Does a Cultural Barrier to Intellectual Property Trade Exist? The Japanese Example

What is the so-called cultural barrier to intellectual property trade? No definition for this phrase readily came to me when I began exploring the topic. Japanese intellectual property scholars and professionals strongly suspect that their U.S. counterparts, who find institutional or economic explanations for discrepancies between European and American business customs, nevertheless tend to attribute the differences between Japanese and American business practices to cultural differences. Three popular arguments offered to substantiate this cultural barrier to intellectual property trade theory are: (1) the application of the concepts of competition and monopoly to intangibles such as technology and ideas is foreign to Asian culture; (2) Japanese imitation of basic technological innovation is rooted in Japanese culture; and (3) the Japanese only utilize the basic technology developed by U.S. inventors and do not add any new innovations themselves. This paper proposes that the first argument does not apply to Japan. An analysis of historical developments reveals that technology and idea monopoly systems existed long before Japan adopted a modem intellectual property system similar to the European and American models. With regard to the second and third arguments, the Japanese Patent Office\u27s survey on patent applications for semiconductor technology reveals that U.S. and European inventors produced early breakthrough inventions. This suggests that Japanese technological development policy tends to focus on the manufacture and application of technologies rather than on the creation of basic innovative technologies. However, the difficulties European countries faced in achieving technological breakthroughs implies that a cultural barrier cannot explain the difference. Finally, Japan\u27s failure to excel at innovation does not create a barrier to intellectual property trade. License negotiations in the form of royalty payments for U.S. and European technologies, and/or grant-backs of improvements, tend to correct any trade imbalance caused by the Japanese focus on application and manufacture of technologies. In short, this paper argues that, upon close examination, the assumptions underpinning the cultural barrier to intellectual property trade theory demonstrate that the differences in Japanese and Western intellectual property practices are not grounded in culture. Furthermore, this paper argues that cultural differences do not create a barrier to intellectual property trade.

The Best Patent Practice or Mere Compromise? A Review of the Current Draft of the Substantive Patent Law Treaty and a Proposal for a First-to-Invent Exception for Domestic Applicants

Part I of this paper I review the past efforts of patent harmonization. In Part II, I review the current draft of the Substantive Patent Law Treaty (SPLT) and compare its major articles with Title 35 of the United States Code, the European Patent Convention (EPC), and Japanese Patent Law (JPL). In Part III, I analyze the changes expected by the integration of the SPLT into U.S. patent practice and examine if such changes would result in the best patent practice. I propose that the best practice takes into account underlying patent policies in such instances in which the changes merely reflect a compromise with the European/Japanese practice. In particular, in Part III, I also argue that such changes brought about by the SPLT are marginal because the current U.S. system is, in reality, a first-to-file system with limited exceptions for first-to-invent priority. Implementation of the SPLT in the United States only requires removing that exception and introducing a simple, userfriendly system that is particularly beneficial to applicants with limited resources. However, all the legitimate benefits of and compelling policy reasons for a first-to-file system still may not convince die-hard first-to-invent advocates. Therefore, in Part IV, I propose maintaining an exception for use of the existing system and creation of a quasi-second tier system for patent protection. Such a system will give these first-to-invent advocates a chance to experience the acclaimed benefits of the first-to-file system while keeping first-to-invent options open until they are ready to completely convert to the first-to-file regime

International and Comparative Law Perspectives on Internet Patents

This commentary will focus on the participants\u27 proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates

Commentary: International and Comparative Law Perspectives on Internet Patents

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing their proposal with the patent systems of America\u27s important trade partners: the EU and Japan. This commentary will focus on the participants\u27 proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates

Patent Infringement Damages in Japan and the United States: Will Increased Patent Infringement Damage Awards Revive the Japanese Economy?

This Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology

The Substantial Identity Rule under the Japanese Novelty Standard

This article compares the novelty standard under Japanese patent law with the novelty standard under American patent law. This article first explains the structure of the novelty and inventive step provisions under Japanese patent law and examines the interpretation and basic legal theories of these provisions. The inventive step standard developed out of the novelty standard. Thus, to understand the inventive step standard, it is necessary to understand the novelty standard. Next, this article discusses the unique features of the Japanese novelty standard. The strict novelty requirements of the patent laws of the United States and European countries are contrasted with the relaxed substantial identity rule developed by Japanese courts, which will be discussed in detail. This article then evaluates the differences between Japanese and other novelty standards, and examines the reasons for those differences. The final part of this article analyzes problems caused by the substantial identity rule and questions whether this rule is in fact necessary. The article concludes that the substantial identity rule should be abolished in Japanese patent law, and that the novelty and inventive step requirements should be clearly differentiated to harmonize the Japanese patentability standard with American and European standards, as well as to provide an objective patentability standard for the Japanese patent system

International and Comparative Law Perspectives on Internet Patents

This commentary will focus on the participants\u27 proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates

Unravelling Inventorship

Inventorship, who made an invention, is one of the most important concepts under the U.S. patent system. Incorrect inventorship determinations result in patent invalidity not only because U.S. Constitution requires granting patents to true inventors, but also first-inventorto- file novelty inherited many aspects of first-to-invent novelty which depended on inventorship whether to include prior inventions as prior art. Correcting inventorship may result in sharing patent exclusivity with competitors, which forfeits profits necessary to recover expensive development costs. However, the standard to determine inventorship has been called muddy by judges and commentators because neither the Patent Act nor case law provide any clear guidance. The standard has become overinclusive to overcome obstacles to obtaining patents when inventors work jointly on the same research project because the first-to-invent system included prior inventions as prior art even if they were kept secret (secret prior art), unless the same inventorship exception enabled inventors to remove the prior art. To address the obstacles, Congress has introduced multiple exceptions, which have resulted in an unnecessarily complex legal framework. Under the current standard, any researchers who are willing to exchange research results and ideas are subjected to the risk of a joint inventorship dispute. This article proposes a reform to remove the obstacles which America Invents Act (AIA) was unable to address. It proposes the adoption of a simplified legal framework which would remove secret prior art and prior art during the grace period from obviousness determinations, regardless of inventorship. By eliminating any necessity for the overinclusive inventorship standard, this article proposes an improved inventorship standard to include only inventors who collectively made inventive contributions by revitalizing the collaboration requirement and inventive nature requirement for contributions

Patent Infringement Damages in Japan and the United States: Will Increased Patent Infringement Damage Awards Revive the Japanese Economy?

This Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United States and Japanese case law. Part II of this Article will focus on a recent Japanese case, that indicates a new direction on the calculation of damages and will examine reasons for the change. Finally, Part III of this paper will examine to what extent the new legislation will change the scope of patent infringement damages and will discuss whether the increase in patent infringement damages will contribute to the recovery of Japanese economy

The Patent and Non-Patent Incentives for Research and Development of New Uses of Known Pharmaceuticals in Japan

Japan is one of most innovative drug manufacturer-friendly countries because it revised its patent and drug regulation systems for providing patent and non-patent incentives for new use and treatment R&D based on its pro-patent and pro-medical science policies. This article provides an overview of the pharmaceutical industry and examines patent and non-patent incentives for drug R&D in focusing on incentives for developing new uses of and treatments for known drugs from a comparative law perspective. After discussing the difficulties in establishing infringement and in obtaining injunctions against generic drug manufacturers who infringe new use product patents, the article reviews measure Japanese scholars have proposed to help secure incentives for new use and treatment R&D and proposes an alternative solution