to be more willing to risk litigation with these individual inventors. One widely held Japanese industry view is that Japanese companies are disadvantaged by jury trials in U.S. patent cases, and this perception may cause these companies to be more hesitant in pursuing litigation. 11
If Japanese companies are able to become more competitive in their patent practices—primarily by filing broader claims in the United States and by litigating more aggressively and effectively—U.S. companies in a number of industries could find themselves faced with an even more formidable IPR challenge, both in the United States and in Japan. One key question is the extent to which Japanese companies will be able to establish greater control over basic technologies, both through upgrading their own basic research and by accessing and commercializing technologies generated at U.S. universities and national laboratories.
U.S. companies competing with Japanese industry in high-technology sectors employ a number of strategies to establish, protect, and exploit their intellectual property and technological competitive advantage. But the solutions to inadequate protection in Japan that are available to U.S. companies have several shortcomings.
First, the most effective ones, establishing a substantial presence in Japan and building the capability to optimize Japan patent strategies under the Japanese rules, are quite expensive. These solutions may not be affordable to small-and medium-size U.S. companies, which may rely even more heavily than larger companies on their technology and IPR position to break into the Japanese market. Even in enlisting the support of the U.S. government in specific cases, large employers usually find it easier than smaller firms to get the attention of members of Congress and others whose political support may be important at critical times.
Second, even these expensive solutions are no guarantee against receiving protection that is too narrow or too late to be useful. Workshop participants agreed that U.S. policy does have an important role to play and that intellectual property should be a key element in the Clinton Administration's overall trade policy—especially in its policy toward Japan.
Although some changes in corporate IPR strategy are expensive and the impact in individual cases is not guaranteed, some of those U.S. companies that have implemented an integrated IPR strategy with an aggressive Japan component report that this strategy more than pays for itself.
Either side may request a jury trial. A recent article concludes that there is no evidence of jury bias against Japanese patent litigants in the United States. See David Hill, “A Patent War Against Japanese Companies: Fact or Fiction?” AIPLA Bulletin, April-May-June 1993, p. 556.