2003 JAPAN LAW: NEW INTELLECTUAL PROPERTY HIGH COURT
Keywords: Intellectual property, Courts, Patents, Code of Civil Procedure
Copyright 2004. All rights reserved Attorney Roderick H. Seeman
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In the biggest change to the Japanese court system since 1945 when the Takamatsu High Court was created,  the government has announced that it will be seeking to revise the Code of Civil Procedure by establishing a new high court for intellectual property as an offshoot of the Tokyo High Court, tentatively to be called the “IP High Court” in English. This will result in an amalgamation of  intellectual property divisions of the High Courts around the country. The hope is that with the establishment of one court, there will be greater expertise and unity in intellectual property law in Japan. At present there are a number of contradictory cases outstanding  on some intellectual property cases among the different high courts where jurisdiction now stands Reportedly an en banc panel of chief judges would decide cases where there are differences of opinion among differing panels on similar issues. Appeals would still be possible to the Supreme Court. The new plan is somewhat modeled on the system in the UK. The new court would have exclusive jurisdiction over intellectual property cases. By concentrating the cases in one court the government hopes to improve its expertise in such cases and speeding up the process. The new court may utilize technical experts as lay judges. Technical experts such as engineers who are not qualified as attorneys could still be utilized as technical judges who would work together with regular judges. Another alternative is the establishment of a panel of about 100 technical experts who could assist the judges in their cases. Hearings will be heard before panels of five judges. In addition to disputing patent office decisions the new court is expected to hear cases on patent rights infringements, copyrighted software and compensation for employee inventors of patented inventions. It has not yet been determined if other copyright cases such as for music and publications will be also covered. Such measures are apposed by the Nichibenren, the Japan Federation of Bar Associations as well as the Supreme Court itself  as such court cases do not necessarily require a high degree of technical expertise. It is expected that the new court will have 16 judges and should start operations in 2004.

In July, 2003 an amendment to the Code of Civil Procedure concentrated highly technical cases such as patent cases only in the Tokyo and Osaka courts, with the Tokyo High Court the court of appeal. The number of such intellectual property cases has doubled in the past ten years and the Supreme Court, which administers the court system, has remarkably increased the number of such judges and researchers, cutting the time to handle such cases from 34 months to 17 months.

The government is also seeking the amendment of the Patent Law and the Unfair Competition Prevention Law to permit cases where legal proceedings may be closed to the public. Although the Japanese Constitution requires that court proceedings be open to the public, in some cases, as necessary, it is not required. The government particularly wants the possibility of such closed hearings in cases involving patent cases and other similar cases where corporations may be reluctant to reveal trade secrets and technologies. The court would be empowered to require all parties to keep certain matters confidential.

The Tokyo District Court together with Waseda University have announced plans to produce an education video together with US experts to illustrate the differences between the intellectual court systems in the US and Japan and use the video for educational purposes in the new group of graduate law schools opening in April 2004 in Japan.