06/20/17

An Overview and Comparison of U.S. and Japanese Patent Litigation

An Overview and Comparison of U.S. and Japanese Patent Litigation

Kyle Pietari

In recent decades, patent systems have taken a lead role in shaping the global economy. This trend has been particularly clear in the U.S. and Japan, two of the world’s largest economies that are home to two of the most utilized patent systems. Many people are familiar with how patents are enforced in one of these nations, but not the other. With globalization, patent litigation is becoming an increasingly international practice, and understanding the fundamentals of patent litigation in multiple key jurisdictions can be of crucial importance for a party to a patent dispute. 

Although the patent litigation systems of Japan and the U.S. have many similarities, their differences make each truly foreign to anyone familiar with one, but not the other. This two-part article aims to provide a thorough overview and comparison of the major aspects of patent litigation in both nations. It is written from a litigator’s perspective, to demystify the system of each nation for someone familiar with that of the other nation.

Part One covers Japan’s and the U.S.’s sources of patent law, systems for obtaining patent rights, court systems for patent litigation, and systems of legal counsel for patent law. Part Two covers the various aspects of patent litigation procedure, border control measures, and different scopes of the patent litigation industry in each nation. Throughout both Parts, conclusions are frequently drawn regarding potential litigation strategy, based on the analyses provided.

Japanese patents are of significant importance to the nation of Japan and the outside world because Japan is the nation with the third largest number of patent filings, behind only China and the United States. Japanese patent enforcement is therefore a topic of relevance to many, regardless of whether they are likely to ever engage in it. Patent litigation is a useful context in which to study Japanese litigation because of its relative importance to foreigners. At the same time, U.S. patents loom large in the global economy, and U.S. patent litigation itself is a sizable and impactful industry for patent holders, companies of all sizes, and many practicing attorneys.

This first of two articles, Part One, discusses the historical background to patent law in Japan and the U.S.; how patents are obtained in each nation; the rights a patent holder may enforce in each nation; how each nation’s system treats foreign nationals and foreign patents; the role of forum shopping in patent litigation in each nation; and, finally, professional legal counsel for patent litigation in each nation.

98 J. Pat. & Trademark Off. Soc’y 540(2016)

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