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Resorting to a Third-party Organization Other than the Court

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There are ways other than court procedures to settle a legal dispute. Even in a dispute which may not be resolved through direct negotiations or discussions between the parties, third-party intermediation may facilitate a settlement.

Mediation System

Under the mediation system, a third-party mediator acts as an intermediary and first listens to the assertions of the parties to the dispute. Then, the mediator presents a proposal for reaching agreement by the parties. Although the mediator acts as a go-between to facilitate settlement between the parties, if the parties themselves fail to reach agreement, then agreement is not reached, settlement is not imposed, and the mediation is terminated. It is convenient as a means of dispute resolution which requires secrecy, since the principle of a trial disclosure is not applicable to the system. There are different types of mediations, such as those conducted by private or public institutions, as well as by the court. When settlement is reached in the mediation conducted by the court, the mediation record is as legally binding as a court's decision.

Arbitration System

Another alternative is the arbitration system by an arbitration organization in which a third-party arbitrator acting as an intermediary listens to the parties' assertions and gives an arbitral award. The arbitration system is different from the mediation system conducted by an organization other than the court in that once the parties agree to utilize the arbitration proceeding, the arbitral award by the arbitrator is as legally binding as a court's decision. This system is a relatively easy procedure compared to court procedures and may facilitate speedy settlement. It is also convenient in a case in which dispute settlement procedures require secrecy, since the principle of a trial disclosure is not applicable to the arbitration system.

Note on the Arbitration System

Under the arbitration system, the arbitral award of the arbitrator has the same effect as that of a court decision. However, unlike court procedures, the arbitration system may be available only upon mutual agreement of the parties concerned. Please keep in mind that the arbitration system may not be resorted to without the voluntary consent of the other party.

In an arbitration case, in order to be awarded the arbitral award to your advantage, it is also necessary to be in a strong position to prepare assertions and evidence, including a patent attorney's written testimony and a Patent Office's advisory opinion on the technical scope of the patented invention or the scope of other industrial property rights, to be used to support your argument for the purpose of prevailing over the assertions and evidence of the other party.

The Japan Intellectual Property Arbitration Center

One of the typical arbitration organizations for mediation and arbitration of disputes over intellectual property rights is the Japan Intellectual Property Arbitration Center. The petition fee for mediation or arbitration is 50,000 yen, and the daily fee per hearing date is 30,000 yen (to be divided equally between the parties). In addition, a certain settlement fee is charged upon the final mediation or arbitration settlement, depending on the amount in the dispute.

There are also the following arbitration organizations which do not specialize in disputes over intellectual property rights. The fees and procedures differ depending on the organization.

Hantei System (Advisory Opinion)

One of the methods for soliciting objective opinions of a third party other than the court is the advisory opinion system of the Patent Office. The advisory opinion system is such that the Japan Patent Office delivers an official opinion from a fair and impartial point of view as to whether a certain case falls under the technical scope of a patented invention or utility model, the scope of a registered design or of the effect of a trademark right, though its results do not bind the parties or a third party.

Division in Charge

Office for Intellectual Property Right Infringement and International Trade, Manufacturing Industries Bureau
Tel: +81-3-3501-1701
Fax: +81-3-3501-6588

Ministry of Economy, Trade and Industry
1-3-1 Kasumigaseki, Chiyoda-ku, Tokyo 100-8901, Japan Tel: +81-(0)3-3501-1511
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