Since 1986, it has been possible to request accelerated examination of a Japanese patent application. While the number of requests has increased significantly since the initiation of the program, there was still a need for an even faster examination. Therefore, on October 1, 2008, the Japanese Patent Office ("JPO") began a pilot program of "Super Accelerated Examination" ("SAE") to provide for even faster examination.
For an application to be eligible for SAE, the following requirements must be met:
- The application must be a direct national filing. An application which is a national phase entry of a PCT application, while eligible for accelerated examination under the current system is not eligible for SAE;
- The invention must be in use or will be used within two years from the date of filing a request for SAE;
- A corresponding application has been filed with at least one non-Japanese patent office;
- A request for examination has been filed, but the application has not yet been examined; and
- All filings must be conducted through the JPO online filing system.
In addition to these requirements, the applicant must conduct its own prior art search and comment on the differences between the prior art and the invention.
If the Japanese Patent Office determines that the application is eligible for SAE, then the application should be examined within about a month. The applicant will then have a non-extendible term of two months to file a response and the Japanese Patent Office will issue the next action, which may well be a final decision one month later.
It is estimated that about 100 requests for SAE have been filed since October 1 and that examination has taken place promptly after the request has been made. However, it is unclear how widely the system will be used by non-Japanese applicants. Most applications filed by non-Japanese applicants are national phase entries, which are not eligible for this system. In addition, many U.S. applicants are hesitant to make statements about prior art that could be used against them in patent litigation in the future.
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