Abstract
AbstractThis article develops a comparative analysis of specialised courts in intellectual property across both Japan and the US. This article considers the IPHC through the lens of the CAFC to investigate the differing institutional impact and illuminate the most pressing issues in Japanese patent law that have emerged as a result of transplanting this specialised court. Rather than a more conventional analysis of the implementation of these institutions, this article focuses instead on a comparative investigation of the soft law elements that have significantly influenced their effectiveness, providing a different insight on the relationship between these institutions and their broader contextual impact.The main findings of the comparative analysis are found in two primary areas – the impact of specialised courts on the consistency and reliability of patent law; and secondly, recommendations regarding the potential reform of Japanese patent law as it relates to the role of the IPHC. In terms of reform, this article analyzes the double-track problem in Japanese patent law and the key role that, with some modification to the court/patent office relationship, the IPHC could play in addressing this issue with a more fundamental realignment of patent law with its Continental history.
Highlights
The main findings of the comparative analysis are found in two primary areas – the impact of specialised courts on the consistency and reliability of patent law; and secondly, recommendations regarding the potential reform of Japanese patent law as it relates to the role of the Intellectual Property High Court (IPHC)
This article considers the IPHC through the lens of the Court of Appeals for the Federal Circuit (CAFC) to investigate the differing institutional impact and illuminate the most pressing issues in Japanese patent law that have emerged as a result of transplanting this specialised court
The main findings of the comparative analysis are found in two primary areas – the impact of specialised courts on the consistency and reliability of patent law; and secondly, recommendations regarding the potential reform of Japanese patent law as it relates to the role of the IPHC
Summary
The economic development of that period was tightly integrated with a strong focus on manufacturing precisely because of the legal environment that the post-war years created – with restrictions on the types of technologies that could be developed, Japanese manufacturers and their closely linked supply networks were able to expand production and development of light machinery and consumer electronics.. Court with subject-matter jurisdiction - the compromise in the implementation being that the IPHC would be created from the existing IP divisions of the Tokyo High Court (which already had significant expertise in intellectual property disputes). This integration and role in harmonisation go further than considering the personnel of these institutions and is fundamentally linked to the jurisdiction of the IPHC itself. It is important to note that this tight integration of technically-skilled professionals with the judges of the IP High Court is an essential element in offsetting the technical difficulty of intellectual property and supplementing the general training background typical of judges. While JPO examiners have scientific backgrounds, as well as specific training for building expertise with new examiners, the judges of the IPHC are required to have qualified as a judge. One of the organisational hurdles in establishing the IPHC was ensuring that the court would be adequately staffed by appropriately-qualified judges. The extensive use of technical advisors in the Japanese system is a feature that distinguishes the IPHC from other international examples of specialised intellectual property courts and is one of the important ways that the IPHC promotes harmonisation – by introducing technical experts who are there to advise the judge on the technology under discussion, and not advocating on behalf of a party or party’s interest
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