Wednesday, August 31, 2016

Yamaguchi on Japanese Patent Litigation, Damages

Kazuhiro Yamaguchi has published an article in the May 2016 volume of AIPPI Journal-Japan (pages 128-42), titled Japanese Patent Litigation and Its Related Statistics--Current Environment and Future AgendaHere is a link from Mr. Yamaguchi's law firm's webpage, courtesy of AIPPI-Japan.  The article discusses some possible reasons why, despite the fact that Japan ranks third in the world in GDP as well as in number of patent applications and registrations, there is so little patent litigation (and IP litigation generally) in Japan compared to other major countries (see descriptive statistics on p.129).  The article rejects the hypotheses that it's too difficult to obtain an easily enforceable patent right in Japan, that there is a comparatively low patentee win rate, and that litigation costs are too high.  The author does conclude, however, that damages may be too low (see pp. 135-38, including a table on first instance judgments from Tokyo and Osaka in 2014 and another table listing the top 5 damages awards from 2014).  Number 1 was Case No 2011 (Wa) 16885, in the amount of ¥1,568,040,000, or about US$ 15,568,040.  One thing I find interesting is Figure 7, which compares for the years 2011-13 the amount of damages claimed (which is usually much higher than the amount awarded, as shown in table 7 and figure 6) compared with the amounts received in settlements.  I wasn't aware that the terms of settlement would be made public--perhaps some Japanese readers could provide me with some more information on this?  The author briefly notes a survey found in a report prepared by the JPO that Japanese firms are reluctant to litigate, a topic I discuss in my book at pages 288-90, 332.  Finally, he concludes with a discussion of three government reports addressing the future of patent litigation in Japan, with the most recent one (from March 2016) calling for, among other things, better procedures to collect evidence; "making it easier to calculated the amount of damages larger than the regular royalties"; "creating a database, etc. concerning regular royalties"; "making it easier to demand payment of an attorneys' fee based on the actual costs"; and for the time being, adopting "no universal restrictions on injunctions, but rather taking "[n]ecessary measures on a case-by-case basis through the doctrine of abuse of right and the competition laws" (p.140).     

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