concluded in the 1990s
were software licenses. According to Fig. 6, theinitial rate slightly decreased in the 1990s. In theelectronic computer industry, the rate of highroyalty cases is remarkably higher than that inother industries. The rate increased in the 1990s
more than in the 1980s, but was lower in the latter
half of the 1990s than in the first half thereof. Whenlooking at the data by year, the rate of high royalty
cases has been declining every year since 1995. On
the other hand, the rate of licenses to which
trademark right is attached has been slightly
increasing from the low level, but regarding the rateof monopolies and that of cross licenses, there has
been no big change that reflects a trend. Therefore,
it can be said that there has been no sign ofincrease in license fee despite the grant of patents
to software.
4

Conclusion

As conclusions of the above analysis, the“pro-patent policy,” such as granting patent toinventions in new fields, expanding the scope ofprotection of inventions by the equivalent doctrine
and increase in compensation for damages, isfirstly expected to increase the patent attachment
rate in research and development-based industries.

According to the trend of license contracts, whichwere reported based on contracts for technology
introduction into Japan, the patent attachment rateof software license contracts has been rapidly
increasing especially since 1996 when software
became patentable. Secondly, the pro-patent policy
is expected to bring about increase in license fee. In
the latter half of the 1990s, license fee in newcontracts rose considerably in the medical supply
industry. However, the fields of technology subject
to licensing expand at the same time, so total
license fee may not necessarily increase. In theelectronic computer field, despite that software
patents have become included in license contracts,
no shift to increase in license fee has been seen.
Therefore, it can be said that the “pro-patent
policy” has an effect on licenses in some industries
but not much in other industries.

Ⅲ Axes of Experimental Economic
Analysis concerning Patent
The economic analyses of patent which havebeen conducted so far are roughly divided into two
types, ideal model-based analysis and data-based
analysis. It is aimed here to give an overview of theexperimental study approach that includes bothtypes of analysis. In order to sort out accumulated
studies which aim to experimentally understand amechanism by which patents influence economic
activities such as innovation, it is first of allnecessary to sort out the “axes of issues andconcerns” in the studies. Five axes of issues andconcerns are examined below.
1“Cycle of Intellectual Creation” Modified
by Making Additions

The “cycle of intellectual creation” alreadypublished can be considered to be a model that wasmade by paying attention to mainly financial
incentive and disregarding other elements. To put it
another way around, inputs other than money are
not taken into account in the model. It can be said
that the verification of effects of elements otherthan money has been the subject of experimental
study in the economics. The “cycle of intellectual
creation” which was modified by making additions
in consideration of elements other than money isshown as Fig. 7.

(*8) Such increase is also significant from the statistical viewpoint. For example, regarding the rate of high royalty cases inwhich royalty is 8% or higher, the average and the standard deviation (within parentheses) are 20.5% (1.49%) in the firsthalf of the 1980s, 25.3% (1.55%) in the first half of the 1990s and 30.7% (2.22%) in the latter half of the 1990s, respectively.
The rate increased by 5% from the first half of the 1980s to the first half of the 1990s as well as from the first half of the
1990s to the latter half of the 1990s, showing statistically significant changes.
(*8)● 125 ●IIP Bulletin 2002

Fig. 7 “Cycle of Intellectual Creation” Modified by Making Additions
Knowledge as common property ofsocietye(Back-flow of knowledge)ePrivately owned/tradableknowledge

Researchers
Researchfunds/facilities

c

e

e

Inventions(basic/applied)(process/product)(Back-flow of funds)(Publication)dgWorkingin-house

Application(Competition in product market)(Complementarity of technologies)

f

Registration

Working by othercompanies

In the “cycle of intellectual creation” modified
by making additions, there are at least five issues andconcerns as follows, and these are considered to beforming the fields of experimental study (excluding
the issue of collaboration between universities or
public research bodies and industry).
c Mechanism of research and development as
such, relations between inputs into research anddevelopment and outcomes (inventions), ideal
research and development organizations, incentive
for researchers such as employee’s inventiond Whether or not to file a patent application for
an invention
e Distribution of knowledge, cumulative innovation,
learning, joint research and developmentf Working in-house/licensing to other companies,
complementary assets, competition in the productmarket, complementarity of technology, evaluationof value of intellectual property
g Intellectual property administration costs,
possibility of exercising rights or enforcing contracts,
and costs therefor
To evaluate the system, it is necessary tounderstand not only financial incentive but also themechanism of research and development itself as
well as to figure out reasons for acquiring patents,
the mechanism of the intellectual market and themarket of technology utilization and related costs.
Competitive relationship and costs for using the
judicial system are closely related to such costs. It isnecessary to not only understand but also quantitatively
comprehend the actual conditions of mutual

