A Shifting Barrier? Difficulties Obtaining Patent Infringement Damages in Japan

American economic interests previously have criticized the Japanese patent system as a trade barrier. Recent agreements between the United States and Japan should help reduce the difficulties Americans have had obtaining patents in Japan. However, Americans who acquire Japanese patents are likely to be disappointed and discouraged by the formal protection afforded their new property. The patent enforcement system in Japan provides limited judicial remedies. Equitable relief is difficult to enforce. The full value of monetary damages is extremely difficult to prove, and the possibility for equitable recovery of damages in excess of those proved does not exist. The cost of undertaking litigation and the unavailability of attorneys\u27 fees provide further disincentives to seeking judicial enforcement of patent rights. Thus, although Americans may find it easier to obtain a patent in Japan, they are likely to become frustrated with the enforcement system, leading to increased complaints about the Japanese patent system from U.S. commercial interests