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Shibata, Junko --- "Patent and Know-How Licences under the Japanese Antimonopoly Act" [2008] ELECD 250; in Drexl, Josef (ed), "Research Handbook on Intellectual Property and Competition Law" (Edward Elgar Publishing, 2008)

Book Title: Research Handbook on Intellectual Property and Competition Law

Editor(s): Drexl, Josef

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420475

Section: Chapter 8

Section Title: Patent and Know-How Licences under the Japanese Antimonopoly Act

Author(s): Shibata, Junko

Number of pages: 12

Extract:

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 monop-
olization 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 licens-
ing agreements and Section 21 of the AMA. According to the 1999
Guidelines, acts that are recognized as an exercise of rights ...