JAPAN Law and Practice Contributed by: Yoshiyuki Inaba, Hiroshi Nemoto, Makoto Okada and Atsushi Sato, TMI Associates
2.11 Initial Pleading Standards A complaint must contain both parties’ names and addresses, the plaintiff’s lawyer’s name and address (if appointed), the gist of the demand and the grounds for the demand. In particular, each accused product and act of infringing con- duct must be specified in detail, and the relevant features of the product must be described and compared with each element of a claim. In gen- eral, supportive evidence – to prove both the act of infringing conduct and the relevant features of the product – is submitted together with the complaint. A patentee is expected to conduct a sufficiently detailed investigation and analysis of a case prior to initiating a lawsuit to identify these facts and find the relevant evidence. No special provisions for lawsuits in intellectual property proceedings differ from those for non- intellectual property proceedings. It is acceptable to supplement pleadings with additional arguments. A court examines the case through periodic hearing procedures (generally once a month), and each party is allowed to add its legal/factual arguments or evidence in the course of these procedures. The plaintiff may even expand or amend the claim or statement of claim until oral arguments are concluded. However, the courts may limit such additional arguments or evidence if they consider that they would substantially delay court proceedings. 2.12 Representative or Collective Action The legal system does not allow for representa- tive or collective actions for intellectual property rights proceedings, although if the subject mat- ter of the suits is common to two or more per- sons or is based on the same factual or statutory cause, these persons may sue or be sued as co-parties.
• calculating damages if the court tentatively concludes that intellectual property rights infringement has been established. However, this will not apply where the accused infringer possessing the documents has reason- able grounds to refuse to produce them. When the court finds it necessary to determine whether there are reasonable grounds, it may demand that the person with the documents pre- sent them for review in camera. Furthermore, on 1 July 2019, the amended Patent Act introduced a procedure in which the court can determine the necessity of document production by way of in-camera procedures. The amended Patent Act also introduced a procedure that allows expert advisers to participate in such a procedure. Moreover, by way of the 2019 amendment to the Patent Act, an inspection system was introduced on 1 October 2020, under which an inspector designated by the court will be entitled to enter into the factories, offices, etc, of a defendant and collect evidence necessary to make a decision on the existence of facts regarding the alleged infringement. However, the requirements for conducting an inspection are strictly stipulated as follows: • it can be deemed that it is necessary to col- lect evidence (necessity); • there are reasonable grounds for suspecting the existence of patent infringement conduct- ed by the adverse party (probability); • it is expected that no other means can be uti- lised to collect evidence (replaceability); and • it is not considered inappropriate to conduct an inspection due to an inappropriate burden being placed on the adverse party or any other circumstances (appropriateness).
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