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Research Activity Summary of FY2003

 
1. System Reforms in the Industrial Property Field (Trademark System Reforms)

  Amid progress in reforms of industrial property systems, Strategic Program for the Creation, Protection and Exploitation of Intellectual Property has recommended that concrete measures will be considered to develop an environment for providing products and services of greater value, along with consideration of a desirable trademark protection system, and a conclusion will be drawn by FY 2005.

   Recently, there have also been active movements regarding trademark systems on a global level, such as movements regarding the European Community Trade Mark system. Now is the time for us to review the Japanese trademark system while taking into account the possibility of drastic system reforms.

   This report presents and studies major problems for reviewing the Japanese trademark system.

   More specifically, this report addresses the potential problems facing Japan when introducing the examination system, which has been adopted in European trademark systems, where examination of earlier registered trademarks is conducted upon the filing of an opposition (opposition examination system). The handling of the concepts of "similarity" and "likelihood of confusion" in Japan, Europe, and the United States, and a desirable way of assessing such concepts in Japan are also addressed.

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2. Desirable Form of Design System Suitable for Strategic Utilization of Designs

   In the Intellectual Property Policy Outline, it is recommended that specific measures be considered to develop an environment for providing products and services of greater value by using attractive designs. It is also decided in the Strategic Program for the Creation, Protection and Exploitation of Intellectual Property that "the Government of Japan(GOJ) will extensively study new subject matters, such as designs of operational screen pages (icons, etc.) used on computer networks, and will draw a conclusion during FY 2003." Following these trends, we should immediately review the existing design system, considering whether it is suitable for strategic utilization of designs and appropriate to the actual condition of designing activities.

   Under such circumstances, a research study committee was formed to discuss a wide range of issues: (1) protection of screen page designs (whether to expand the statutory scope of designs to protect screen page designs, the contents and methods of such protection, the direction of institutional arrangements, etc.); (2) expansion of the scope of the effect of a design right (whether the current scope is appropriate, to what extent the effect of a design right should be acknowledged, etc.); (3) other issues

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3. Economic Analyses of Statistical Data Relating to Patents

  Intellectual property rights (IPRs) are having an increasing impact on industry in recent years due to economic globalization. Therefore, in planning out appropriate intellectual property (IP) policies in the future, it is necessary to compile basic data on IPRs and study their impact of industry as well as to sufficiently examine their economic/managerial effects on the industrial world.

   In FY 2002, the Japan Patent Office (JPO) started the Survey of Intellectual Property-Related Activities that would serve as the basis for planning IP policies, and it is currently compiling the basic data for various analyses.

   This report makes economic analyses of the relevance of IPRs to the macroeconomy and business management as well as their impact on industry by utilizing statistical data on patents, including the results of the JPO's Survey of Intellectual Property-Related Activities, for the purpose of contributing to creating guidelines for IP policies. Also the report studies concordances for linking the statistical data on patents and economic data. Furthermore, it examines the questions in the Survey of Intellectual Property-Related Activities based on the survey results, and reviews the questions in order to reduce the respondents' burden in answering the questionnaire.

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4. The Examination and Implementation of Use Inventions in Major Countries

   Major patent offices have not conformed to each other in terms of the interpretation and implementation of special claims relating to a use invention, as represented by product-by-use claims and use claims. Especially in Japan, a variety of claim forms are admitted in relation to use inventions of a publicly known chemical compound or a composition, and there are thus many problems that are peculiar to each industrial field. With that, claim forms, requirements for patentability, judicial precedents, and the scope of the right for use inventions were organized, and problems with the examination and implementation of use inventions were extracted with respect to each industrial field with high needs for use inventions, through comparison with the results of overseas research in the United States and Europe. Specifically, there are the problem of special use claims in the pharmaceutical field, the problem of the description requirements for pharmacological mechanisms and pharmacological data, the particularity of examination in the cosmetic field, the problem relating to descriptions limiting a product by use in the chemical fields, and the problems of claims defining a product by property and overlapping rights in the alloy field. Solutions to these problems were considered. Toward international harmonization, problems were raised and proposals were given in relation to desirable ways to examine and implement use inventions in Japan.

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5. Strategic Drafting of Applications for U.S. and European Patents by Japanese Companies from an Enforcement Perspective (2)

   In this report, a method for converting a U.S. application into a European application was considered as one of the measures for Japanese companies to obtain patents whose rights are usable in Europe and the United States. While measures to strengthen U.S. applications were proposed in a study during the last fiscal year, a study this year proposes a method for filing a European application on the basis of an improved U.S. application.

