Japan’s efforts to bolster the legal system for protecting intellectual property (IP) rights reached a major milestone with the recent establishment of the Intellectual Property High Court. The new court, which is housed in the same building as the Tokyo High Court, will handle a broad range of disputes involving IP rights, including patent rights, utility model rights, trademark rights and copyrights.

It is a wish come true for the business community, which had lobbied actively for the creation of such a specialized arbitration body. In 2002, the government, in a bid to “build a nation strong in intellectual property,” set up the Strategy Council on Intellectual Property. Later in the same year, the high-powered panel announced a set of policy guidelines, including those aimed at facilitating IP litigation.

The need for an IP court is widely recognized for two reasons: First, the rampant piracy and copying of Japanese products, including animation, movies, music CDs and electronic devices, is seriously undermining the nation’s corporate interests. Second, IP trials at Japanese courts have taken an unreasonably long time because of the shortage of judges specialized in this field.

These problems received intensive attention during recent debates on judicial reform. The discussions produced a variety of specific proposals, including: creating an independent patent court to handle IP disputes; appointing technical judges from technologists; and assigning specialized attorneys to IP trials. From these and other proposals emerged an agreement to establish an IP high court.

The legal groundwork was laid by a 2003 revision to the Civil Proceedings Law. The amendment made it possible to conduct highly technical trials — those involving patent and utility model rights — exclusively at the Tokyo and Osaka district courts, which have a specialized division that handles technical cases and a team of technically qualified judges. The revision also opened the way for the appointment of outside specialists to assist judges during IP and other technical trials.

In 2004, specialists from selected fields, including medicine, architecture and intellectual property, were appointed. With the start of the IP High Court, the number of these technical assistants is expected to increase substantially, probably to more than 100. Among them will be specialists in pharmacology, biotechnology, mechanics, electricity, chemistry, applied physics and computer programming.

The IP High Court will hear appeals of rulings delivered by the Tokyo and Osaka district courts on patent and other disputes. Cases involving a range of technical fields will be handled by a “grand panel” attended by the chief judges of four specialized divisions. This is expected to increase the speed and improve the quality of proceedings.

In theory, decisions by the IP court can be appealed to the Supreme Court. In practice, however, those decisions will be considered final in most cases, because the Supreme Court accepts only special cases, such as those requiring constitutional judgment or a change in precedent. In this sense, the IP court has a very important role.

The IP High Court, an independent organization, could be compared to the U.S. Court of Appeals for the Federal Circuit (CAFC), which is said to be a good example of patent courts in the world. The CAFC, which also handles general cases, is known for its rich reserves of technical personnel. Most of its judges have an engineering degree and are assisted by technical advisers.

The new court, with a total of 18 judges, is expected to handle more than 700 IP cases a year. This puts it almost on a par with the U.S. court in the number of both judges and cases. The challenge for the IP High Court is to secure a sufficient number of judges and investigators who can rival those of the CAFC in technical competence.

In this regard, high expectations are placed in law schools as a major source of IP specialists. Students who entered these schools last year after completing undergraduate engineering courses are set to join the legal profession in or after 2008, thus increasing the number of technical judges. With more judges qualified in both technical and legal fields, IP trials in Japan will become not only efficient but effective as well.

For law schools to play such a role, though, the government must provide as much support as possible. The hope is that the new court will match its name with action by meeting the growing need for protecting intellectual property rights at home and abroad.

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