Protective Order for Nondisclosure in Provisional Disposition Cases
In the beginning of this year, the Supreme Court of Japan issued a ruling that the Protective Order for Nondisclosure (Patent Act Article 105-4）can be requested in a provisional disposition case for an injunction against a patent infringement (2006(Kyo)36).
In a patent infringement trial, the involved parties may need to disclose their trade secrets. In such cases, the trade secrets must be protected. As a measure to protect trade secrets, parties involved in the trial can request the court to not disclose the trial record to third parties.
Furthermore, a party involved in the trial can request the court to issue the Protective Order for Nondisclosure against the other party. If the other party leaked a trade secret despite the Protective Order for Nondisclosure, the other party will face a criminal charge.
Aside from the normal infringement trial, the patent owner can request a provisional disposition that can quickly lead to an injunction against infringing products.
The case mentioned above raised a question as to whether a request for a Protective Order for Nondisclosure should be allowed. As provisional disposition cases require procedures that are different from those in the normal cases, the high court did not accept the request for Protective Order for Nondisclosure in provisional disposition cases. However, the Supreme Court ruled that the Protective Order for Nondisclosure is necessary in provisional disposition cases as well and that the request shall be accepted.
As can be seen, the Japanese court is currently putting an effort into strengthening the protection of trade secrets in trials involving intellectual property rights. If parties involved in a trial know that their trade secrets will be protected, it is easier for them to submit documents containing trade secrets to the court. At the same time, the court is issuing more orders to parties involved in a trial to submit the documents containing trade secrets.