Under the Japanese Patent Act, Article 9, “empowerment” is required for a Japanese Patent Attorney to undertake a procedure which is disadvantageous to the client, as stated in the act:
Article 9 An agent of a person domiciled or resident in Japan (or, in the case of a juridical person, with a business office) and who is undertaking a procedure shall not, unless expressly so empowered, convert, waive or withdraw a patent application, withdraw an application for registration of extension of the duration of a patent right, withdraw a request, application or motion, make or withdraw a priority claim under Article 41 (1), file a patent application based on a registration of a utility model in accordance with Article 46-2 (1), file a request for laying open of an application, file a request for a trial against an examiner’s decision of refusal, waive a patent right or appoint a subagent.
Conversely, for other procedures there is no requirement for the attorney to be expressly empowered.
Therefore, for example, –it is typical in our office, that at the time of the “National Phase Entry” into Japan, no Power of Attorney (“POA”) is required. Also, when filing a request for examination, or an amendment and/or remarks to the JPO in response to Official Action, a POA is not required at all.
However, if the application is rejected finally and the applicant wishes to appeal, it is required that we file a POA before filing a request for a trial against the examiner’s decision of refusal.
To help streamline and economize the process for foreign applicants, we do not request any POAs until they are needed.