Date of
Judgment:
18.01.1980
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure:
Judicial (Administrative)
Subject
Matter: Other
Main
text of the judgment (decision):
1. Jokoku appeal shall be
dismissed.
2. Appellant shall bear the costs of the Jokoku appeal.
Reasons:
Concerning the grounds of the jokoku
appeal by the jokoku appellant attorneys NAGAHATA Yuzo and YOSHIHARA Syozo:
It is not interpreted as preservation
right, ruled in the Civil Law Article 252 provision, for one of the co-owners
of a utility model right to bring about a lawsuit to revoke the trial decision
when the co-owners have petitioned for a trial together against the refusal
examination concerning the filing of the utility model regarding co-owning rights
and received the decision that such a petition cannot be considered.
In such a case of revocation, the
question of whether to revoke the trial decision should be decided as a whole
by all of the co-owners to the rights. The claim is an absolute joint lawsuit
that requires all of the co-owners to bring a suit together.
Basing upon the same argument, the
original decision is correct that the case should be dismissed because the
appellant, who is just one of the co-owners of the utility model, brought a
suit to revoke the trial decision. Thus, there is no illegality in the first
instance. The plaintiff’s argument cannot be
considered.
In accordance with Article 7 of the
Administrative Litigation Law, Articles 301, 95, and 89 of Civil Procedure Law,
we unanimously decide as the main text of the judgment.
(This translation is
provisional and subject to revision.)
（The copyright for this English material was assigned to the
Supreme Court of Japan by Institute of Intellectual Property.）