   In this study, 30 European applications filed by Japanese companies were analyzed, and problems with descriptions in claims and specifications were indicated. Problems peculiar to European patent applications were extracted through comparison with points to be noted upon filing U.S. patent applications, and solutions to the problems were considered. The principle of one independent claim per category and other problems were closely examined.

   In addition, matters to be noted upon filing U.S. applications were sent to barristers in Germany and the United Kingdom to confirm items that should be added as points to be noted upon filing European applications from the viewpoint of enforcement.

   On the basis of the above result, checklists for the specification for filing an application in Japan, the United States, and Europe, were prepared. Furthermore, measures for effectively utilizing overseas representatives to implement these checklists were developed.

   Against the background of the above achievements, this study proposed a means of preparing a patent specification that enables effective claim of the right at the Trilateral Patent Offices-the Japan Patent Office (JPO), the United States Patent and Trademark Office (USPTO), and the European Patent Office (EPO).

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6. Modalities of Future Utility Model System

   For the purpose of actively protecting and encouraging small inventions based on industrial policy, the utility model system was established as a system complementary to the patent system.

   However, through several system reforms such as the introduction of the revised multiple claims system and granting rights on formality examination only, the number of utility model applications has been decreasing whereas the number of patent applications has been increasing rapidly in recent years.

   With prompt protection of intellectual property rights being desired and usage of intellectual property systems being diversified, it has been pointed out as necessary to discuss modalities of the utility model system which will satisfy users' needs.

   In light of this situation, the study was conducted as a basic survey for contributing the discussion, focusing on issues such as the scope of subject matter to be protected, duration, amendment/correction, and the relationship with the patent system, while targeting utility model systems in Germany, France, the EU, the Republic of Korea, and China. A questionnaire survey was also conducted targeting Japanese users, with the aim of understanding their use of the utility model system, awareness of problems, and opinions on the future system designing.

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7.   Problems Surrounding Intellectual Property Rights under Private International Law

   Despite the prospected increase in intellectual property (IP) disputes beyond national borders, there are no established global rules on international jurisdiction, applicable law, and recognition and enforcement of foreign judgments. Therefore, it has been pointed out that transactions related to intellectual property rights (IPRs) lack foreseeability. This is also mentioned as a problem to be addressed in the Intellectual Property Policy Outline of Japan. In Japan, the Supreme Court indicated a certain decision in the so-called card reader case as to whether a Japanese court may carry out proceedings on foreign patent infringement and the law to be applied. However, a general rule has yet to be established. In the international arena, discussions are under progress to formulate international rules on civil litigation including IP-related lawsuits in the negotiation process for the Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters at the Hague Conference on Private International Law.

   This study report examines the latest court judgments and academic theories on international jurisdiction and applicable law in Japan, the United States, and major European countries, as well as reviews how Japanese organizations have responded to the draft Hague Convention. In addition, it studies the problem of applicable law for foreign patents on employees' inventions and the trend of rule-making in Asian countries, which are areas that have not been sufficiently studied in the past from a private international law perspective.

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8.  The Appropriate Protection of Intellectual Property License Agreements

   Although the economic trend in Japan started to show signs of improvement, listed companies, including small and medium-sized companies continue to file for bankruptcy. In such an environment, intellectual property licensing has come to play an increasingly important role in companies.

   Therefore, this research examined specific proposed measures for legal protection of licensees in the event that a licensee in ongoing business faces the bankruptcy of a relevant licensor, or relevant intellectual property is assigned to a third party, after conclusion of an intellectual property license agreement. This report summarizes the results of multidirectional discussions in deference to the current legal system of Japan and with an understanding of the actual conditions and requests of the industry.

   Individual proposed measures are expected to be examined to form the basis for future policymaking.

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9. Practical Issues Arising from the Introduction of the Trust System for Intellectual Property

   As one of the methods for centralized management of intellectual property rights (IPRs) in business groups and Technology Licensing Organizations (TLOs) or one of the schemes for financing secured by intellectual property (IP) or IP securitization, the trust system has attracted attention for its usability. Meanwhile, a clear direction of the revision of the Trust Business Law has been indicated toward enabling IP to be accepted as trust property on business.

