JAPAN Law and Practice Contributed by: Miki Goto, Ryo Murakami and Akihito Ishii, Anderson Mori & Tomotsune
5.11 Cost of Litigation A party to trade secret litigation would incur costs such as the court costs (primarily stamp fees) and attorneys’ fees. The court fees are calculated based on the monetary value of the remedies sought by the plaintiff. Attorneys’ fees vary depending on the arrange - ments with the law firm. Contingency fees are permitted as long as they are reasonable. A combination of fixed fees (payable upon the commencement of the case) and contingent fees (a certain percentage of the amount of award) is common in Japanese practice, aside from time-based fees. The Code of Civil Procedure provides that pay - ment of court fees can be extended upon a court’s decision if a party to a lawsuit is suffer - ing economic difficulties. Also, the Japan Legal Support Centre provides economic support to persons who do not have the ability to pay attor - neys’ fees. 6. Trial 6.1 Bench or Jury Trial Jury trial is not conducted on litigation based on trade secret claims in Japan. 6.2 Trial Process In typical Japanese civil lawsuits, including trade secret cases, oral hearing sessions are held in the open court one to several times at the begin - ning and ending of the litigation procedure. Dur - ing the period in between, private preparatory hearings are regularly held at the court, and the parties exchange briefs and submit evidence to the court in a preparatory manner. When an oral hearing is held after the preparatory procedure, parties state that they restate the results of the
testimonies, non-public testimonies, and attor - ney’s-eyes-only disclosure of evidence. 5.9 Defending Against Allegations of Misappropriation Defences that a trade secret defendant may assert in a trade secret litigation include the fol - lowing: • existence of publicly available information similar to the trade secret; • independent discovery – misappropriation is defined as the exploitation of information belonging to another, and the use of inde - pendently discovered information shall not be included; • lawful acquisition – only wrongful acquisition, improper disclosure and exploitation of trade secrets wrongfully acquired or improperly dis - closed are defined as misappropriation (use of information acquired through lawful means, including reverse engineering, shall not be included); • statute of limitations; • abuse of right or bad faith; • negligence of the owner – the amount of damages may be reduced depending on the degree of contribution; and • exception to protection. It is advisable for potential defendants to secure evidence on the process of independent discov - ery or lawful acquisition. 5.10 Dispositive Motions The Japanese litigation process does not have a direct equivalent to what is referred to as dis - positive motions in other jurisdictions. However, a case may be resolved before going into the merits if the claim is dismissed on procedural grounds, such as lack of jurisdiction.
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