Edited by Josef Drexl
Chapter 8: Patent and Know-How Licences under the Japanese Antimonopoly Act
Junko Shibata 1 Introduction When granting a licence, the licensor imposes various collateral conditions on the licensee, or vice versa. In such a case, depending on the details of the licence and the position of the licensor and licensee in the market, the act of licensing may constitute an unreasonable restriction of trade, a private monopolization or an unfair trade practice, all of which violate the Japanese Antimonopoly Act (AMA).1 2 Section 21 AMA on intellectual property For a long time, there has been a debate in Japan on the relationship between competition law and IP law. Section 21 of the Japanese AMA provides for an exemption from the AMA, namely: ‘The provisions of this act shall not apply to such acts recognizable as the exercise of rights under the Copyright Act, the Patent Act, the Utility Model Act, the Design Act, or the Trademark Act’. The discussion has been focused on how to understand this provision. It is now generally acknowledged that the protection of the IP right should not consequently lead to a monopoly in the relevant market as defined under competition law. The 1999 Guidelines for Patent and Know-how Licensing Agreements (1999 Guidelines)2 provide the Japan Fair Trade Commission’s (JFTC) views regarding the relationship between restrictions in patent licensing agreements and Section 21 of the AMA. According to the 1999 Guidelines, acts that are recognized as an exercise of rights under the Patent or other Acts are not subject to the application of the AMA....
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