   With the establishment of IP trust business having become a real possibility, this research focused on trust and considered practical issues upon the introduction of IP trust business following the research in FY 2002 titled "Legal Issues Concerning the Use of Trusts for Intellectual Property.". More specifically, this research discussed: the acceptability of each IP as trust property; the applicability of requirements for IP trust establishment and setting it up against a third party; duties of the trustee focusing on license contracts and the allocation of revenues; settlement of IP-related trust disputes; taxation and accounting treatments related to IP trust. This research also compiled the Guidelines for IP Trust Operation Manuals including draft model contracts.

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10. Issues Affecting Smooth Use of Intellectual Property: Applicability of the Statutory Exception for "Experiment or Research"

   If the smooth use of an upstream technology is hampered in the case where a patent is granted to an invention covering an upstream technology that has a wide range of uses, has little or no substitute, and is difficult to be designed around, and the owner of such a patent refuses to give license at all or requests overly excessive royalty, it is feared that it may cause a significant negative impact on research and development (R&D) of downstream technologies or other related R&D. In this study, in order to contribute to promotion of smooth use of intellectual property as required by the Strategic Program for the Creation, Protection and Exploitation of Intellectual Property, a government-sponsored program, we examine various possible measures to be taken for enabling smooth use of a patented invention that is difficult to be designed around including "research tool" patents in the life science field. Although Article 69 (1) of the Patent Law stipulates the exemption of "experiment or research" from infringement and it has not been formally defined what acts cannot be exempted as "experiment or research," it seems that, in most cases, this exemption cannot apply to an act that is conducted in the course of trade. Accordingly, as an attempt to contribute to the smooth use of such patented inventions, we have examined the possibility of resorting to compulsory licensing, application of the Antimonopoly Law, formulation of license guidelines, and introduction of patent pools.

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11. Technical Standard-Setting, Patent Pooling, and Competition Policy
Kim Junghoon
Ph.D., Researcher, Center of Social Informatics, Lecturer,
Department Telecommunications Indiana University at Bloomington, USA

   When two or more inputs are essential in goods-production and they have become property rights and are separately possessed by different companies, companies producing goods have to conclude license agreements with the two or more holders of the relevant property rights. However, there is the possibility that goods-production will be suspended due to the occurrence of hefty transaction costs, a refusal to license, etc., which causes the "tragedy of the anticommons." This causes especially serious problems when technical standard-setting and intellectual property rights are combined. It is the patent pool that has been attracting attention as a solution to this tragedy in recent years. Both technical standard-setting and patent pooling in fact cause various potential competition policy issues. This research considers relations among "technical standard-setting, patent pooling, and competition policy," from various angles.

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12.  The Pharmaceutical Industry in The Great White North and Land of the Rising Sun: A Comparison of Regulatory Data Protection in Canada and Japan
Vishva V. Ramlall
B.A., LL.B., J.D., B.C.L.(Oxon)

   Regulatory data protection (RDP) is gaining prominence as a category of intellectual property (IP) rights due to its significant economic implications. RDP is entrenched in key international IP agreements, however, countries have not consistently implemented it. While both Canada and Japan provide for RDP, the effectiveness and the level of protection vary considerably. This research serves a prospective role by analyzing the impact of impending developments resulting from mounting pressures to increase RDP from domestic and foreign stimuli in these two countries.

   The Canadian approach, supported by a high level domestic appellate court, is to restrictively interpret the North American Free Trade Agreement's RDP provisions, which provide more specificity than those of the WTO's Trade-related Aspects of Intellectual Property Rights Agreement. This approach is consistent with the balance which Canadian courts and government continually seek to achieve in health-related areas of IP. This balance has generated a strong generic sector and condemnation from the innovative sector.

   Japan, under the guise of a complex post-marketing approval re-examination period, provides for strong RDP and market exclusivity. The inertia of the Japanese innovative sector, coupled with the commitment at the political level, has resulted in a mandated study of the current RDP provisions with a view to increase protection. The existing balance of power between the Japanese innovative and generic sectors, and prevailing attitudes suggest that the proposed increase is a fait accompli.

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13. A Comparative Appraisal of Patent Invalidation Processes in Japan
Jay P. Kesan
Ph.D., J.D., Professor and Director,
Program on Intellectual Property and Technology Law,
University of Illinois at Urbana-Champaign, U.S.A.

