Iimura, who was visiting the UK, spoke about various
aspects of the Japanese system, including the court framework,
appeal processes, streamlining infringement and invalidity
hearings, remedies, amicus briefs, preliminary injunctions and
costs. As he said himself, it was a lot to cover in his
The IP High Court was established in 2005 in recognition,
Iimura said, of the need for "a high quality judicial system"
and the speedy resolution of IP disputes. He has been chief
judge since 2012 and was interviewed in Managing IP in August of
In 2012, there were 567 IP cases before the district courts
in Japan, 155 of them to do with patents. The IP High Court had
146 appeal cases from the district courts (58 of them
patent-related) and 457 cases arising from JPO appeals/trial
decisions. These and other facts are included in his detailed
slides, available on the UCL website.
One of the points Iimura emphasised was what he called the
"active involvement of judges" in promoting settlements, often
at the preliminary injunction stage (where the product has a
short lifespan) or based on a tentative view by the judge that
infringement is either likely or not. As he said, a negative
finding can incentivise either the plaintiff or defendant to
seek to settle the dispute.
Of course, he’s not the first judge to sing the
praises of settlements and other alternatives to litigation. As
my colleague Emma Barraclough wrote here last week, UK judge Mr Justice
Arnold spoke in favour of mediation at a seminar last week;
Emma has also interviewed the chair of OHIM’s Boards of
Appeal about his mediation initiatives). Last year, US
District Court Judge Lucy Koh famously urged lawyers for Apple and Samsung to
settle their dispute and avoid further litigation.
Perhaps it’s ironic that judges, whose
livelihood depends on court disputes, should encourage parties
to get out of court. But of course all over the world there is
a recognition that much litigation is expensive, time- and
resource-consuming and ultimately destroys corporate value.
Judges who promote the amicable resolution of disputes are
acting in their own courts’ best interests and
those of society at large.
But during the reception following Iimura’s
presentation last night, I heard some dissenting voices.
It’s not for judges to tell parties how to behave,
particularly at the early stage of proceedings and given that
many disputes involve multiple cases in different
jurisdictions, said one lawyer. Another added that judges
should focus on making the litigation process more efficient
and transparent, and leave lawyers to worry about the dynamics
of a dispute. Indeed, Iimura himself pointed out that one of
the downsides of mediation is that can drag on as there are no
What do readers think? Is it for judges to actively
encourage parties to settle, or should they stick to the issues
in the courtroom and leave wider matters to the lawyers and
parties involved in the case?