7.9 Border measures
A patentee may commence customs proceedings in relation to the importation of allegedly infringing products. When a patentee files a petition for cessation of importation, the Customs office appoints three outside experts from a pool of Japanese patent law experts to decide whether to accept the petition. Requirements for acceptance are that (1) the patent has been infringed, (2) the infringement can be confirmed, (3) the infringing product can be identified at Customs, (4) the petitioner is the owner of the patent and (5) the patent is in effect. The importer is given an opportunity to present an invalidity defense as well as a non-infringement defense.
This process moves very quickly. Once a petition is accepted, it will be difficult to import an allegedly infringing product into Japan because every shipment of the product will need to go through a certification process, which takes some time. If a product is found to infringe a patent, it will be destroyed.
The speed and the potential for a harsh outcome impose significant pressure on alleged infringers. However, in contrast to International Trade Commission proceedings in the United States, the Japan Customs office will often decide to put a petition on hold if parallel court proceedings are pending.