   The experience with a dual track invalidation system in Japan involving both the JPO and the district courts demonstrates that both invalidation schemes are complementary and serve to increase the universe of issued patents that are challenged by third parties. The specific differences between the two invalidation options that are outlined in detail in this work indicate that while a patent may be challenged in both venues in the vast majority of cases, there are sound economic and institutional reasons for maintaining (or creating) a patent system with the ability to raise patent validity challenges in both the Patent Office and in the courts.

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14. Block Me Not: Genes as Essential Facilities?
Shamnad Basheer
B.A. LL.B.(Hons.), B.C.L.(Oxon.)

   Disease gene patents are a serious and sensitive issue. Policy in this area has to be very carefully deliberated upon-as any mistake could have severe consequences for biomedical drug discovery and human health. Literature is replete with concerns that patents over gene sequences would 'block' biomedical drug development. However as Walsh and others warn, before seeking solutions to this blocking impasse, we need to ask ourselves if there is such 'blocking' in the first place.

   My paper seeks to demonstrate that antitrust can offer us a good framework to study the blocking issue. By applying the essential facilities doctrine to individual cases where access to a gene patent has been denied, one can assess the existence and maybe extent of blocking in this industry. This data could then be used to assess as to whether the blocking is of such a widespread nature as would warrant a substantial legal and/or institutional response.

   With the IMS Health case before the ECJ, the essential facilities doctrine has taken centre stage in Europe. A recent report by the JFTC seems to suggest that Japan is serious about invoking this doctrine. However the parameters of this doctrine are far from settled. Antitrust authorities do not enough guidance on issues such as determining appropriate license fees for access, optimal number of licensees etc. In keeping with my focus on blocking and disease gene patents, I have dealt mainly with one aspect of this doctrine-namely the question of "essentiality". Essentiality would in most cases help in a determination of 'blocking' i.e. if the facility is a non-essential one, then there can possibly be no blocking. However the converse need not always be true-i.e. if the facility is an essential one, but is widely licensed, then it is quite possible that there would be no blocking.

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15. Intellectual Property Legal Education in Japan in the New Millennium:Observations and Lessons from the U.S.
Ilhyung Lee
Associate Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution,
University of Missouri-Columbia, J.D., Member, Chartered Institute of Arbitrators

   Professor Ilhyung Lee's research project examines intellectual property legal education in Japan, from the view of a U.S. law school faculty member. The discussion is timely given the Japanese government's recognition of the important role of intellectual property in the national agenda, and the beginnings of the new law school in Japan. Professor Lee's article begins with a brief background of intellectual property in Japan and the teaching of intellectual property law in Japanese higher education on the eve of the new law school. It also offers outsider observations on various aspects of intellectual property education in Japan. This is followed by a brief description of intellectual property curriculum in the U.S. law school, including specific items of discussion by intellectual property faculty stateside that may be of interest to law teachers and administrators in Japan. One question for consideration is to what extent intellectual property law education in Japan and the U.S. reflect the respective societal culture. The article encourages discussion on how faculty in Japan could benefit from the experience of a more developed intellectual property curriculum in the U.S., while developing a system tailored for Japanese objectives.

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16. The Nature and Function of Patentability
Shimanami, Ryo
Long-term Overseas Research Fellow, Institute of Intellectual Property
Graduate School of Law, Kobe University

   This study analyzes the subject matter of patent rights from three perspectives, which are functions, principles, and morality. Chapter I takes a look at the function each requirement plays in demarcating the patentability. It discusses that the patentability is and should be decided not only from the technology perspective, but also from various viewpoints including policy, economy, and morality, by focusing on the concept of a person skilled in the art, which plays a particularly important role in demarcating the patentability. Chapter II takes a look at theoretical grounds for justification of the patent law. It emphasizes the need to consider a perspective of promoting use of invention in addition to the conventional perspective of promoting invention. The chapter reveals that such an approach will result in opening up a new prospect also for the various arguments on patentability such as the dichotomy between inventions and discoveries. Furthermore, Chapter III takes a look at the morality aspect that the patent law has come to face more radically along with the progress of biotechnology in particular. It examines how the subject matter of patent rights can be defined from the public order and morality point of view.

