Washington International Law Journal


Lee Rousso


In order to increase the quantity of intellectual property related legal services made available to the public, the Japanese Diet enacted a complete revision of Japan's eighty-year-old Patent Attorney Law. Under the terms of the new law, which became effective on January 6, 2001, benrishi (patent attorneys) have authority to greatly expand their range of professional activities. The newly recognized activities encroach upon the statutory monopoly long enjoyed by Japan's bengoshi (attorneys). Furthermore, the new legislation gives the benrishi a professional domain that is inconsistent with the profession's credential requirements. This Comment argues that the revision is likely to have negative and unforeseen consequences. First, given the highly regulated nature of Japan's professions, consumers, especially those the legislation was intended to assist, will infer that benrishi have legal training consistent with their sphere of authorized activities. This could put clients at a significant disadvantage in licensing contract negotiations, arbitration proceedings and other situations where the opposite party is represented by a bengoshi with extensive legal training. Second, benrishi will now have significant incentive to "capture" clients and steer them away from litigation. Conversely, bengoshi will have a new incentive to "capture" patent clients at the application and prosecution stages of the process rather than at the licensing and litigation stages. Given that the bengoshi can perform all levels of patent work but are not required to have even a minimal science or engineering background, this outcome would also put the best interests of clients at risk. Therefore, to preserve the integrity of Japanese patent practice, the Japanese government should take steps to harmonize the credentials of the benrishi and bengoshi professions both with each other and with respect to the demands of the patent law regime or, in the alternative, roll back the revision and shift the focus of reform to the bengoshi profession.

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