Patent Law and Theory
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Patent Law and Theory

A Handbook of Contemporary Research

Edited by Toshiko Takenaka

This major Handbook provides a comprehensive research source for patent protection in three major jurisdictions: the United States, Europe and Japan. Leading patent scholars and practitioners join together to give an innovative comparative analysis both of fundamental issues such as patentability, examination procedure and the scope of patent protection, and current issues such as patent protection for industry standards, computer software and business methods. Keeping in mind the important goal of world harmonization, the contributing authors challenge current systems and propose necessary changes for promoting innovation.
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Chapter 21: Adequate Compensation for Patent Infringement Damages: A Comparative Study of Damage Measurements in Japan and the United States

Toshiko Takenaka


Toshiko Takenaka 1 Introduction To recover from its deep recession, the Japanese government set a national goal to become ‘a nation based on intellectual property’ and began an overhaul of its intellectual property system.1 Japan’s Ministry of Economy and International Trade (METI) and its agency, the Japan Patent Office (JPO) were convinced that the revival of the US economy resulted from new business opportunities arising from technological innovations, which were promoted by the increased incentives brought about by the Reagan and Bush presidential administrations’ adoption of a ‘pro-patent policy’.2 To follow the US example, all aspects of the Japanese IP system were reviewed in light of that of their US counterparts. A huge difference in patent infringement damage awards by US and Japanese courts revealed by the review led to a revision of Japanese patent law, which involved codifying US case law in order to reduce the patentee’s burden of proof to establish causation.3 Cases decided during the discussion and enactment of the revision indicated a significant impact of the revision on Japanese patent infringement damages.4 These cases awarded much bigger damages than those that had 1 Toshiko Takenaka and Ichiro Nakayama, ‘Will Intellectual Property Policy Save Japan from Recession? Japan’s Basic Intellectual Property Law and its Implementation through the Strategic Program’, (2004) 35 IIC (No. 8) 877. 2 For a general discussion of US Pro-Patent Policy, see Yoshitake Kihara, ‘US Pro-Patent Policy: A Review of the Last 20 Years’, (2000) CASRIP Newsletter, 2000 Winter, Vol. 7, Issue 1 available...

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