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17. Contemporary Problems on Japanese Patent Law from the Perspective of the European Patent Law Analysis of the Framework on Infringement by Multiple Infringers under the Patent Law -The Case of Indirect Patent Infringement-
Hisao Shiomi
Long-term Overseas Research Fellow, Institute of Intellectual Property
Associate Professor, Faculty of Law, Kagawa University

   The regulations on infringement by multiple infringers in recent years, mainly the provisions on indirect infringement under the intellectual property right (IPR) laws, are inclined to stop the act of tort against information, which can be infringed in various places, before the actual occurrence of direct infringement. Furthermore, there has been the trend of considering acts that had been regarded as indirect infringement to be direct infringement. The expansion of the scopes of the subject matter protected by patent and the acts of working by legislation as seen in the treatment of computer programs in the 2002 amendment of the Japanese Patent Law is a measure to simply consider acts that had been regulated under the provisions on indirect infringement as direct infringement. In addition, this inclination is also observed in the provisions on indirect infringement in experiment/research, infringement of patents on medical methods, joint direct infringement, and prohibition of the transfer of equipment for circumventing technological protection measures.

   At the same time, rules on infringement by multiple infringers are inseparable from competition policy. Indeed, competition policy considerations are made with respect to the issue of exhaustion relating to parts of patented products, inducement provisions in the Community Patent Convention, prohibition of excessive enforcement regarding claims for an injunction/destruction of components having other uses, and the issue of subjective elements (Section 101(ii) and (iv) of the Japanese Patent Law; joint direct infringement).

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18. Court Decisions Related to the Experimental Use Exception under Common Law and under Statute Law (Bolar Provision) in the United States
Kunihisa Masuoka
Researcher, Institute of Intellectual Property
Patent attorney, Intellectual Property Department, Takeda Pharmaceutical Company Limited

   In the pharmaceutical/biotechnological fields, various acts of experiment and research are generally conducted for many years until a single product (drug) is successfully developed. Also, the academia, such as universities, makes significant contributions in these fields. Indeed, it has become common for universities to conduct research jointly with companies or research commissioned by companies in recent years. Therefore, it is important particularly for a foreign owner of a U.S. patent to sufficiently identify and understand the differences between the U.S. practice and the practice in his/her own country in determining whether an unauthorized person's act of using his/her patented invention within the United States for purposes of experiment or research corresponds to patent infringement.

   Thus, the paper firstly analyzes recent U.S. court decisions related to common law exception and the points of contention. Then, it studies the development of court decisions related to application of the Bolar Provision, including decisions by lower courts. The paper then compares the identified/analyzed court decisions with the theories/court decisions in Japan and major European countries that are recognized to allow application of experimental use exception to a far broader scope of acts than the United States. Lastly, the paper attempts to examine the problems in the case of legislating experimental use exception provisions that could cover a broader scope of acts in the United States, and the relation with fair use of copyright.

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19. Decision Standards for Duty of Disclosure
Tatsuya Misawa
Researcher, Institute of Intellectual Property
Intellectual Property Division, Seiko Epson Corporation

   In U.S. patent practice, applicants are obligated to "disclose all information to the USPTO (United States Patent and Trademark Office) that the applicant knows to be material to the examination, and not to alter or inaccurately convey the facts," that is, they are imposed the duty of candor. Information subject to disclosure is not limited to the prior art as mentioned below, violation of the duty is recognized as inequitable conduct and the relevant right is deemed to be unenforceable. Due to the uncertainty of the U.S. intellectual property precedents, patent applicants in Japan now must worry about the handling of the duty of disclosure system.

   The determination of "materiality" and "intent to mislead" under the U.S. duty of disclosure system was considered in view of the decision standards of the court, such as immediate relevance between information that must be disclosed and claims, cumulative prior art, indirect evidence, recognition of information that must be disclosed, errors, and disclosure of non-English language references.

   In addition, a comparison was conducted between the U.S. duty of disclosure system and the Japanese system for disclosure of information on prior art documents, which is similar to the U.S. system, and thereby consideration was given to the desirable system in both countries.

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20. Intellectual Property as Securitized Assets
Hiroyuki Watanabe
Research Fellow, Institute of Intellectual Property

   The possibility of implementing the securitization of IPRs is extremely restricted due to various difficulties involved in such securitization. Looking at the overseas cases of IP-related securitization, the real picture was securitization of "royalty claims." The few cases of IP-related securitization in Japan are also likely to have been conducted by taking the royalty claims as reserves in actuality, though they took a form of transferring IPRs to SPVs. In this respect, the use of limited partnerships would also be appropriate as schemes for IPR-based investment in venture companies. The fact that acquisition of beneficial interest in trusts became permissible for limited partnerships with the recent amendment of law has also helped to expand the scope of limited partnerships' investment in IPRs. However, in order to make this scheme fully functional, early law improvement is desirable so that use of IPRs for trusts in the course of trade would become permissible.

