اليابان

Date of Judgment: March 7, 1995

Issuing Authority: Supreme Court

Level of the Issuing Authority: Final Instance

Type of Procedure: Judicial (Administrative)

Subject Matter: Utility Models

Main text of the judgment (decision):

1. The judgment in prior instance is quashed.

2. This action filed by the appellee of final appeal is dismissed without prejudice.

3. The appellee of final appeal shall bear the total court cost.

Reasons:

Concerning the reasons for final appeal argued by the appeal counsels, MASUI Kazuo, IIMURA Toshiaki, KAWAMURA Yoshiteru, IMAI Hiroaki, OGURI Shohei, YOSHINO Hideo, NAKAMURA Tomoyuki, and SEKIGUCHI Hiroshi

I. According to the facts legally determined by the court of prior instance, the appellee of final appeal owned, jointly with Limited Company X, a right to obtain a utility model registration for the device entitled "magnetic therapy apparatus," and filed jointly with said company an application for a utility model registration regarding this device, but they received an examiner's decision of refusal. Then, the appellee filed a request for trial against this decision jointly with said company, but they received a trial decision not to accept the request. The appellee alone filed this action to seek revocation of said trial decision.

The court of prior instance, finding this action filed by the appellee alone to be lawful, made a determination on the merits and revoked said trial decision.

II. However, we cannot affirm the determination of the court of prior instance mentioned above, on the following grounds.

In cases where co-owners of a right to obtain a utility model registration received an examiner's decision to refuse their application for a utility model registration filed for the purpose of the right under co-ownership, and therefore they jointly filed a request for trial against this decision but received a trial decision not to accept the request, an action for revocation of the trial decision to be filed by said co-owners should be regarded as what is called an inherently mandatory joint action, which must be filed jointly by all co-owners (See 1977 (Gyo-Tsu) No. 28, judgment of the Second Petty Bench of the Supreme Court of January 18, 1980, Saibanshu Minji No. 129, at 43). This is because, to determine in such action whether or not the trial decision is illegal, is to decide whether or not the single right owned by all co-owners validly exists, and therefore the question of whether or not to revoke the trial decision must be determined in a single form. We should say that this is also intended under the Utility Model Act, which provides that where a request for a trial is filed by a co-owner or co-owners of a right to obtain a utility model registration, with regard to the right under co-ownership, all of the saidco-owners shall jointly file the request (Article 132, paragraph (3) of the Patent Act as applied mutatis mutandis pursuant to Article 41 of the Utility Model Act).

In consequence, the determination of the court of prior instance that found this action to be lawful is illegal for its erroneous construction and application of laws and regulations, and such illegality apparently affects the conclusion of the judgment in prior instance. The appeal counsels' arguments are well-grounded, and the judgment in prior instance should inevitably be quashed. In light of our reasoning shown above, this action filed by the appellee should be dismissed as unlawful without prejudice.

Therefore, according to Article 7 of the Administrative Case Litigation Act, and Article 408, Article 96, and Article 89 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

(This translation is provisional and subject to revision.)

(Translated by Judicial Research Foundation)