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  1. Judicial Reform for Effective Patent Enforcement-Japan Report- ATRIP Congress August 6, 2003 Nahoko Ono, Assistant Professor University of Tokyo, RCAST nahoko_ono@ip.rcast.u-tokyo.ac.jp

  2. Contents • On-going Development • General Overview • Issues Concerned • Creation of IP High Court • Technology Expertise • Policy Implications

  3. 2002.2 Admin. Policy Speech by PM Koizumi “Science, Technology-Creation-based Nation” 2002.11 Enacted Basic Law on IP 2003.1 Admin. Policy Speech by PM Koizumi “IP-based Nation” 2001.6 Judicial Reform Committee Report 2001.12 Created Judicial Reform Headquarters 2002.10 Started IP Litigation Committee 2002.3 Created Strategic Council on IP 2002.7 Published IP Policy Outline 2003.3 Created IP Policy Headquarters 2003.7 Published IP Strategic Program Effective IP Litigation On-going Developments

  4. On-going Developments 06/21/01 -Judicial Reform Committee Report- • Even in this judicial reform committee report which covers the entire judicial system, IP litigation is specified as an issue • Reform policies include: • To reduce by half the litigation period (currently 23.1 mo.s) • To concentrate jurisdiction onto Tokyo and Osaka District Courts as substantial “patent courts” • To inject more specialized judges and research officials, and to possibly introduce professional advisers • To confer procedural representative rights for IP (patent etc.) litigation to patent agents after intensive training • To increase more expertise in regular lawyers • To reinforce ADR measures

  5. On-going Developments 06/03/02-IP Policy Outline- • Primary objective to become an “IP-based Nation” with ”rapidity and concreteness” • Significant in listing up all the specific action plans, indicating which government entity in charge • Basic view is to better circulate IP creation, protection, and exploitation, along with IP human resource development English translation (tentative) is available at www.kantei.go.jp/

  6. On-going Developments 12/04/02 -Basic Law on IP- • Underlining policy of “RAPID Reform” • Objective to promote measures for the creation, protection and exploitation of IP (Art.1) • Broad definition of “intellectual property” (Art.2): inventions, devices, new varieties of plants, designs, works and other property that is produced through creative activities by human beings (including discovered or solved laws of nature or natural phenomena that are industrially applicable), trademarks, trade names and other marks that are used to indicate goods or services in business activities, and trade secrets and other technical or business information that is useful for business activities • To establish IP Policy Headquarters under the Cabinet (Art.24), which must draft the IP Strategic Program (Art.25(1)) English translation (tentative) is available at www.kantei.go.jp/

  7. On-going Developments 07/08/03-IP Strategic Program- • Basic views succeeded from IP Policy Outline • 8 primary action plans include: • IP creation, protection, and exploitation at universities; • To enact a law concerning rapid patent examination; • Patent protection re: medical method (activities); • To create IP High Court; • Drastic reform to strengthen piracy policy and import control; • Patent policy and exploitation at international standard; • To promote content-related business; and • To establish law schools with emphasis on IP laws

  8. General Overview -Separation of Powers- • Separation of Power is guaranteed under the Constitution • Legislative Power to the Diet (Con. Art.41) • Administrative Power to the Cabinet (Con. Art.65) • Judicial Power to the Courts (Con. Art. 76-I) • However in general, the long-lasting criticism of too-big government triggered the recent structural reform

  9. General Overview -Current Judicial System- • Constitutional Court is the Supreme Court of Japan only (Con. Art.81), which functions as a final judgment body • Other inferior courts were created by law according to Con. Art.76-I • High and District courts were created based on regional jurisdiction so far • Constitution prohibits any administrative panel existed as a final judgment body (Con. Art.76-II) Supreme Court of Japan High Courts (8) (Tokyo) District Courts (50) Family Courts (50) civil criminal Admin. Review e.g. JPO Summary Courts (438) Source: Supreme Court website (http://courtdomino2.courts.go.jp)