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21. History of General Designations No. 15 and 16 and the Basic Principles of the Regulations of Unfair Trade Practices
Naoki Okubo
Research Fellow, Institute of Intellectual Property

   "Interference with transaction" such as preventing the formation of a contract and "interference with internal operation" such as encouraging a stockholder or an officer of a company to divulge secrets are prohibited under the Antimonopoly Act as unfair trade practices (General Designations No. 15 and 16). It is often argued that these types of practices are problems that only bring about private wrongs between two parties in a competitive relationship and they should normally be resolved under the Unfair Competition Prevention Law. However, the earlier studies have yet to give an answer to the question as to why such provisions that regulate these types of practices have been included in the Antimonopoly Act. Taking this question into consideration, this study inquires into the history of Section 5 of the Federal Trade Commission Act of the United States (FTC Act), from which these provisions on unfair trade practices have derived. This study will offer suggestions concerning basic principles of the regulations of unfair trade practices.

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22. Current Situation Surrounding Patents on Genes and Proteins - Protection from the Innovational Viewpoint -
Takeyuki Nishi
Research Fellow, Institute of Intellectual Property

   It has been suggested that the range of rights for biotechnology-related patents are typically broad and cover a high level of accumulation of technology. For gene / protein patents, however, there has been no clarification of specifically which points have broad ranges of rights, or of the consequences of this situation. For this study the claims were analyzed for about 600 gene / protein patents registered with the Japan Patent Office (JPO) between 1996 and 2003, and the problem points were identified and assessed. Furthermore, in order to assess the impact of current gene / protein patents on life sciences research in academia and industry, an analysis was made of the characteristics of inventions, from the properties of the gene / proteins to the derivation. Social systems and appropriate methods of protecting intellectual property to encourage innovation are considered and proposed.

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23. FY 2003 Study Report on the Japanese Economic Structure from a Competition Policy Perspective
-Study on the Disclosure of Technology-based Intangible Assets-

   Amongst recent policy focusing on intellectual property, companies have been required to work on "intellectual property management," in which business strategy, R&D strategy, and intellectual property strategy are unified, by using intellectual property as a source of competitiveness. On the other hand, market players are expected to appropriately valuate the value and future growth potential of companies that are putting "intellectual property management" into practice. Therefore, it was necessary to enhance communications about intellectual property between companies and the market by promoting disclosure of information on intellectual property through clarifying the methods of information disclosure that are beneficial to both parties.

   This research discussed the desirable disclosure of information on intellectual property from the viewpoint of companies and the market respectively, on the basis of the results of trial implementation by companies of the "Pilot Model for Disclosing Patent and Technical Information" published in March 2003, while taking into account the results of a questionnaire survey to institutional investors. By summarizing the discussions, the "Draft Guideline for Intellectual Property Information Disclosure" were then formulated as requested in the "Strategic Program for the Creation, Protection and Exploitation of Intellectual Property."

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24. FY 2003 Study Report on the Japanese Economic Structure from a Competition Policy Perspective
-Study on Court Judgments Concerning Calculation of the Amount of Damages in Intellectual Property Infringement Litigation-

   In Japanese litigation claiming damages for intellectual property right (IPR) infringement, there have been criticisms that it is difficult to prove the amount of damages and that the amount of damages awarded is excessively low.

   In order to address such criticisms, new provisions have been introduced in the Patent Law and other industrial property laws in recent years to facilitate the proving of the amount of damages. For instance, in the amendment of the four industrial property laws in 1998, provisions were established to presume the sum of money with the quantity of assigned articles by which the defendant's act of infringement was committed multiplied by the profit per unit quantity of the articles that the plaintiff could have sold to be the amount of damages. A similar provision was also introduced to the Copyright Law with the amendment in 2000 and to the Unfair Competition Prevention Law with the amendment in 2003.

   In order to provide helpful material for future legislation, this study investigates (i) how court judgments in litigation claiming damages have changed after the series of amendments, (ii) how frequently the amended provisions are actually being used, and (iii) the recent trend in determination of the amount of damages for IPR infringement. In addition, it makes analysis of the effects of the law amendments, etc..

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