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)