complementarity between technical developments(externality of research and development) andcomplementarity between mutual technology
utilization, as well as factors that provide thedifficulty of concluding contracts that enable gaining
economic profits from such complementarity andthe difficulty of excising rights. These seem to havebeen recently attracting great interest in bothexperimental and theoretical approaches.
(1) Classical Concerns about Relations among
Inputs in Research and Development,
Other Prerequisites for Research andDevelopment and Outcomes (in Relation
to the Above c)
If simplified, issue c means the question of bywhat mechanisms and in what cases innovations
occur more frequently. In order to think of this issue
experimentally, it is necessary to define theoutcomes of innovation as well as to consider how
to measure the outcomes. Then, it is explored what
inputs are necessary to achieve the outcomes ofinnovation and in what cases productivity inresearch is high. Patent has the function of giving
financial support and monopoly power toresearchers and developers ex-post. The effects
thereof on research and development are estimatedbased on financial inputs and monopoly power.
Tracing the origin of such study leads toSchumpeter.(*9) Schumpeter raised a question
concerning relations between the size of company
and innovation. This is the question of whether
innovations occur more frequently when a large(*9) Joseph A Schumpeter, Capitalism, Socialism, and Democracy, 1942.
(*9)

IIP Bulletin 2002

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company exists (in other words, in imperfectcompetition in the short term) compared to when
there is perfect competition among small companies.
Moreover, the question of whether innovations
occur more frequently when monopoly power in themarket is stronger or when many companies arecompeting separately is also related to the effectarising from the grant of monopoly power bypatents.
(2) Intention toward the Acquisition ofPatents (in Relation to d)Issue d refers to study on difference inintention toward the acquisition of patents byindustry, country or time. There is a series of world
famous studies concerning difference in intention
toward the acquisition of patents by industry, suchas the Yale Survey.(*10) The Yale Survey is a study
that researched reasons for acquiring patents andthe effectiveness of patents as means to monopolize
technologies by industry through questionnaire
surveys. Additional experimental studies thereof
have been conducted both in Japan and in Europe.
Due to achievements from these studies, it has
become a common view that the meaning of patent
is different for each industry.
In addition to differences by industry, it has
recently attracted great interest that the action of
acquiring patents changes temporally. The numberof patent applications and acquired patents enormously
increased in the U.S. in the 1990s, and it is a typicalquestion whether the numbers increased for thereason that the pro-patent policy induced the actionof acquiring patents or for other reasons.
(3) Externality of Research and Development,
Intellectual Market (in Relation to e)
Research and development does not occur
independently, but occurs when inventions
accumulate over prior knowledge. This fact hascome to be recognized by the word “cumulative
innovation.” The patent system is originally a social
means to externalize and share knowledge, so theexternality of research and development has
substantial meaning for the patent system. In otherwords, patent is not only a financial incentive toresearch and development but also a means forknowledge management in the whole society. Prior
patents on the bibliographic column of the U.S.
patents, academic studies and citations such as
reference lists containing foreign patents becomemeans for measuring externality, though they areimperfect. Prior knowledge is one of the important
inputs for innovations, so it is necessary to figureout the functions thereof in the distribution ofknowledge in the patent system from multiphasic
viewpoints.
(4) Intention toward Licensing, Technology
Exchange Market (in Relation to f)
Since income from patent licensing becomes an
incentive to research and development, it must be
taken into consideration in evaluating the patent
system. This issue is complicated since patentees
can obtain economic merits by monopoly even if
they do not obtain income from licensing. If notransaction costs are necessary, patentees must beable to obtain equal profits from in-house working
and from licensing. However, in fact, transaction
costs change due to various factors, so profits fromlicensing and those from patents cannot be
considered as the same a priori. It is, therefore,
essentially important to understand the actual
conditions such as when licenses are granted andwhat are decisive factors in determining licensing
and effects of licenses.
(5) Corporate Legal Tasks behind License
Contracts, Role of the Judicial System
and Costs (in Relation to g)
It has been pointed out comparatively recently
that judicial costs in a broad sense, such as costs forsuits, are very important in terms of the efficiencyof the patent system. This point has been attracting
attention as a new study field. In the U.S., costs forpatent-related suits amounted to $1 billion for one
year (1991), and it has been pointed out that thecosts are not negligible in comparison with costs forbasic study, $3.7 billion.(*11) If great amount of costs
were required to enforce a right alone or to monitor
workings and use a right as such as security, it
would become important to find out the functions of
the costs.
To become able to conduct experimental
economic analysis more precisely is advancement ineconomics, but it has another meaning. It isbeneficial to the entire implementation of the patent
system that each company and individual utilizing
the patent system can accurately calculate merits
and demerits at a low cost when making strategic
judgements from their own standpoints. In thissense, it is necessary regardless of study purposesof economics to lower costs for utilizing patent
information. In order to analyze patents by company,
it is necessary to count a company’s patent assets.
However, costs therefor are still high. It is desiredthat it become possible in the future to conduct
counting in which subsidiaries are included and(*10) R. C. Levin et al. Appropriating the Returns from Industrial Research and Development, 3 Brookings Papers on Economic
Activity, pp. 783-820 (1987); Wesley M. Cohen, Richard R. Nelson & John P. Walsh, Protecting Their Intellectual Assets:
Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not), NBER Working Paper w7552 (2000); Akira
Goto and Akiya Nagata, “Innovation No Senyu Kanousei To Gijutsu Kikai: Survey Data Ni Yoru Nichibei Hikaku Kenkyu(Possibility of Exclusive Possession of Innovations and Technical Opportunities: Japan-US Comparative Study by Survey
Data),” NISTEP Report 48 (National Institute of Science and Technology Policy, 1997); Anthony Arundel & Isabelle Kabla,
What percentage of innovations are patented? Empirical estimates for European firms, 27 Research Policy, pp. 127-41 (1998).
(*11)
Josh Lerner, Patenting in the Shadow of Competitors, 38 Journalof Law and Economics, pp. 463-495 (1995).
(*10)
(*11)
● 127 ●IIP Bulletin 2002

