JAPAN Law and Practice Contributed by: Yoshiyuki Inaba, Hiroshi Nemoto, Makoto Okada and Atsushi Sato, TMI Associates
cal judges nor jury trials for intellectual property cases. In the Tokyo District Court and the Osaka District Court, there are special divisions for intellectual property matters (four divisions at the Tokyo Dis- trict Court and two at the Osaka District Court), where judges experienced in intellectual prop- erty matters hear and decide cases. The judges in these courts and the IPHC do not necessarily have technical backgrounds; the courts retain judicial research officials who have a techni- cal background to help judges understand any technology issues involved in a case (see 3.6 Role of Experts ). The courts can also appoint and request expert advisers to assist judges with any case involving advanced, complicated or specialised technology issues. Parties cannot influence who will judge a case, although a party can request to avoid a certain judge if they have reason to believe that said judge cannot be impartial due to a particular relationship with the other party (eg, being a relative of one party). 5.3 Settling the Case A judge usually takes the initiative in settlement negotiations unless the parties clearly refuse to settle a case. In no event will a defendant be obliged to settle a case. Generally, courts pre- fer settlements rather than judgments to resolve cases. A judge may disclose or imply their unof- ficial, tentative opinion on a case to the parties in order to facilitate settlement negotiations. A judge will cease settlement negotiations if one party decides and requests to receive a court
proceedings will not normally be stayed, and the courts will separately and independently make a judgment for a case. The courts can even dis- miss a claim for infringement on the grounds that the patent is invalid without needing a revocation proceeding. Therefore, it is possible for a conflict between two cases on the same subject matter to exist. However, in practice, the High Court, as the court of the second instance, will make consistent judgments so that any contradiction in the first instance will be resolved. There have been no cases where anti-suit injunctions have been issued against litigation in Japan, and it is unclear whether Japanese courts would take into account foreign anti-suit injunctions. In addition, in Japan, there is no statutory basis for granting injunctions against litigation by patentees, and there have been no examples of Japanese courts recognising anti- suit injunctions. The typical remedies available for a patentee include injunctive relief and damages. As part of injunctive relief, the patentee can request nec- essary measures to prevent further infringement, which may include the disposal of the infringing goods. While lawyers’ fees can be recovered as part of the damages, this recovery is quite lim- ited – typically around 10% of the total amount of actual damages awarded by the courts. A patentee is only entitled to seek compensa- tory damages, as claims for enhanced damages, such as punitive damages, are not permitted, even in cases of willful infringement. The Patent Act establishes certain presumptions for calcu- 6. Remedies 6.1 Remedies for the Patentee Remedies Available for the Patentee
decision rather than a settlement. 5.4 Other Court Proceedings
Even if there are any pending parallel revoca- tion or infringement proceedings, the current
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