6.7 Intellectual property law

Japan's intellectual property law is a complex system that balances innovation with fair competition. It covers patents, copyrights, trademarks, trade secrets, and industrial designs, aligning with international standards while incorporating unique cultural elements.

The system has evolved significantly since the Meiji Restoration, with recent updates strengthening protection and enforcement. Key challenges include adapting to digital age issues like online piracy and AI-generated works, while maintaining a focus on international harmonization.

Overview of intellectual property

• Intellectual property (IP) forms a crucial component of Japanese law, protecting intangible assets and fostering innovation
• Japan's IP system aligns with international standards while incorporating unique cultural and economic considerations

Types of intellectual property

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• Patents protect novel inventions and technological advancements
• Copyrights safeguard original creative works (literature, music, art)
• Trademarks distinguish goods and services in the marketplace
• Trade secrets preserve confidential business information
• Industrial designs protect the aesthetic aspects of products

Historical development in Japan

• Meiji Restoration (1868) marked the beginning of modern IP laws in Japan
• Patent Monopoly Act of 1885 established the first patent system
• Post-World War II reforms aligned Japanese IP laws with international standards
• 1990s saw significant updates to strengthen IP protection and enforcement

Copyright law

• Copyright law in Japan protects original works of authorship, balancing creators' rights with public access
• Governed by the Copyright Act of 1970, with subsequent amendments to address technological advancements

Scope of protection

• Covers literary, musical, artistic, and audiovisual works
• Extends to computer programs and databases
• Protects both economic rights (reproduction, distribution) and moral rights (attribution, integrity)
• Does not require registration for protection, as it is automatically granted upon creation

Duration of copyright

• General rule: life of the author plus 70 years after death
• Anonymous or pseudonymous works: 70 years from publication
• Cinematographic works: 70 years from publication or creation
• Copyright term extension from 50 to 70 years implemented in 2018 to align with international standards

Fair use exceptions

• Quotations for news reporting, criticism, or research
• Private use and reproduction for personal, family, or limited circle
• Educational use in schools and other educational institutions
• Library reproductions for preservation and research purposes
• Temporary reproductions for technological processes (caching)

Patent law

• Patent law in Japan encourages innovation by granting inventors exclusive rights to their inventions
• Administered by the Japan Patent Office (JPO) under the Patent Act of 1959

Patent application process

• File application with JPO, including specification, claims, and drawings
• Examination request must be made within 3 years of filing
• Substantive examination by patent examiner
• Publication of application after 18 months from filing date
• Opportunity for third-party observations and oppositions
• Grant of patent if all requirements are met

Requirements for patentability

• Novelty: invention must be new and not previously disclosed
• Inventive step: non-obvious to a person skilled in the art
• Industrial applicability: invention can be used in industry
• Enablement: specification must fully disclose how to make and use the invention
• Unity of invention: application must relate to a single inventive concept

Patent infringement

• Direct infringement: unauthorized making, using, selling, or importing of patented invention
• Indirect infringement: supplying components of patented invention
• Doctrine of equivalents applies in determining infringement
• Defenses include prior use rights and experimental use exception
• Remedies include injunctions, damages, and destruction of infringing goods

Trademark law

• Trademark law in Japan protects distinctive signs used to identify goods or services in commerce
• Governed by the Trademark Act of 1959, with revisions to accommodate modern business practices

Trademark registration

• Application filed with JPO, including mark representation and list of goods/services
• Examination for absolute and relative grounds of refusal
• Publication for opposition if preliminarily accepted
• Registration granted if no successful opposition
• Renewal required every 10 years to maintain protection

Protection of well-known marks

• Special protection afforded to marks with high recognition in Japan
• Can prevent registration of similar marks even in unrelated goods/services
• Criteria include consumer recognition, duration and extent of use, and advertising efforts
• Famous marks may be protected against dilution

Trademark vs trade name

• Trademarks identify specific goods or services
• Trade names identify businesses or companies
• Trade names protected under Commercial Code and Unfair Competition Prevention Act
• Potential conflicts between trademarks and trade names resolved based on priority and scope of use

Trade secret protection

• Trade secrets in Japan safeguard valuable confidential business information
• Protected under the Unfair Competition Prevention Act rather than a standalone law