analysis by combining with other data.

Ⅳ

Balance between Protection ofPrecedingTechnology
andPromotion of Late Technology– Adjustment Measures byIntellectual Property Law andCompetition Law –Pioneer inventions that develop a new industry
must be granted a broad exclusive right meeting
their value through patents. At the same time,
excessively broad exclusive rights of pioneer patents
hinder the development of applied technologies
through cumulating improved technologies. The
government needs to implement measures thatbalance the protection of preceding technology andthe promotion of late technology. Examined here areideal intellectual property policies that balance theprotection of preceding technology and the promotionof late technology as well as the method of
implementing the balancing measure throughapplication of the competition law (Antimonopoly
Law/Antitrust Law) to licenses for intellectual
property rights.
1

Balance between Protection of Preceding
Technology and Promotion of Late
Technology-- Reservation of Theory of “Strong andBroad Intellectual Property Right”

The U.S. has been strengthening the statutory
protection of intellectual property rights since thelatter half of the 1970s. The term of copyrights was
extended to 70 years and the protection of computer
software by copyright was clearly stated. Businessmethod patent was established by the State Street
Bank decision,(*12) and the Court of Appeals for theFederal Circuit (CAFC) has been contributing to thestrengthening of intellectual property rights byconsistently making decisions that strengthen the
exclusive right for intellectual property.
However, there is a concern that the excessive
protection of intellectual property rather diminishes
innovation. In the U.S., theories that broad rights
should be granted to prior basic inventions wereprevailing in the past, but theories that rights ofprior inventions should be narrowed to promote lateinventions have become conspicuous from the
1990s onward. In order to balance the protection ofprior inventions and the promotion of lateinventions, it is necessary to put a brake on the
expansion of exclusive scope of patent rights basedon the equivalent doctrine. The Hilton-Davisdecision(*13) in the U.S. in 1995 put forward a viewthat limits the Graver Tank standard, by stating thatthe effects of prior patents do not extend to lateinventions that are substantially different fromdescriptions in the specification of the prior patents.
This is based on a view that to design inventions so
as not to infringe on prior patents is an essential
factor of competition. In the U.S., the reverse
doctrine of equivalents was established by judicial
precedents as a concept that adjusts the expansionof exclusive scope of patent rights based on theequivalent doctrine from the other end. The“reverse doctrine of equivalents” (or the doctrine of“limited equivalents”(*14)) is a view that even if a latetechnology is considered to infringe on a priorpatent according to descriptions in its patent
specification, if it made a remarkable leap from theprinciple indicated in the prior patent, it is notconsidered to infringe on the prior patent.(*15) This
viewpoint should also be adopted in Japan.
Moreover, a measure that protects computer
programs (software) as copyright started in the U.S.
and came to Japan. Due to this, like Microsoft’s
Windows, creators lock away standard works andone company monopolizes improvements of theworks and thus, basic software or platform software
becomes de facto standard, so that a monopoly
position of the standard software is perpetuated. In
this regard, however, some kind of corrective
measures are necessary such as limiting the
copyright of the original copyright holder to the part
similar to the source code of the original softwareand for other source codes, granting copyrights toonly those who improved the software concerned if
the improvement is recognized as creative. Throughthis, the right of the original copyright holder does
not extend to the improved part, and when thecreator of the original software utilizes the
improved part, he/she needs to obtain a license fromthose who improved the software. Therefore, thecopyright holder of improved software acquires
bargaining power against the copyright holder of theprior software.
2

