Japan
Answer ... Injunctions are available. The Patent Law stipulates that a patent holder or its exclusive licensee may request an infringer or a likely infringer to cease or prevent the infringing act (Article 100(1))
Japan
Answer ... The procedure for seeking an injunction is different from that for seeking compensation for damages and does not require that subjective requirements – such as proof of willful misconduct or negligence – be met. If an infringing act is objectively found, the rights holder can seek an injunction.
A patent holder or an exclusive licensee is restricted from seeking an injunction where a non-exclusive licence has been granted by an arbitration decision of the Japan Patent Office commissioner (Articles 83 and 92 of the Patent Law) or the minister of economy, trade and industry (Article 93 of the Patent Law), or where an injunction constitutes an abuse of rights (Article 1(3) of the Civil Code). As yet, no such arbitration decisions have been issued in Japan.
With regard to an abuse of rights, as discussed in question 5.1, in May 2014 the IP High Court ruled that if the holder of standard-essential patents seeks an injunction against a prospective licensee that would ordinarily be granted a licence under the ‘fair, reasonable and non-discriminatory’ condition, this is deemed an abuse of rights (2013-(Ra)1007) (Civil Code, Article 1(3)).
In addition, where the infringer sold infringing products only in the past and is unlikely to sell them in the future, the rights holder cannot seek an injunction.
Japan
Answer ... If a patent is infringed through wilful misconduct or negligence, causing the patent holder to incur losses or damages, the patent holder can seek compensation for damages in accordance with the Civil Code (Article 709)
Negligence is presumed under the Patent Law (Article 103). Therefore, the alleged infringer must prove that there was no negligence. However, it is almost impossible to prove this in Japan.
Japan
Answer ... As mentioned in question 6.13, the amount of damages is determined using one of the following methods (Articles 102(1) to (3) of the Patent Law):
- an amount which is calculated by the following formula:
a × (b-c) + d
where:
a = the profit per unit of products which would have been sold by the rights holder if there had been no infringement;
b = the quantity of articles assigned by the infringer within the production capability of the rights holder;
c = a quantity which, for whatever reason, could not have been sold by the rights holder (hereinafter called the ‘specific quantity’); and
d = the amount of money that the rights holder would have received for a licence fee for that quantity exceeding the production capability or specific quantity;
- the amount of profits which the infringer has gained by the infringement; or
- an amount equivalent to a licence fee.
To determine the amount of damages, the amount of compensation for damages which the rights holder would have received to permit the specific working of the patented invention may be calculated in light of an agreed amount between the parties on the premise that infringement has been found (Article 102(4) of the Patent Law).
Japan
Answer ... According to the Civil Provisional Remedies Law, a preliminary injunction is available only where necessary to prevent major losses or urgent risks (Article 23(2)). However, as a matter of fact, a preliminary injunction is available where a patent holder manufactures and/or sells the patented products and can prove that the alleged infringer is involved in the infringing acts.
In addition, the patent holder must make a security deposit in order to obtain a preliminary injunction.
Japan
Answer ... Unlike in the United States, punitive damages are not available in Japan. As mentioned in question 9.4, the amount of compensation for damages which the rights holder would have received to permit the specific working of the patented invention may be calculated in light of an agreed amount between the parties on the premise that infringement has been found (Article 102(4) of the Patent Law).
With regard to the amount of royalties as regulated under Article 102(3) of the Patent Law, the patent holder is free to claim an amount of compensation for damages which exceeds the amount as determined under that article (Article 105(5) of the Patent Law).
Japan
Answer ... While the patent holder may file a request for an injunction and seek compensation for damages from an alleged infringer, no further sanctions are available. The Civil Procedure Code sets forth general provisions on sanctions in litigation.
Japan
Answer ... If a witness fails to appear at a court hearing without legitimate reason, he or she must bear any court costs incurred due to his or her absence, as well as an administrative fine of up to JPY 100,000 and potentially imprisonment (Articles 192 and 193 of the Civil Procedure Code).
If a witness refuses to give testimony in court without legitimate reason, the above provisions apply mutatis mutandis (Article 200 of the Civil Procedure Code).
The same provisions apply where a witness refuses to swear an oath without legitimate reason (Article 201(5) of the Civil Procedure Code).
If a third party does not comply with an order to submit a document, it will be subject to an administrative fine of up to JPY 200,000 (Article 225 of the Civil Procedure Code).
Japan
Answer ... Japanese law does not apply the ‘loser pays’ rule, which requires the losing party to pay the winning party’s attorneys’ fees. However, if the damages claimed are based on an unlawful act, not on unjust enrichment, a certain percentage of the compensation for damages (usually 10%) is additionally awarded as the equivalent to attorneys’ fees; although this does not reflect the amount of attorneys’ fees actually incurred in practice.
Japan
Answer ... As mentioned in question 9.9, the claim for damages should be based on an unlawful act. A certain percentage of the compensation for damages is additionally awarded, although this does not reflect the amount of attorneys’ fees actually incurred in practice.