Legal framework

• Unfair Competition Prevention Act defines trade secrets and prohibited acts
• Three requirements for trade secret protection: secrecy, economic value, and reasonable efforts to maintain secrecy
• Civil and criminal remedies available for trade secret misappropriation
• Recent amendments strengthened protection and increased penalties for violations

Confidentiality agreements

• Non-disclosure agreements (NDAs) commonly used to protect trade secrets
• Can be standalone or incorporated into employment contracts
• Specify scope of confidential information, duration of obligation, and permitted uses
• Enforceable in Japanese courts if reasonable in scope and duration

Enforcement mechanisms

• Civil actions for injunctions and damages against misappropriation
• Criminal penalties for theft, unauthorized disclosure, or use of trade secrets
• Border measures to prevent import/export of goods using misappropriated trade secrets
• Protective orders in litigation to maintain confidentiality of trade secrets during proceedings

Industrial design rights

• Industrial design rights in Japan protect the aesthetic aspects of products
• Administered by the JPO under the Design Act of 1959

Design registration process

• Application filed with JPO, including representations of the design
• Substantive examination for novelty and creativity
• Publication of registered designs
• Opposition period after registration
• Designs kept secret for up to 3 years upon request to prevent copying

Scope of protection

• Covers the shape, patterns, colors, or any combination thereof of an article
• Extends to partial designs and graphical user interfaces (GUIs)
• Protection against identical or similar designs that create confusion
• Does not protect purely functional designs or those contrary to public order

Duration of rights

• Design rights last for 25 years from the date of registration
• No renewal required, protection expires automatically after 25 years
• Maintenance fees must be paid annually starting from the 4th year

Geographical indications

• Geographical indications (GIs) in Japan protect products with qualities linked to their place of origin
• Governed by the Act on Protection of the Names of Specific Agricultural, Forestry and Fishery Products and Foodstuffs

Protection of regional products

• Safeguards products with specific qualities, reputation, or characteristics attributable to their geographical origin
• Covers agricultural, forestry, fishery products, and foodstuffs
• Prevents misuse of GI names on products not meeting specifications
• Examples include Kobe beef, Yubari melon, and Nishijin textile

Registration requirements

• Application submitted to Ministry of Agriculture, Forestry and Fisheries
• Detailed product specification and defined geographical area required
• Link between product characteristics and geographical environment must be demonstrated
• Collective management system for quality control and traceability

International agreements

• Japan-EU Economic Partnership Agreement includes mutual recognition of GIs
• Bilateral agreements with other countries for GI protection (Vietnam, Thailand)
• Member of the Lisbon Agreement for the Protection of Appellations of Origin
• Efforts to expand GI protection through free trade agreements

International treaties

• Japan actively participates in international IP agreements to harmonize global IP protection
• Membership in key treaties influences domestic IP laws and practices

TRIPS agreement

• Japan is a signatory to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
• Sets minimum standards for IP protection among WTO members
• Requires national treatment and most-favored-nation treatment for IP rights
• Japan has implemented TRIPS provisions into domestic law

WIPO conventions

• Member of World Intellectual Property Organization (WIPO) since 1975
• Party to major WIPO-administered treaties:
  • Paris Convention for the Protection of Industrial Property
  • Berne Convention for the Protection of Literary and Artistic Works
  • Patent Cooperation Treaty (PCT) for international patent applications
  • Madrid Protocol for international trademark registration

Bilateral agreements

• Economic Partnership Agreements (EPAs) with various countries include IP provisions
• Japan-US agreements on patent prosecution and trademark examination
• Cooperation with European Patent Office on patent classification and search
• Bilateral patent prosecution highway (PPH) agreements to expedite patent examination

Enforcement of IP rights

• Japan has strengthened IP enforcement mechanisms to combat infringement and counterfeiting
• Combination of civil, criminal, and administrative measures available to rights holders

Civil remedies

• Injunctions to stop infringing activities
• Damages calculated based on lost profits or reasonable royalties
• Destruction of infringing goods and removal of infringing facilities
• Provisional seizure and injunction available as preliminary measures
• Publication of judgment to restore reputation

