JAPAN Law and Practice Contributed by: Yoshiyuki Inaba, Hiroshi Nemoto, Makoto Okada and Atsushi Sato, TMI Associates
4.4 Revocation/Cancellation and Infringement
If courts find that there is patent infringement, the courts will either: • make recommendations for settlement after disclosing their opinions; or • proceed to the second stage (the stage for examination of damages). It is assumed that three court hearing dates are held at the second stage, and both parties make arguments and counterarguments with regard to the amounts of damages. Then, the courts will either: • conclude oral arguments and render judg- ments after forming final opinions on the amounts of damages; or • make recommendations for settlement after disclosing their opinions. However, as the progress of trials (including the number of court hearing dates) depends largely on the complexity of cases, trials rarely proceed as envisioned in the above trial model, and in complex cases, trials are often prolonged for much longer than the trial model. According to the statistics provided by the Intel- lectual Property High Court, the average time intervals from commencement to disposition in intellectual property-related civil cases in 2023 were 14.9 months (in all district courts) and 7.6 months (in all high courts). In patent litigation, examination of fact wit- nesses or experts is rarely conducted. In cases of examination of witnesses, opportunities for cross-examination are provided. 5.2 Decision-Makers A case is determined solely by a legal judge. The Japanese legal system has neither techni-
In patent or utility model infringement litiga- tion heard before the courts, both infringement and invalidation issues may be heard together because the defendant may challenge the valid- ity of a patent or utility model registration as a defence before a court. The courts examine both infringement and validity together and render a decision based on the examination of infringe- ment and/or validity. 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights There are no specifically applicable provisions with respect to trial and settlement for intellec- tual property rights proceedings. However, in practice, the trial will be divided into two parts. At the first stage (the stage for examination on infringement), the court focuses on determining whether the infringement of the intellectual prop- erty right is established. At the second stage (the stage for examination of damages), a court will assess the damages incurred by a plaintiff only after it has tentatively concluded the establish- ment of the infringement. In this regard, the Intellectual Property Division of the Tokyo District Court has a trial model for patent infringement litigation. According to this trial model, it is assumed that six court hearing dates are held at the first stage (stage for exami- nation on infringement). If courts find no patent infringement, they will either: • make recommendations for settlement after disclosing their opinions; or • conclude oral arguments and render judg- ments.
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