Apple v Samsung in Japan: an update -- and the Japanese version of an amicus brief

Have you ever wanted to influence a global dispute between intellectual property super-powers, and perhaps even resolve it, using nothing other than your knowledge and understanding of IP law?  This could be your chance, as Katfriend Kaori Minami (Powell Gilbert LLP) explains:

Apple v Samsung in Japan: an update -- and the Japanese version of an amicus brief

It has been reported that, on 23 January, the Japanese Intellectual Property High Court (which, despite its name, is an appeal court) has invited the submission of amicus briefs on the FRAND issue which is at the heart of the Apple v Samsung appeal proceedings, to address the question: 

"Should there be any restriction on the right to seek an injunction and damages based on a standard essential patent (SEP) in respect of which a FRAND declaration is made?"

Black Cat at Night,
by Koho Shoda

Anyone who is interested is welcome to provide their opinions to representatives of either party, who will submit them to the court as part of their documentary evidence for the appeal proceedings.  Details of how to make submissions are available on the website of the parties' respective representatives; Ohno & Partners are acting for Samsung (see announcement here, in Japanese) and Ito & Mitomi/Morrison & Foerster are acting for Apple (see announcement, here, in Japanese and English).  Do be aware that you will need to provide a Japanese translation if you are thinking of submitting your opinions in another language.  The deadline for submissions is 24 March 2014.

This is the first time the Japanese court has taken the route of amicus briefs.  It is not a procedure set out in the Code of Civil Procedure or the Patent Act.  This is probably the reason why the third party opinions are to be submitted through the representatives and possibly why the announcement is not mentioned on the court’s official website.

The Japanese IP High Court is led by the Chief Judge Mr Toshiaki Iimura, who is speaking at an upcoming IBIL seminar ‘How Japanese IP litigation really works’ on 19 February.  The seminar, which will give an overview of Japanese IP litigation, may cover this amicus brief. 

This Kat confesses that his Japanese is not quite as colloquial as he'd like it to be, and that he has a strong personal bias in favour of restricting injunctive relief where (i) a SEP is held out as being available for FRAND licensing and (ii) the grant of such relief would inconvenience members of the public who had already purchased goods or signed up for services on the basis that they would be able to use them.  Damages are quite another matter, he adds: the user of the patent would expect to pay for the privilege whether he was a licensee or not, so the question there is not so much a question of restriction as one of quantum.

Don't be so narrowly-focused, says Merpel: there's far more at stake here than a question of what to about patent infringement. This is just one skirmish in a battle for global dominance. What's needed here, and increasingly in other disputes, is an effective mechanism for dealing with global IP-based conflicts. But, in the absence of consensual forms of alternative dispute resolution like mediation and arbitration, there is none.