7.8 Appellate review
As noted in Section 7.3, Japan has adopted a three-tier court system in relation to civil matters, including those relating to patents. A party who is dissatisfied with the patent judgment of a court of first instance (the Tokyo District Court or the Osaka District Court) can appeal to the court of second instance (the IP High Court), and a party who is dissatisfied with that decision can appeal to the court of third instance (the Supreme Court). Any appeal against a patent infringement decision of the district courts is under the exclusive jurisdiction of the IP High Court.285
The IP High Court consists of four divisions. A panel of three judges will usually hear patent infringement cases. The IP High Court may also convene a Grand Panel of five judges for particular matters.286 Article 310-2 of the Code of Civil Procedure provides the following:
In the Tokyo High Court, if an appeal is filed against a final judgment that any of the courts specified in the items of Article 6, paragraph (1) enters as the court of first instance in an Action Involving a Patent Right, etc., a panel of five judges may rule for the panel to conduct a trial and reach a judicial decision on that case; provided, however, that this does not apply to a case that involves an appeal to the court of second instance, against a final judgment in an action for litigation that has been transferred pursuant to the provision of Article 20-2, paragraph (1).
When reviewing district court decisions, the IP High Court may consider both factual and legal issues. The IP High Court’s patent infringement lawsuit process is carried out in accordance with the Code of Civil Procedure and the special provisions of the Patent Act outlined above. The IP High Court will generally focus on the judgment rendered by the district court and the grounds of the appeal, but the court may review all the evidence already submitted by the parties in the district court and new evidence submitted (subject to certain restrictions) by the appellant and respondent in the appeal court process.
The IP High Court renders a judgment revoking the judgment of the district courts or dismissing the appeal after examining the fact-finding and the application of law by the judgment of the district courts. A dissatisfied party may file a final appeal or a petition for the acceptance of a final appeal with the Supreme Court on a question of law against the judgment of the IP High Court.287