In January 2026, the Intellectual Property Divisions of the Tokyo District Court (TDC) published the "Procedural Protocols for Patent Infringement Litigation Involving Standard Essential Patents (SEPs)" (the "Protocols").¹

For over a decade, Japan’s SEP jurisprudence has been governed by the 2014 Intellectual Property High Court Grand Panel decision in Apple v. Samsung.² This ruling established the FRAND defense, which limits a patentee’s right to seek injunctions against willing licensees. However, the decision was perceived as setting a high bar for patentees by requiring strict scrutiny before a licensee could be deemed unwilling. Following years of judicial silence under this seemingly high threshold, 2025 saw a wave of pivotal decisions―most notably, the TDC granted an injunction in an SEP infringement suit for the first time in Japan.³ The TDC is taking a further proactive stance on global SEP dispute resolution through the new Protocols. These measures aim to facilitate settlement on global FRAND royalties for an SEP holder’s entire portfolio, rather than limiting the scope to individual Japanese patents.

This article outlines the key features of the Protocols for companies considering Japan as a strategic venue for SEP dispute resolution.

¹ https://www.courts.go.jp/tokyo/saiban/minzi_section29_40_46_47/SEP_tokkyoken_shingai/index_2.html （In Japanese）

² Intellectual Property High Court Grand Panel Decision, May 16, 2014; Case No. 2013 (Ne) 10043 (Apple v. Samsung).

³ Tokyo District Court Decision, June 23, 2025; Case No. 2023 (Wa) 70501 (Pantech v. Google).

1. Pleading Stage and Initial Disclosures

Under the Protocols, the plaintiff (patentee) is expected to propose global FRAND royalties in the complaint, providing a specific basis for its calculation. The plaintiff may use a top-down approach (which derives a rate from the total aggregate royalty for the standard), a comparable license approach (which relies on existing market benchmarks) or a combination of both, provided there is a supporting rationale.

The defendant (implementer) is then expected to respond in its answer by admitting or denying the plaintiff’s calculations and presenting a counterproposal for global FRAND royalties, including a specific basis for such calculation. Importantly, the defendant is also expected to submit evidence showing the sales volume and revenue of the accused products; failure to do so may result in the defendant being deemed an unwilling licensee.

2. Intensive Settlement Conferences

Under the Protocols, the TDC will, at the very first oral hearing, invite the parties to settle the dispute and schedule a series of intensive settlement conferences to facilitate an agreement.⁴

During these conferences, the TDC will maintain a fair and neutral stance, precluding extreme negotiation tactics—such as hold-up or hold-out—while respecting the settlement proposals submitted by both parties. While the court may ultimately propose its own settlement terms for global FRAND royalties, any such proposal will be formulated only after thoroughly hearing and respecting the intentions of both parties.

Of particular note, the parties are expected to negotiate all terms other than the global FRAND royalty rates immediately following the first hearing. This process aims to get the parties to draft a conditional agreement, which will subsequently be finalized once the global FRAND royalties are agreed and duly incorporated.

⁴ If infringement or validity is contested, the TDC will, at the first hearing, establish a briefing schedule that runs in parallel with the settlement conferences. This schedule typically consists of two rounds of written submissions from each party—comprising initial arguments followed by subsequent rebuttals. The TDC may also convene a technical briefing session as necessary.

3. Procedures Following Breakdown of Negotiations

If settlement negotiations are terminated due to a lack of progress, both parties are required to promptly submit comprehensive arguments regarding the abuse-of-rights defense, which centers on whether the implementer remains a willing licensee on FRAND terms—the pivotal issue in Japanese SEP litigation. These submissions, which encompass the entirety of negotiations from the pre-litigation stage through to the breakdown of court-monitored settlement efforts, will be subject to the TDC’s review for its final judgment.

We hope the above outline provides a clearer understanding of the new procedural landscape for SEP litigation in Japan.