In the 208th Ordinary Session of the Diet on May 11, 2022, the "bill related to promotion of ensuring of security by integrally taking economic policy" was passed into a law (hereinafter, referred to as "Economic Security Promotion Law"). This law establishes four systems as "economic policy related to ensuring of security." In detail, the systems are related to the following four fields, among which we report about the "system related to non-disclosure of patent applications":
(1) ensuring of a stable supply of specified important materials (so-called "supply chain reinforcement");
(2) ensuring of a stable provision of specified social infrastructure services (so-called "cyber security of core infrastructure");
(3) support for development of specified critical technologies; and
(4) non-disclosure of patent applications.

"System related to non-disclosure of patent applications" (Chapter 5, Articles 65 to 85)
  This system aims to take measures, for a patent application for an invention which is very sensitive for security of Japan and thus should not be known to public, to suspend the publication process for the application until such a situation is resolved, and to prevent the flowing out of the sensitive invention. Below, we explain the system by excerpting a part of the articles.

1. Formulation of Basic Guidelines on Non-disclosure of Patent Applications (Basic Guidelines on Non-disclosure of Patent Applications (Article 65(1))
  The Government of Japan shall specify basic guidelines on measures for proper management of information pertaining to inventions disclosed in a specification, claims, or drawings ("Specification etc.") of patent applications, and measures to prevent the flowing out of information pertaining to inventions that, if made known to the public, would be highly likely to create a situation to undermine the nation and national security through actions taken outside of Japan ("Non-disclosure of Patent Applications").

2. Primary Screening (Sending to the Prime Minister (Article 66(1))
  When the Commissioner of the Japan Patent Office has received a patent application, and the Specification etc. disclose an invention belonging to a technical field specified by Cabinet Order in accordance with the International Patent Classification or a classification divided according thereto ("Specified Technical Field"), that could include inventions that, if made known to the public, would be highly likely to create a situation to undermine the nation and national security through actions taken outside of Japan (in a case where the invention belongs to, among the Specified Technical Fields, a technical field specified by Cabinet Order as one where a significant impact on the industrial development would be caused if the invention is designated to be kept confidential, limited to those which fall under the requirements specified by Cabinet Order), the Commissioner of the Japan Patent Office shall send to the Prime Minister documentation pertaining to the relevant patent application by the day on which a period specified by Cabinet Order as a period not exceeding three months from the filing date of the patent application elapses, in accordance with Cabinet Office Ordinance or Order of the Ministry of Economy, Trade and Industry. Provided, however, that the Commissioner of the Japan Patent Office may choose not to send the documentation, when it is determined to be obviously unnecessary to subject the relevant invention to confidentiality examination (meaning confidentiality examination under Article 67(1)) in light of the relevant invention's technological level, characteristics, or disclosure status.

3. Secondary Screening (Confidentiality Examination by the Prime Minister (Article 67(1))
  When the Prime Minister has received documentation sent pertaining to a patent application, the Prime Minister shall conduct an examination ("Confidentiality Examination"), as specified by Cabinet Office Ordinance, to determine whether or not the Specification etc. pertaining to the relevant patent application include an invention that, if made known to the public, would be highly likely to create a situation to undermine the nation and national security through actions taken outside of Japan, and it is appropriate to keep information pertaining to the relevant invention confidential in consideration of the extent of the likelihood thereof, the impact on industrial development if the invention is designated to be kept confidential, and other circumstances.

4. Designation of Confidentiality (Article 70(1))
  When the Prime Minister finds, as a result of a Confidentiality Examination, that the Specification etc. include an invention that, if made known to the public, would be highly likely to create a situation to undermine the nation and national security through actions taken outside of Japan, and it is appropriate to keep information pertaining to the relevant invention confidential in consideration of the extent of the likelihood thereof, the impact on industrial development if the invention is designated to be kept confidential, and other circumstances, the Prime Minister shall designate the relevant invention as invention to be kept confidential and notify the patent applicant and the Commissioner of the Japan Patent Office, as specified by Cabinet Office Ordinance.

