JAPAN Law and Practice Contributed by: Miki Goto, Ryo Murakami and Akihito Ishii, Anderson Mori & Tomotsune
preparatory procedure, and the arguments in their former briefs will be deemed to have been presented in the court. If a live witness testimony is given, it must be given in one of the formal oral hearings. Typically, it takes approximately six to 12 months from filing a complaint to obtain a final decision at the first instance. 6.3 Use of Expert Witnesses Written witness statements by experts are not given separate treatment to other evidentiary documents, and may generally be submitted by the parties in a civil action so long as they are relevant to the case. Live witness testimony by expert witnesses is also admissible as long as it is relevant and the court considers it necessary; however, in practice, expert evidence is not often offered by parties in Japanese trade secret law - suits. Admission of expert evidence in a particu - lar lawsuit and (even if admitted) the evidentiary evaluation thereof is up to the court’s discretion. Preliminary injunctions are available under the Civil Provisional Remedies Act. To obtain a pre - liminary injunction, an owner must make a prima facie showing of: • the owner having the right to seek a perma - nent injunction (which corresponds to the requirements for a permanent injunction); and • the necessity of a preliminary injunction, which would be substantial detriment or imminent danger that would occur to the owner if a preliminary injunction were not awarded. 7. Remedies 7.1 Preliminary Injunctive Relief
Further, in most cases, courts require the owner to post a bond to compensate for the potential damages suffered by the counterparty if the per - manent injunctions were not obtained in the end. 7.2 Measures of Damages The UCPA provides three ways to calculate damages. • If a certain product misappropriates a trade secret of the owner, the profit per unit of the owner’s product that could have been sold by the owner (if the misappropriation had not occurred), multiplied by the number of the misappropriating party’s products that have been actually sold, can be used as the amount of damages: (a) if the misappropriating party proves that the owner could not have sold a certain number of products for any reason (eg, actual sales of the misappropriating party are because of its own marketing efforts, or there are competitive alternatives in the market), the amount of profit correspond - ing to such number shall be excluded from the aforementioned amount of dam- ages; and (b) the owner is, however, still entitled to recover damages equivalent to what it would have received as royalties for the amount that the owner could not have sold itself. • If the misappropriating party has made a profit through an act of misappropriation of a trade secret, such profit can be presumed to be the amount of damages incurred by the owner: (a) the misappropriating party may rebut the presumption by proving that its profit has been brought by something other than the trade secret, such as the misappropriat - ing party’s marketing efforts, brand image
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