Legal Innovations in Asia
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Legal Innovations in Asia

Judicial Lawmaking and the Influence of Comparative Law

Edited by John O. Haley and Toshiko Takenaka

Legal Innovations in Asia explores how law in Asia has developed over time as a result of judicial interpretation and innovations drawn from the legal systems of foreign countries. Expert scholars from around the world offer a history of law in the region while also providing a wider context for present-day Asian law. The contributors share insightful perspectives on comparative law, the role of courts, legal transplants, intellectual property, Islamic law and other issues as they relate to the practice and study of law in Japan, China, Taiwan, Korea and Southeast Asia.
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Chapter 5.1: A change of leadership in patent policy and law development? The active role played by Japanese courts in Japan’s patent term extension reform

Toshiko Takenaka


In both developed and developing countries, the high cost of healthcare is a serious concern for both policy makers and the public. Because prescription drug costs account for a significant portion of healthcare expenditure, replacing brand-name drugs with their generic equivalents is an effective way to reduce healthcare costs. However, generic drug manufacturers are unable to market the bio-equivalent of a brand-name drug until the patents on the brand-name drug have expired. Marketing of drugs requires approval from a drug regulatory authority, which requires submission of certain data. Generic drug manufacturers cannot perform the clinical trials necessary to develop this data, which requires making and using the brand-name drug to establish bio-equivalency between the brand name and generic drug, until the patent on the brand-name drug expires. To expedite the entry of generic drugs into the market, the patent systems in the United States, Japan and member states of the European Union provide immunity for acts related to the development of data necessary for regulatory agency approval. Brand-name drug manufacturers continue to attempt to extend their market exclusivity in spite of immunity provisions. Brand-name drug manufacturers sue generic drug manufacturers that are performing clinical trials, claiming the generic drug manufacturers’ making and using patented drugs for alleged clinical trials are outside the scope of immunity. They also obtain additional patents on the technologies associated with soon-to-expire patents.

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