Application of Competition Law to
Limitations under License and Refusal to
LicenseRegarding adjustment between the rights ofprior inventors and the rights of late inventors, not(*12) State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F. 3d 1368 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 851 (1999).
(*13) Hilton-Davis Chemical Co., Inc. v. Warcer-Jackson Co., Inc., 62 F. 3d 1512 (Fed. Cir. 1995).
(*14) Terminology in Shigetoshi Matsumoto, “Tokkyo Hatsumei No Hogo Hani [Shimban] (Scope of Protection of Patented
Inventions [New Edition]),” p. 390, (Yuhikaku, 2000).
(*15) For example, SRI International v. Matsushita Elec. Corp. of America, 775 F. 2d 1107 (Fed. Cir. 1985) ----- Robert P. Merges(*13)& Richard R. Nelson, Market structure and technical advance:(*14)
the role of patent scope decisions in Thomas M. Jorde & David(*12)
J. Teece (eds.), Antitrust, Innovation and Competitiveness, p.(*15)
197 (Oxford University Press, 1992).

IIP Bulletin 2002

● 128 ●

only measures under the intellectual property law
but also measures by implementing the competition
law (Antitrust Law/Antimonopoly Law) are important.
In many cases, late companies cannot engage in
research and development without obtaining licenses
for patent (or copyright) from prior inventors. In
granting a license, prior inventors generally impose
various limitations on the licensee’s way of utilizing
the subject technology. The licensee’s research anddevelopment is constrained by these limitations, so
the cumulative improvement of technology ishindered. Therefore, public policy to confine
limitations under a license is required.
It is not the intellectual property law but thecompetition law (Antitrust Law/Antimonopoly Law)that has charge of the public policy, since limitations
under a license are not exclusive rights which are
guaranteed to inventors under the intellectual
property law but they arise in contracts between alicensor and a licensee. Limitations under a contract
violate the competition law if they fall under
unreasonable restraint of competition. The
competition authorities and the courts need toestablish standards for certifying the violation of thecompetition law by considering limitations under alicense as unreasonable.
The Japanese Fair Trade Commission has
never applied the Antimonopoly Law to refusal tolicense. There are also few cases actually disputed.
On the other hand, the competition authorities andthe courts in the U.S. have rendered a great numberof orders and decisions in relation to the issue ofrefusal to license. Decisions that are informative
when applying the competition law to limitations
under a license or refusal to license in Japan havebeen rendered such as the Data General decision(*16)
in 1994, the Kodak appeal decision(*17) in 1997 andthe Xerox appeal decision(*18) in 2000.
3

Conclusion

Intellectual property rights will come to play amore important role in developing the Japanese
economy than in the past. Japan had caught up with
Europe and the U.S. in times long past, and Asianemerging countries have been catching up withJapan in the heavy and chemical industries and themachinery industries, at which Japan has excelled. It
is necessary for Japanese companies to develop
advanced high-tech industries such as the informationindustry and biotechnology. Such new industries called“new economy” are developed through innovations.
In order to achieve development, corporate andindividual efforts for innovations must be protected byintellectual property rights (patents, copyrights andtrade secrets). However, not all innovations are
pioneer inventions, and many innovations are createdthrough accumulation of improved technologies.
Therefore, intellectual property policy that balances
the protection of pioneer inventions and improved
inventions is necessary. It is necessary that the
government and the courts implement the Patent Law
including the equivalent doctrine and measures
under the Copyright Law from this viewpoint.
In advanced high-tech industries called “neweconomy,” it is normal that a company cannot
conduct research and development or manufacturing
by its own intellectual property rights alone andmust obtain licenses for other companies’
intellectual property rights. Not the intellectual
property law but the competition law (Antimonopoly
Law/Antitrust Law) has charge of regulating license
contracts. Therefore, the Antimonopoly Law, alongwith the intellectual property law, will come to playa more important role in the Japanese economy in
the future. In relation to limitations under a license
and refusal to license for intellectual property rights,
the Fair Trade Commission should instructappropriate improvement measures by judging theeffect of restraining competition and rationality as
business comprehensively. However, it is necessary
in principle to implement this by not regulatory
rules but flexible administrative guidance.

