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弁理士　田村誠治（元特許庁審査官）
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https://youtu.be/sJgjSOk72i4
音は出ませんのでぜひご覧ください

＜機械翻訳＞

About an improvement patent application based on a cross-license with a basic patent [Rewritten version]

(Q) I am considering a cross-license with someone else's basic patent.

I will file an improvement patent application based on a cross-license.

How should I refer to the basic patent in the application documents?

Or should I not refer to it?

(A) The basic patent should be listed as a [prior art document].

I will then explain that the improvement invention is an inventive step from the basic patent.

<Supplementary information>

(1) About [prior art document]

Generally, in the [prior art document] column of a patent application document,

✔ the prior art document closest to the invention is listed.

In this case, the basic patent would be the "closest prior art document."

(However, closer prior art may be discovered during the examination.)

(2) About "not being easily invented"

According to the Patent Act,

✔ an invention that can be easily invented from a publicly known invention will be rejected as a patent.

This is the so-called inventive step of the invention.

So I will explain that the improvement invention is an inventive step from the basic patent.

(3) About cross-licensing

First of all, you can think of it like this.

✔ Don't be aware of cross-licensing at the patent application stage

It is not yet certain what kind of patent will ultimately be created.

It may be a patent that does not have a cross-licensing relationship.

You don't need to be too concerned about cross-licensing with the basic patent.

I think it's fine to just think of it as a prior art document.

<Reference> About cross-licensing

There are various types of "improvement inventions."

In this case, cross-licensing is assumed.

In other words, implementing an improvement invention (manufacturing, selling, etc.)

→ At the same time, implementing the invention of the basic patent.

For example, let's say the components of the invention of the basic patent are A + B.

Examples of improvement inventions are as follows.

① A + B + C

② A + b (b is a subordinate concept of B)

① is when another component C is added to A + B.

② is, for example, about a special b, which is a subordinate concept of B.

This is when an invention is created that has a special effect when combined with A.

Whether these can be called "improvement inventions" in the original sense is another matter.

In this case, we are considering something like this.

In both ① and ②, when an improvement invention is implemented,

→ at the same time, the invention of the basic patent (A + B) is also implemented.

Therefore, even if a patent is obtained for ① or ②, the patented invention cannot be implemented.

(Even if a patent is obtained, there are cases where the patented invention cannot be implemented.)

That is why cross-licensing is done.

= Mutual license with the basic patent to implement the improvement patent invention.

I hope that this article was of some help to you.

Thank you for reading to the end.