New Court Frameworks for SEP Disputes in Japan

In January 2026, the Intellectual Property Divisions of the Tokyo District Court (Civil Divisions 29, 40, 46, and 47) published two procedural documents concerning disputes involving standard essential patents (SEPs): the Procedural Guidelines for Patent Infringement Litigation Based on Standard Essential Patents and the Procedural Guidelines for SEP Judicial Mediation (SEPJM).

In light of the global nature of technical standards and the cross-border implementation of SEPs, both frameworks aim to facilitate agreement between the parties on a FRAND royalty covering the SEP holder’s global SEP portfolio, including the SEP at issue. This article outlines the key features of these new procedures.

1. Procedural Guidelines for SEP Patent Infringement Litigation (Jan 2026)

According to the guidelines, one important role of the court in SEP infringement litigation is to contribute to the global resolution of SEP disputes by facilitating agreement on a FRAND royalty for the SEP holder’s global SEP portfolio.

From this perspective, the court will, in principle, recommend settlement at the first hearing. To promote early agreement on a global FRAND royalty, the court may designate settlement discussions in a planned and concentrated manner.

The guidelines note that, in many SEP cases, issues of infringement and validity are relatively limited. Instead, the principal issue often concerns the defense of abuse of rights—namely, whether the implementer has demonstrated a willingness to obtain a license on FRAND terms.

If settlement negotiations following the court’s recommendation do not lead to agreement, the parties are required to submit briefs and evidence organizing their arguments regarding the abuse-of-rights defense. These submissions are to be based on the negotiation history between the parties, including negotiations conducted before the filing of the action and during the subsequent settlement process.

Where issues of infringement or validity do arise, the court will set deadlines for two rounds of briefing on those issues (plaintiff’s allegations and proof, defendant’s rebuttal and counter-proof, plaintiff’s further rebuttal and proof, and defendant’s further rebuttal and counter-proof). In principle, these issues will be addressed through written proceedings, although the court may designate a technical presentation session if necessary.

During the settlement process, the court seeks to exclude extreme negotiating positions associated with hold-up and hold-out and to promote a fair and neutral negotiation framework. While respecting the parties’ negotiation history and proposals, the court may adjust the parties’ settlement proposals in order to facilitate agreement. The court may also present its own settlement proposal concerning the global FRAND royalty. However, the court will not unilaterally determine the royalty amount; rather, it will present a proposal after sufficiently hearing and considering the views of both parties.

The guidelines also clarify the parties’ preparation. The plaintiff is expected to propose a global FRAND royalty in the complaint and explain the basis for its calculation. Various methodologies may be used, including a top-down approach, a comparable-license approach, or a combination of these methods.

The defendant, in its answer, must respond to the plaintiff’s calculation basis and submit a counterproposal supported by its own calculation methodology. The defendant must also provide evidence concerning matters such as the sales volume and revenue of the accused products. The guidelines note that failure to submit evidence necessary for calculating the royalty may lead the court to conclude that the defendant lacks the intention to obtain a license on FRAND terms.

2. Procedural Guidelines for SEP Judicial Mediation (SEPJM) (Jan 2026)

In addition to the litigation framework, the Tokyo District Court has introduced SEP Judicial Mediation (SEPJM), a court-administered mediation procedure designed specifically for SEP disputes.

SEPJM aims to facilitate agreement on a FRAND royalty covering the SEP holder’s global SEP portfolio, including the SEP at issue. Referring to global standards, the mediation committee supports the parties in reaching agreement on the global FRAND royalty and, in principle, seeks to resolve the dispute within three mediation sessions.

The procedure is characterized by three features: internationality, speed, and expertise.

First, reflecting the global nature of SEPs, the mediation focuses on agreement on a global FRAND royalty. Various recognized methodologies may be used to calculate the royalty, including top-down and comparable-license approaches.

Second, the procedure emphasizes speed. In many cases, negotiations between the parties have already taken place before mediation is initiated, and the relevant issues and materials concerning the royalty calculation have already been identified. On this basis, the procedure aims to achieve resolution within approximately three mediation sessions, with both parties submitting their briefs and evidence before the first session.

Third, SEPJM places emphasis on expertise. The mediation committee consists of three members: one judge from the IP Division and two experts, such as attorneys or patent attorneys with extensive experience in intellectual property matters. Court research officials with specialized technical knowledge may also participate where necessary.

Under the procedure, the petitioner must propose a global FRAND royalty in the petition and clearly explain the basis for the calculation. The respondent must reply to the proposal, present its own counterproposal, and submit supporting evidence, including information on the sales volume and revenue of the relevant products.

At the first mediation session, the mediation committee hears the parties’ proposals and instructs them to submit further counterproposals before the second session. The parties are also encouraged to discuss and prepare an agreement concerning terms other than the royalty to facilitate overall agreement.

At the second mediation session, the committee may either present a mediation proposal or instruct the parties to submit final proposals. A simplified technical presentation session may also be scheduled if necessary. At the third session, the committee confirms whether the parties accept the mediation proposal and declares the mediation either successful or unsuccessful.

If mediation is unsuccessful, the mediation record may include the mediation proposal and the committee’s written opinion. The parties may subsequently submit these materials in later litigation or provisional injunction proceedings in connection with the abuse-of-rights defense.

3. Conclusion

The two procedural frameworks introduced by the Tokyo District Court establish a structured approach to resolving SEP disputes with a focus on facilitating agreement between the parties on a global FRAND royalty. Both the litigation and mediation procedures emphasize concrete royalty proposals, transparent calculation methodologies, and the assessment of whether the implementer has demonstrated a willingness to obtain a license on FRAND terms. Together, these frameworks reflect the court’s intention to play an active role in supporting negotiation and settlement in SEP disputes involving global licensing issues.