Ⅴ

Conducting
Surveyof

Questionnaire

1Survey Targets and Rate of Respondents

In this study, a questionnaire survey was
conducted to groups such as the Japan Intellectual
Property Association, small and medium venturecompanies, banks, nonlife insurance companies, life
insurance companies, securities companies, thinktanks and TLOs from December 2001 to January 2002.
373 out of 1,398 target companies responded,and the rate of respondents was 26.68%. Details are
as follows.
A. Member companies of the Japan Intellectual
Property Association: 793 target companies, 284
responding companies
B. Small and medium venture companies(*19) : 536
target companies, 76 responding companies
C. Financial companies, think-tanks, TLOs, etc.(*20):
69 target companies, 13 responding companies(*16) Data General Corp. v. Grumman Systems Support Corp., 36 F. 3d 1147 (1st Cir. 1994).
(*17) Image Tech. Servs. v. Eastman Kodak Co., 125 F3d 1195 (9th Cir. 1997).
(*18) CSU, L.L.C. v. Xerox Corp., 203 F. 3d 1322 (Fed. Cir. 2000).
(*19) Companies with capital of less than ¥1 billion other than the Japan Intellectual Property Association, banking businesses,
nonlife insurance businesses, life insurance businesses, securities businesses, think-tanks, TLOs, etc.
(*16)
(*20)
Some companies were extracted from banking businesses,(*19)nonlife insurance businesses, live insurance businesses,
(*17)
(*18)
(*20)
securities businesses, think-tanks, TLOs, etc.
● 129 ●IIP Bulletin 2002

2

Analysis of Questionnaire Survey Results

The questionnaire survey results wereanalyzed by classifying responding companies
into five groups: c A. Japan Intellectual Property
Association, d B. small and medium venturecompanies, e C. financial companies, think-tanks,
TLOs, etc., f electricity-related companies and g
medical suppliers.
(1) Effects on the Amount of Research
Investment (Q2-1a)
A large majority of respondents answered that“broader protection” has “no relation” to theamount of their research investment. However, interms of medical suppliers, 34.6% answered thatbroader protection “has played a role in increasing”
the amount of research investment, and the rate
was relatively high compared to others.
(2) Existence of Adverse Effects (Q2-1f)
When asked about the existence of adverse
effects of “broader protection,” a large majority ofcompanies answered that “broader protection” “hasno adverse effects.” However, in terms of medical
suppliers, 23.1% answered that it “has adverse
effects,” and the rate was relatively high comparedto others.

Q2-1a: Effects of Broader Protection (Expansion of Protection to New Fields)on Amount of Research Investment
2. Has played a role in
2.減少 する一 因 とな った
decreasing the amount
5.無回
答
5. No answer

1. Has played a role in
1.増加 する一 因とな った
increasing the amount
4.分か
らない
4.
I don’t
know

3.
No関係
relation
3.無Total (373 companies)
全 体 （373社 ）8.0%

81 .2 %A Japan Intellectual
Ａ 知 的 財産協 会 （284社 ）Property
Association(284 companies)

6.3%

8 7 .0 %B Small and medium
Bventure
中 小 ベン チャー（76社 ）
companies(76 companies)

15.8%

1 0.2 %

6 .3 %C Financial companies,
think-tanks, TLOs, etc.
(13 companies)

8 4 .6 %Electricity-relatedcompanies
電気
関 係（46社 ） 2.2%
(46 companies)

1 5 .4%34.6%

0%1 .3 %

91 .3 %

Medical suppliers
医 薬 品製 造 業（26社 ）(26 companies)
10%

20%

6 .5 %

5 7 .7 %30%

0 .4 %

2 3 .7 %5 9 .2%Ｃ 金 融、 シ ン クタ ン ク、 TLO他（13社 ）0 .5 %

40%

50%

60%

7 .7 %

70%

80%

90%

100%

Q2-1f: Existence of Adverse Effects of Broader Protection(Expansion of Protection to New Fields)2.
Has no adverse
2.弊害なしeffects1.
Has adverse effects
1.弊害ありTotal (373 companies)
全体（373社）

6.2%

A Japan Intellectual
Property
Association
Ａ 知的財産協会（284社）(284 companies)

6.7%

4.
No answer
4.無回答

3.
I don’t know
3.分からない

70.8%

22.5%

72.9%

B Small and medium
Bventure
中小ベンチャー（76社）
companies 3.9%(76 companies)

20.1%

67.1%

0.5%

0.4%

1.3%

27.6%

C Financial companies,
Ｃ 金融、シンクタンク、TLO他（13社）
think-tanks, TLOs, etc.

