July 15, 2007 The Intellectual Property High Court of Japan1 Shigenori Matsui University of British Columbia Faculty of Law July 15, 2007

The Intellectual Property High Court of Japan 2 Introduction On April 2005, Japan has established the Intellectual Property High Court (IPHC). Although it is established inside the Tokyo High Court, it has independent name and organization. It is the court exclusively dealing with intellectual property cases, especially patent, copyright, and trade marks.

July 15, 2007 The Intellectual Property High Court of Japan 3 In this presentation, I will  Briefly describe the historical development toward the establishment of the IPHC.  Outline the organization, jurisdiction, and procedure of the IPHC.  Highlight some of the noteworthy decisions of the IPHC.  Give preliminary evaluation on the establishment of the IPHC.

July 15, 2007 The Intellectual Property High Court of Japan 4 Judicial System of Japan The Japanese Constitution of 1946  Article 76, section 1: “The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.”  Article 76, section 2; “No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.”

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July 15, 2007 The Intellectual Property High Court of Japan 6 The Establishment of the IPHC Special treatment of intellectual property cases started in November 1950, when a special division was created inside the Tokyo High Court for patent cases and for appellate cases involving intellectual property. In 1953, ordinary civil divisions were assigned for intellectual property cases. On April 1, 2004, these divisions are renamed to intellectual property divisions and the grand panel was created. On April 1, 2005, these divisions were reorganized into the IPHC.

July 15, 2007 The Intellectual Property High Court of Japan 7 Background for the establishment of the IPHC  Necessity of special court because of the technicality of the issues.  Necessity for swift resolution of the disputes  Necessity of giving stronger protection to intellectual property Strategic Council for Promotion of Intellectual Property The Basic Act for Protection of Intellectual Property An Act to Establish the Intellectual Property High Court

July 15, 2007 The Intellectual Property High Court of Japan 8 Organization Although the IPHC was established as a branch of the Tokyo High Court, it has independent name and organization. Four panels consisting of three judges from four divisions and the grand panel consisting of five judges. Judicial research officials Expert commissioners

July 15, 2007 The Intellectual Property High Court of Japan 9 Jurisdiction (1) Suits against appeal/trial decisions made by JPO Suits against appeal/trial decisions made by JPO come under the exclusive jurisdiction of the Tokyo High Court, (2) Appeals from district courts in civil cases Appeals from district courts in civil cases relating to patent rights, utility model rights, rights of layout-designs of integrated circuits, and rights of the authors of a program work come under the exclusive jurisdiction of the Tokyo High Court, Appeals from district courts in civil cases relating to design rights, trademark rights, copyrights (excluding rights of the authors of a program work), rights of publication, neighboring rights, breeder's rights, and those relating to infringements of business interests by acts of unfair competition come under the jurisdiction of the relevant high court among the eight high courts in Japan, depending on where the court of first instance is located. (3) Other cases Other civil cases and administrative cases under the jurisdiction of the Tokyo High Court, that need expertise on intellectual property to conduct proceedings and make judgments on the main issues.

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July 15, 2007 The Intellectual Property High Court of Japan 11 Court Proceedings Planned hearing method was introduced. The parties are required to submit preparatory pleadings until a week before the date of the first preparatory proceeding. During the first preparatory proceeding, the judge assigned to the case will clarify the issues and notify the parties of the subsequent due date for all preparatory documents and the approximate scheduled date of rendition of judgment.

July 15, 2007 The Intellectual Property High Court of Japan 12 The court will specify the date for second preparatory proceeding for intensive hearing. The judge assigned to the case will form his or her opinion based on the opinion of the judicial research official and notify the parties of the date for oral hearing and the date for rendition of judgment. At the oral hearing, the results of preparatory proceedings are reported before the three judge panel. The court renders its judgment.

July 15, 2007 The Intellectual Property High Court of Japan 13 Some of the Notable Decisions of the IPHC Two Significant Grand Panel Decisions  The Ichitarou Case Matsushita Electric Industrial Company was suing JustSystem Corporation for patent infringement.  The Cannon Case The cannon, Inc. was suing Recycle assist Company for patent infringement.

July 15, 2007 The Intellectual Property High Court of Japan 14 Some other noteworthy cases  The Manki TV Case  The Copyright Extension Case  The Newspaper Headline Case

July 15, 2007 The Intellectual Property High Court of Japan 15 Was the Establishment of the IPHC a Success or a Failure? Swift resolution of intellectual property cases:  The establishment of the IPHC did contribute to the swift resolution of the dispute and to the stability and predictability.  However, the establishment of the IPHC did not radically change the court organization.  Moreover, the reduction of trial length has been urgent issue for the Japanese courts and the courts are attempting to reduce the civil trial length in other cases as well.

July 15, 2007 The Intellectual Property High Court of Japan 16 Showing commitment for protection of intellectual property.  The establishment of the IPHC surely did show the commitment of the Government.  However, critics argue that the Japanese courts, including the IPHC, are not giving sufficient protection to intellectual property right.

July 15, 2007 The Intellectual Property High Court of Japan 17 Conclusion Too early to evaluate the IPHC. We need to look closely how the IPHC will change the intellectual property law in Japan.