5. Effects by Designation of Confidentiality (Articles 72-76)
  To the patent applicant who has received the notification of the Designation of Confidentiality ("Designated Patent Applicant"), the following provisions are applied:
  a. restrictions on withdrawing etc. of patent applications (Article 72);
  b. restrictions on working the invention to be kept confidential (Article 73);
  c. prohibition of disclosure of the invention to be kept confidential (Article 74);
  d. measures for proper management of the invention to be kept confidential (Article 75)
  e. modifications of invention-sharing enterprises (Article 76).

6. Restriction about Foreign Applications (Prohibition of Foreign Applications (Article 78(1))
  When an invention made in Japan that has not been made public is an invention under the provisions of the main clause of Article 66(1), no person may file a foreign application (meaning a patent application in a foreign country, and an international application pursuant to the Patent Cooperation Treaty signed in Washington on June 19, 1970, excluding those specified by Cabinet Order) stating the relevant invention, excluding the following cases:
  (1) when the person has received a response that it is obvious that making the invention public will not impact the nation and national security through actions taken outside of Japan (Article 79(4));
  (2) when a patent application has been filed in Japan while stating the relevant invention in the Specification etc. and the period specified by Cabinet Order as a period not exceeding ten months from the filing date of the relevant patent application has elapsed (excluding when a notification of Designation of Confidentiality has been received, and when the relevant patent application has been dismissed, abandoned, or withdrawn before the relevant period has elapsed);
  (3) when a notification of sending from the Commissioner of the Japan Patent Office (Article 66(3)) has not been made within the period provided in the main clause of Article 66(1) (excluding when the relevant patent application has been dismissed, abandoned, or withdrawn before the relevant period has elapsed); and
  (4) when the person has received a notification of the Commissioner of the Japan Patent Office that the invention does not fall under the case where a notification should be sent (Article 66(10)), a notification of the Prime Minister that it was determined that Designation of Confidentiality is unnecessary (Article 71), or a notification of the Prime Minister when the Prime Minister has cancelled Designation of Confidentiality or when Confidentiality Designation Period has expired (Article 77(2)).

7. Compensation for Losses (Article 80 (1))
  The national government shall compensate for losses that would ordinarily arise for persons due to having not received authorization of the Prime Minister for working inventions to be kept confidential (including inventions for which the Designation of Confidentiality has been cancelled, or the Confidentiality Designation Period has expired) (the proviso of Article 73(1)), due to having conditions attached to the authorization of working required for preventing the flowing out of information pertaining to the inventions to be kept confidential (Article 73(4)), or otherwise due to having received the Designation of Confidentiality.

8. Enforcement Date
  This law will be enforced on the date specified by Cabinet Order, not exceeding nine months counting from the date of promulgation (May 18, 2022), except some provisions.

9. Our Impression
  This system has a large impact on private companies' innovation and research, and the main concern for private companies is probably which technical fields are subject to the examination for non-disclosure of patent applications.
  According to expert panel recommendations, the "specific image of inventions subject to the system" is based on extremely sensitive inventions, from the nation security standpoint, among single-use (military) technologies that lead to the development of nuclear weapons etc. As for single-use technologies, the inventors and related parties are aware of their sensitivity, so it is considered that there will be few problems in the operation of the system. On the other hand, many of the technologies available for military use are dual-use. According to the recommendations, as for dual-use technologies, the application of the system should be limited to cases where there is little hindrance to innovation by the private sector (in detail, in a case of technologies as a result of government-commissioned projects or technologies developed for protection etc., and in a case where the applicant has agreed, for example).
  Based on the above, although a certain degree of direction has been given as to what technical fields will be subject to this system, further consideration will be necessary while referring to the situation of the operation of this system etc. in the future. We will report any developments regarding this system through our Newsletters etc.

[Reference]
・Recommendations on Economic Security Legislation, Expert Panel on Economic Security Legislation, February 1, 2022, pp. 43-53
・https://www.sangiin.go.jp/japanese/joho1/kousei/gian/208/meisai/m208080208037.htm