46.2%

7.7%

46.2%

(13 companies)
Electricity-related companies
電気関係（46社）(46 companies) 4.3%

Medicalsuppliers
医薬品製造業（26社）(26 companies)

10%

17.4%

53.8%

23.1%

0%

IIP Bulletin 2002

78.3%

20%

30%

40%

● 130 ●

50%

23.1%

60%

70%

80%

90%

100%

(3) Conditions of Utilization of Patents (Q2-4)
The average of all companies concerning
descriptions about conditions of utilization ofpatents is as follows. The rate of patents owned bycompanies which are worked in-house (c) is 44.3%,
while the rate of patents owned by companies ofwhich working license has been granted to othercompanies (d) is 12.2%. The rate of non-working
patents among patents owned by companies (e) is
57.5%, i.e. more than 50% of patents owned bycompanies are non-working.
(4) Future Licensing Policy (Q2-5a)
Regarding the future licensing policy, 51.5% of
all responding companies answered that they “willactively promote licensing.” 69.6% of electricityrelated companies answered that they “will actively
promote licensing.” On the whole, very few
companies answered that they “will decrease
licensing.”

Q2-4: Conditions of Utilization of Patents in Your Company Total
Itema. Number of domestic patents owned
Of which, rate of patents for which right has beenacquired overseas
b. Number of patents owned for which right has
been acquired only overseasc. Rate of patents owned which are worked
in-housed. Rate of patents owned of which working
license has been granted to other companies
Of which, rate of domestic companies
Of which, rate of foreign companies
Of which, rate of working licenses granted bycross licensing
Of which, rate of working licenses with chargee. Rate of patents owned which are non-working
Of which, rate of open patents
f. Number of patents of which working license has
been obtained from another company
Of which, rate of domestic companies
Of which, rate of foreign companies
Of which, rate of working licenses obtained bycross licensing
Of which, rate of working licenses with charge
g. Number of patents sold to others within fiscal
2000
h. Number of patents purchased from others
within fiscal 2000
within fiscal 2000

Average Number of
number of responding
patents/rate companies
1038.6
346
24.6

290

431.6

277

44.3

322

12.2
55.1
32.2

292
239
222

28.4
55.4
57.5
47.7

216
225
299
239

113.7
74.4
46.1

281
218
211

50.4
72.3

198
210

25.1

293

21.1

291

Q2-5a: Q2
FuturePolicyof Grantof約License-5a 特
許 の ライセン ス契
供 与 へ のContracts
今 後 の 方 針for Patents
2. Will keep licensing
2 .従と不 変levelatthe来current

1. Will actively promote
1 .積 極 的 に 進 める
licensing

3. Will decrease
3 .減 らして い く
licensing

4.そ
の他
4.
Other

5.無
答
5.
No回
answer3 .2 %

Total (373 全
companies)
体（373社）

4 2 .4 %5 1 .5 %2 .7 %
0 .3 %A Japan Intellectual Property
Ａ 知 的(284
財産協会（284社）
Associationcompanies)

5 6 .0 %4 1 .2 %1 .4 %
1 .4 %B Small and medium venture
B 中小 ベン チャー （7 6社 ）companies(76 companies)

3 9 .5 %4 6 .1 %5 .3 %
7 .9 %

1 .3 %C Financial companies,

TLOs,
Ｃ 金 融think-tanks,、シ ン ク タン ク 、TLO
他 （ 1 3etc.
社）

4 6 .2 %2 3 .1 %(13 companies)

1 5 .4 %1 5 .4 %Electricity-related companies
電 気companies)
関係（46社）(46

2 8 .3 %6 9 .6 %2 .2 %

Medical suppliers
医薬品製造業（26社）(26
companies)

3 .8 %

4 6 .2 %4 6 .2 %3 .8 %
0%

10%

20%

30%

(5) Costs Required for Filing Applications andMaintaining Rights (Q2-7)
Comparing costs for domestic applications andforeign applications, the average costs for domestic
applications are ¥140.6 million while the averagecosts for foreign applications are ¥228.7 million, andcosts for foreign applications are higher. When
comparing the breakdown of costs, translation fees
and annual fees for patent are especially high forforeign applications. At any rate, in fiscal 2000, theaverage number of foreign applications was about
70% of the average number of domestic applications,
so it can be said that costs for foreign applications
are higher.