  10. General Overview -Patent Flow- Supreme Court of Japan (Tokyo) High Court (161) (156) (10) (60) Opposition (3,536) Invalidity Trial (283) Correction Trial (220) Appeal (19,270) Infringement Action (Dist. Cts) (153) Rejected (82,540) Patents Issued (121,742) Examination Request (253,826) Patent Application (439,175) Source: JPO Annual Report 2002 (2003)

  11. General Overview -Patent Application- Source: JPO Annual Report 2002 (2003)

  12. General Overview -IP-related Cases at District Ct. level- Note: FY2002 figures are estimates based on its April-July data. Source: Supreme Court of Japan, IP Litigation Committee 5-3 (12/24/02)

  13. General Overview -IP-related Cases at High Ct Level- Note: FY2002 figures are estimates based on its April-July data. Source: Supreme Court of Japan, IP Litigation Committee 5-3 (12/24/02)

  14. General Overview -Licensing Balance- FY2001; Yen (million); ( )Intra-affiliated companies Source: IP Activities Research Report (2002)

  15. Issues Concerned

  16. 3.1. Creation of IP High Court Source: IP Policy Outline from www.kantei.go.jp/forign/policy/titeki/kettei/020703taikou_e.html with corrections added.

  17. 3.1. Creation of IP High Court -Patent Litigation Flow- Trial for Correction The court can remand the case for retrial at JPO when amendment claim has been raised (Art. 181-II) Limited to within 90 days from the date of the Trial Board’s decision (Art. 126-II) Opposition Invalidation Trial Judgment Invalid Retrial for Invalidation Judgment Invalid Dist. Ct. Suit ag/ (Admin) Appeal/Trial Appeal Dismissed Supreme Court of Japan Infringement Action Appeal High Ct. Source: JPO

  18. 3.1. Creation of IP High Court -Substantially Concentrated Jurisdiction- District Courts (50) High Courts (8) Pre-1998 Civil: 180 Admin: 554 Tokyo & Osaka: Concurrent Jurisdiction 1998 Revision Patent: 85.0% UM: 88.2% IP: 72.6% Tokyo High Court: Exclusive Jurisdiction 2004 Revision Become Exclusive Source: IP Judicial Reform Committee7-2(April 2003); 5-6 (Dec. 2002)

  19. 3.1. Creation of IP High Court -JPO Sits in Tokyo- JPO Employees (FY2002) JPO Budget (FY2002) Source: JPO Annual Report 2001 (2002)

  20. 3.1. Creation of IP High Court • “Substantially” concentrated v. IP High Court • Norm v. Reality (Generalist) (Specialist) • Creation of a Court v. Judicial Enforcement (Pro-Patent) (Neutral)

  21. 3.2. More Technology Expertise Source: IP Policy Outline from www.kantei.go.jp/forign/policy/titeki/kettei/020703taikou_e.html with corrections added.

  22. 3.2. More Technology Expertise -Legal Professionals Comparison Source: Supreme Court of Japan (based on 2000-2002 data)

  23. 3.2. More Technology Expertise -Tokyo Congestion- Source: JPO (data for 2001)

  24. 3.2. More Technology Expertise -Career Paths for IP Professionals- Bachelor in Law Bachelor in Science +UP Bar Exam Patent Bar Exam Judges: 3,094 Lawyer: 18,851 Pat. Attorney: 303 Corporate Legal/IP: 100,000(approx.) Pat. Attorney: 5,192 JPO Examiner: 1,304 Appeal- Examiner: 395 Researchers: Research Officials 20/21 total temporarily transferred to IP section Source: Supreme Court of Japan (FY2002); IP Practitioners’ Committee Report (July 14, 2003)

  25. 3.2. More Technology Expertise • Patent litigation involves more factual SCIENCE with its fast-moving advancement • Needs to organically integrate legal and science expertise • Employment opportunity open to the public with judge’s discretion

  26. Policy Implications for Effective Patent Enforcement • More technology expertise must be injected into Patent and other IP litigation • IP High Court must be created to formalistically clarify the independence of judicial power • More transparency must be improved in the judicial system especially HR • Separation of Powers must be reconsidered

  27. THANK YOU A-RI-GA-TO