This is a brief follow-up to a January 26, 2026 ip fray article on the Tokyo District Court’s plans to put a standard-essential patent (SEP) mediation procedure in place this month. And indeed, the Tokyo District Court has now published its SEP Judicial Mediation (SEPJM) rules.
From a Western legal perspective, “Mediation” is a misnomer for this type of proceeding. This is not alternative dispute resolution. It’s effectively conventional dispute resolution, just with a court-supervised negotiation process.
It is a fundamental principle of mediation in the United States and in Europe that parties get together voluntarily, whether with the help of a judge who is not involved with the contentious proceedings or a private mediator (who may or may not be a former judge). That includes the option to walk anytime they want. And there is no way that either party would feel any pressure to accept a particular proposal. In the West, mediation is 100% confidential. Even if a judge from the same court where a lawsuit is pending conducts the mediation, there is a strict rule that whatever anybody says or does (or elects not to do) during mediation remains confidential and will not influence the judgment.
By contrast, what the Tokyo District Court does is that a judge and two experts will make a proposal, and a party’s refusal to enter into a license agreement on the proposed terms will be recorded. The same applies to a party’s unwillingness to participate in mediation or its insufficient cooperation.
In practice, this means that it is called mediation, but doesn’t work like it. It’s actually closer to arbitration. Unlike arbitration, there is no formally binding award, but in practice, a party that rejects the final mediation proposal while its adversary would accept it will be at a high risk of losing the case. For an implementer, that means the risk of an injunction. For a SEP holder, it means that they may not get any meaningful remedy, in which case they would have to bet on other jurisdictions.
The Tokyo District Court calls those mediation sessions “hearings”, and that is what they are practically about. The parties seek to convince the “mediation committee”. Whatever the mediation committee ultimately proposes is a Hobson’s Choice.
The format is also more arbitration-like. Mediation tends to be either a single get-together or it’s open-ended, meaning that the mediator may keep trying to bring the parties to the table. The Tokyo format, however, has a rigid structure.
Bad news for implementers more so than for SEP holders
For implementers who have substantial Japanese sales and/or manufacturing operations in Japan, but who are also vulnerable to injunctions in ohter jurisdictions, the Tokyo District Court’s SEPJM guidelines are bad news. SEP holders can try the Japanese avenue with what would most accurately be described as coercive mediation. If they are fine with the mediation committee’s proposal, they can accept it. If the implementer doesn’t, they’ll get a Japanese injunction and likely obtain a settlement on that basis, possibly on even more favorable terms. If all else fails, they just seek leverage in other jurisdictions, most (if not all) of which won’t attach any importance to a refusal to accept terms proposed by a Japanese “mediation committee”.
Another jurisdiction with global FRAND ambitions
When the Tokyo District Court’s new SEP litigation guidelines became known, it was already clear that the court’s ambition was to bring about global FRAND license agreements (January 21, 2026 ip fray article). As we noted, that entails the risk of further interjurisdictional friction. Given how irreconcilable the Tokyo District Court’s envisioned mechanism is with Western values, the hurdle for antisuit injunctions will be low in jurisdiction such as the United States that attach significant weight to the question of whether foreign proceedings threaten to frustrate a key legal policy of the country in which an antisuit injunction is being requested.
What the global SEP litigation landscape needs is de-escalation. Tokyo-style coercive mediation of global license agreements has the opposite effect.