40%

50%

60%

70%

80%

90%

1 0 0%

Q2-7 Costs required for filing applications and maintaining
rights in fiscal 2000 (unit: ¥1 million) Total
Cost item
Search costs (including foreign searches)
Total costs for domestic applications
Of which, costs for filing applications/intermediate processing
Of which, annual fees for patents
Of which, costs for patent attorneys
Total costs for foreign applications
Of which, costs for filing applications/intermediate processing
Of which, costs for translations
Of which, annual fees for patents
Of which, costs for patent attorneys
Compensations for inventions for inventors
Costs for dealing with right infringements/suits
Of which, costs for patent attorneys● 131 ●

Average Number ofcosts in responding
fiscal 2000 companies
23.9
244
140.6
261
48.6
27.8
50.3
228.7

200
198
181
240

79.0
20.4
41.3
52.1
16.4
43.6
14.7

157
132
158
128
225
193
147

IIP Bulletin 2002

(6) Number of Domestic Patent Applications in
Fiscal 2000 (Q2-9a)
As for the average number of domestic patentapplications in fiscal 2000, the number ofapplications filed by electricity-related companies,
1,042.5, is especially large.
Q2-9a: Number of domestic patent applications in fiscal 2000
Average number Number ofof patent
responding
applications
companies
Total
A Japan Intellectual Property
Association
B Small and medium venturecompanies
C Financial companies, thinktanks, TLOs, etc.
Electricity-related companies
Medical suppliers

413.6

359

512.9

277

3.0

72

25.7

10

1042.5

46

77.3

25

(7) Number of Patent Applications Filed
Overseas in Fiscal 2000 (Q2-10a)
As for the average number of patentapplications filed overseas in fiscal 2000, thenumber of those filed with the U.S. is highest. About
two to three times as many applications as thenumber of applications filed with other countries
were filed with the U.S.
Q2-10a: Number of patent applications filed overseas infiscal 2000 Total
Averagenumber ofapplications

Number of
responding
companies

International applications by the
Patent Cooperation Treaty (PCT)

27.2

226

U.S.

79.2

218

EPO

32.5

184

U.K.

28.3

147

Germany

33.8

158France33.4

148

China (including Hong Kong)

21.1

183

Korea

28.7

186

Other

43.1

170

(8) Questionnaire Survey as a WholeOn the whole, the majority of respondents
answered “no relation” or “I don’t know” concerning
effects on the amount of company’s research anddevelopment investment, qualitative effects, effects
on the number of patent applications, effects onbudget for patent applications, and effects on
exercise of rights by the “broader protection” and“stronger protection” of patents. It is inferred fromthis result that many companies believe that“broader protection” and “stronger protection”
rarely has direct effects on their basic patent
policies.

However, in fact, there is no doubt that patentapplications are increasing.(*21) In addition, somemedical suppliers, etc. answered that the “broader
protection” and “stronger protection” “has played arole in increasing” the amount of research
investment, in terms of effects on the amount ofresearch and development investment, qualitative
effects, effects on the number of patent applications,effects on budget for patent applications, effects on
the exercise of rights, etc. Results also indicate thata considerable number of companies are thinking ofactively promoting license contracts. It can probably
be said that “broader protection” and “stronger
protection” had some kind of effect on companies’
patent policies in some way, though not directly. A
point to be noted in this questionnaire is that the
majority of companies at least answered that“broader protection” and “stronger protection” hasno adverse effects.
Therefore, it can be probably said as a wholethat to admit “broader protection” and “stronger
protection” of patent applications, which will
increase in the future, directly leads to theactivation of license contracts between companies,
and thus, may activate the economy. As long as the
majority of companies at least answered that thepromotion of “broader protection” and “stronger
protection” has no adverse effects, it is determinedthat there is also no reason for denying pro-patent
policy in Japan.

Ⅵ “Statistical Surveys on Intellectual
Property Activities”
In a plan that aims to appropriately strengthen
the protection of intellectual property rights(promotion of the pro-patent policy) and establish
the cycle of intellectual creation in line with the“Action Plan for Reform and Creation of the
Economic Structure” (Cabinet decision in May
1997) as well as the “Plan for the Creation of New
Markets and New Jobs” which was published by the
Ministry of Economy, Trade and Industry in May
2001, it is cited as one of the challenges tostrengthen the intellectual property protection
policy from the viewpoint of increasing Japan’s
industrial technical capabilities. In developing thesemeasures, it has become extremely important tounderstand the actual conditions of utilization of
intellectual properties such as patents by companies,
etc., and it is required to conduct “statisticalsurveys on intellectual property activities” as ameans therefor. Consequently, a subcommittee was
set up to conduct examination thereon.
Specifically, the subcommittee reached theconclusion that it is most effective to prepare(*21) The “Tokkyo Gyosei Nenji Hokokusho (Annual Report on Patent Administration) 2001” also mentions the fact that patentapplications are increasing.
(*21)

