Japanese patent litigation – fast and revocatious

On average, intellectual property cases are finally disposed of in Japan within a blistering 8 months (down from about 20 months ten years ago). Added to this is the fact that about half of patent cases are settled and about half of the remainder result in revocation of the patent.

So – if you want to enforce your patent absoloute monopoly patent rights in Japan, you have on average a 25 % chance of coming through litigation with an intact patent. (This is not taking into account those which are found not-infringed.)

By some accounts, the patentee’s chances of winning are as low as 20%-30% of litigated cases – that’s 10%-15% overall (assuming a settlement, being less than absoloute monopoly, is a ‘loss’).

Maybe there’s a better way. It makes you wonder whether a large proportion of the 50% which are settled are commenced with the aim of resurrecting by settlement, some portion of the monopoly in light of the high chance of patent invalidity?

Interestingly, Tomokatsu Tsukahara, the new Chief Judge of the IP High Court, said in a recent interview with MIP that he thinks the court is in a transitional phase – that the situation [in which many patents are invalidated] is changing. (Though he did say that he thinks that a moderate success rate for patentees in patent litigation is about 40% to 60%.)

If the estimates are correct, then allowing for non-infringement arguments, Japanese litigants should expect the pendulum to swing back towards the patentee in future cases.

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