Criminal penalties

• Criminal sanctions for willful trademark and copyright infringement
• Fines up to 10 million yen for individuals, 300 million yen for corporations
• Imprisonment up to 10 years for severe cases
• Ex officio action by police and prosecutors for certain IP crimes
• Increased penalties for organized and habitual infringement

Border control measures

• Customs can suspend import/export of goods infringing patents, trademarks, copyrights, and other IP rights
• Rights holders can request customs to monitor and detain suspected infringing goods
• Simplified destruction procedure for counterfeit goods
• Cooperation between customs and rights holders in identifying infringing products

Digital age challenges

• Rapid technological advancements pose new challenges to Japan's IP system
• Legislation and policies evolve to address emerging issues in the digital realm

Online piracy

• Amendments to Copyright Act to address unauthorized streaming and downloading
• Introduction of site-blocking measures for egregious copyright-infringing websites
• Enhanced penalties for operators of piracy sites and leech sites
• Promotion of legitimate content distribution platforms

Software patents

• Ongoing debate on patentability of software-related inventions
• JPO guidelines allow patents for software with technical character
• Examination focuses on inventive step and practical application
• Challenges in defining boundaries between patentable and non-patentable software

AI-generated works

• Legal uncertainty surrounding copyright protection for AI-created works
• Current copyright law requires human authorship for protection
• Discussions on potential new rights or sui generis protection for AI creations
• Ethical and legal considerations in attributing ownership of AI-generated inventions

IP in specific industries

• Different industries face unique IP challenges and regulatory environments in Japan
• Tailored approaches to IP protection and enforcement across sectors

Pharmaceuticals and generics

• Patent term extension available for up to 5 years to compensate for regulatory delays
• Data exclusivity periods for new drugs to protect clinical trial data
• Patent linkage system connects drug approval with patent status
• Promotion of generic drugs while balancing innovator companies' interests

Technology and software

• Strong patent protection for hardware innovations
• Copyright protection for software code and user interfaces
• Ongoing debates on patent eligibility for business methods and AI algorithms
• Open source licensing gaining popularity in software development

Entertainment and media

• Robust copyright protection for music, films, and anime
• Collective management organizations handle licensing for music and literary works
• Challenges in addressing online piracy and unauthorized distribution
• Growing importance of licensing and merchandising rights in the anime industry

IP litigation in Japan

• Japan has specialized courts and procedures for handling IP disputes
• Recent reforms aim to improve efficiency and expertise in IP litigation

Court system for IP cases

• Intellectual Property High Court established in 2005 as a special branch of Tokyo High Court
• Exclusive jurisdiction for patent, utility model, circuit layout, and plant variety cases
• Tokyo and Osaka District Courts have specialized IP divisions
• Technical advisors assist judges in understanding complex technical issues

Alternative dispute resolution

• Mediation and arbitration available through Japan Intellectual Property Arbitration Center
• JPO offers mediation for standard essential patent (SEP) licensing disputes
• Growing use of international arbitration for cross-border IP disputes
• Court-annexed mediation available in some IP cases

Recent landmark cases

• Apple v. Samsung (2014): FRAND licensing obligations in patent infringement cases
• Intellectual Property High Court decision on patent eligibility of AI-related inventions (2018)
• Supreme Court ruling on copyright protection for furniture designs (2019)
• Cases addressing protection of trade dress and 3D trademarks

Future of IP law

• Japan continues to adapt its IP system to address technological advancements and global trends
• Focus on balancing innovation promotion with fair competition and public interest

Emerging technologies

• Blockchain and distributed ledger technologies pose challenges for IP protection and enforcement
• Discussions on legal framework for protecting and regulating AI-generated content
• Potential new forms of IP rights for data and IoT-related innovations
• Exploration of IP issues in virtual and augmented reality environments

International harmonization efforts

• Active participation in global patent harmonization initiatives (IP5)
• Continued expansion of patent prosecution highway (PPH) agreements
• Efforts to streamline international trademark and design registration processes
• Collaboration on combating cross-border IP infringement and counterfeiting

Proposed legal reforms

• Discussions on introducing utility model protection for AI-related inventions
• Potential revisions to employee invention system to balance inventor and employer rights
• Consideration of new mechanisms for protecting and sharing big data
• Ongoing review of copyright exceptions and limitations in the digital age