IIP Bulletin 2002

● 132 ●

“questionnaires” and conduct “statistical surveys on
intellectual property activities,” so it prepared a
specific “questionnaire for survey on intellectual
property activities (draft)” that focuses on the three
viewpoints, the “conditions of utilization of theintellectual property system,” the “conditions oftransaction of intellectual property rights” and the“conditions of activities of the intellectual property
sector,” and examined survey targets.

Ⅶ Evaluation of the U.S. Pro-patent
PolicyFor the U.S., it has already been about 20 years
since the start of the pro-patent policy, and policies
and phenomena that were brought about by the
pro-patent policy have become clear. Such examples
are the establishment of the CAFC, the expansion ofpatent protection to new fields such as
biotechnology and business methods, the expansionof application of the equivalent doctrine, etc.,
changes in examination standards and theBayh-Dole Act. However, in terms of effects oninnovations and moreover, on the economy in the
U.S., it is difficult to look at effects caused by the
pro-patent policy alone apart from other various
factors. Therefore, the effects of the pro-patent
policy are still unclear. The U.S. pro-patent policy isevaluated as follows.
Not all recent patent-related policies andcourts’ decisions are those which increase profits
from inventions (for example, publication ofunexamined applications).
The pro-patent policy appears most clearly in
the CAFC and the Bayh-Dole Act. It is, however, notclear how much they increased patent premium,
except for the grant of patents to inventions in new
fields, and they probably have not brought aboutmuch increase.
The pro-patent policy appears to haveincreased the number of patents. It is, however,difficult to look at the effects of the pro-patent policy
separately from other factors such as technicalopportunities and the prediction of demand.
It is also necessary to pay attention to thenegative effects of the pro-patent policy on technicalprogress. The grant of patents to fundamental,
upstream inventions makes it difficult to makecumulative technical progress. In the field ofbiotechnology, patents have been playing a role as afactor that promotes new entries, but in other fields,
they may be a factor that plays a hindering role.
Defensive patents and increasing judicial costs also
have negative effects on innovations.
In conclusion, there has been no clear
evaluation of the pro-patent policy even in the U.S.
where the pro-patent policy was implemented
earlier and studies on the effects thereof haverelatively been proceeding.

Ⅷ SummaryThis study examined the effects of theJapanese “pro-patent policy” on the entire economy.
It was, however, difficult to find a clear answer since(1) it has been only four years since the start of thepolicy, so the effects thereof have not clearly
appeared, (2) statistics related to intellectual
property are lacking, so there are very few means toverify the effects and (3) both theoretically andexperimentally, there are few accumulated studies
that should be referred to. However, even in suchcircumstances, the following outcomes and issues
for the future were achieved.
1

Outcomes(1) “Pro-patent policy” and Trend of Licenses
Concerning the effects of the “pro-patent
policy” on the trend of licenses, this study could
clarify a relationship between the pro-patent policy
and the trend of licenses to a certain extent. It is
desired that this outcome be fully utilized for theverification of effects of the “pro-patent policy”
based on license contracts and for the planning ofeffective policies, in the future.
(2) Construction of a Model for Experimental
Study
This study had a view of theoretical analysis
that becomes the basis for promoting study on the“pro-patent policy.” It is desired that this outcome
be fully utilized for experimental studies in the
future.
(3) Preparation of “Questionnaire for Survey
on Intellectual Property Activities (Draft)”
This study also made up a “questionnaire forsurvey on intellectual property activities (draft)” toprepare statistics that will become another basis forstudies in the future. It is strongly desired that thisbe fully utilized for the verification of the “pro-patent
policy” and studies on relations between the patent
system and the economy in the future.
2

Future Issues(1) Positive and Negative Effects
The “pro-patent policy” has both positive andnegative effects on the economy. It is necessary to
promote examination to find out a system designthat extends the positive effects and restrains thenegative effects by strictly considering both effects.
(2) Balance with the Antimonopoly Law
In order to promote technical progress andcompetition, which are inseparable for economic
development, it is necessary to promoteexamination on desirable relations between theintellectual property law and the Antimonopoly Law.

● 133 ●

(Senior Researcher: Toru Takano)

IIP Bulletin 2002