A translation of the Guidelines for the use of intellectual property under the Antimonopoly Act was released on September 28. The guidelines apply to any technology protected by Japan’s IP laws. They replace the July 1999 Guidelines for Patent and Know-How Licensing Agreements, under the Antimonopoly Act.
In the section outlining basic principles, the new guidelines state: "In other words, any business activity that may seem to be an exercise of a[n IP] right cannot be ‘recognizable as the exercise of the right’ ... provided that it is found to deviate from or run counter to the purposes of the intellectual property system."
According to the guidelines, activities between competitors impact on competition when they are "more likely to result in evasion of competition". Restrictions on the use of influential technology, defined as a standard in the market that is difficult to develop around, can also restrict competition.
Restrictions on technology use are said to have a negligible effect if the firms involved have a market share of 20% or less.
The guidelines also deal with patents pools, saying:
"In a case where a firm participating in a patent pool refuses to grant a licence to any new entrant or any particular existing firm without any justifiable grounds, to hinder it from using the technology, the restriction may correspond to the exclusion of business activities of other firms."
Similarly, cross licensing "constitutes unreasonable restraint of trade if it substantially restraints competition in the field of trade of the product in question".
The guidelines also deal with restrictions on bundle licensing multiple licensing, and the protection of know-how, defined as technical knowledge not publicly known.
The Japanese guidelines come after China passed its Anti-Monopoly law on August 31 this year. It is due to come into effect on August 1 2008.
In Europe the Court of First Instance decision to uphold a €497 million fine imposed on Microsoft by the European Commission set out three "exceptional circumstances" under which a refusal to license IP rights can constitute an abuse of competition law.
The decision led some observers to claim that the decision could lead to more compulsory licensing of technology in the EU.
