JAPAN Law and Practice Contributed by: Yoshiyuki Inaba, Hiroshi Nemoto, Makoto Okada and Atsushi Sato, TMI Associates
8. Costs 8.1 Costs Before Filing a Lawsuit With respect to patent infringement litigation in Japan, costs normally incurred are for: • investigating a product or method; • conducting searches for prior art references; • sending warning letters; and • preparing for litigation. 8.2 Calculation of Court Fees Stamp fees and expenses for delivering docu- ments are required in order to file a lawsuit in Japan. The amount of stamp fees is calculated according to a formula prepared by the court based on the value of the subject matter of the suit. 8.3 Responsibility for Paying the Costs of Litigation In general, the losing party typically pays court costs – including stamp fees, expenses for deliv- ering documents, and daily allowances for wit- nesses. However, the allocation of these costs is at the court’s discretion. The court may also assign a portion of the costs to the winning party based on the extent to which their claims were not accepted. It should be noted that court costs do not include lawyers’ fees, and thus, generally speaking, each party must bear their own lawyers’ fees. A plaintiff may seek compensation for their law- yer’s fees as part of damages, but the recovery rate is left to the court’s discretion and is usually quite limited, even if the plaintiff wins the case (in practice, around 10% of the total amount of actual damages admitted by the courts).
The above refers to judgments for injunctions of the first instances in main lawsuits. On the other hand, if right-owners request preliminary injunc- tions separately from (or in parallel with) the main lawsuits and the first instance courts grant the requests and issue preliminary injunction orders, it is difficult to stop enforcement of such pre- liminary injunction orders in practice, although there is a legal way to challenge such preliminary injunction orders (see 2.7 Interim Injunctions ). 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings Generally, there are no special provisions con- cerning the appellate procedure for patent litiga- tion. However, the IPHC has exclusive jurisdic- tion over appeals from decisions made by the Tokyo District Court and the Osaka District Court on patent litigations. A court normally consists of three judges, but if the case includes an impor- tant issue of law, five judges may sit to consider the matter and deliver their opinion. 7.2 Type of Review As the court of the second instance, the IPHC reviews not only issues of law but also the facts from the proceedings in District Courts in the first instance. The IPHC may also conduct fac- tual findings of its own. A party may submit addi- tional legal arguments, facts or evidence to the appeal court, unless such an additional claim is considered to be causing delay to the proce- dure and to be that party’s fault. However, the Supreme Court, as the court of final instance, only reviews the legal issues of a case.
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