Antitrust
Partial Amendment of Guidelines for the Use of
Intellectual Property under the Antimonopoly Act
On January 21, 2016, the Japan Fair Trade Commission
("JFTC") issued a partial amendment to the
"Guidelines for the Use of Intellectual Property under the
Antimonopoly Act" ("IP Guidelines"). The JFTC has
stipulated the IP Guidelines and the Guidelines on Standardization
and Patent Pool Arrangements in order to clearly show the
principles governing the use of intellectual property rights,
including patent rights under the Antimonopoly Act. Although issues
related to the Standard Essential Patents ("SEPs") under
the Antimonopoly Act are to be evaluated based on these guidelines,
these guidelines contain limited detail regarding the exercise of
rights relating to SEPs (e.g., bringing an action for an injunction
by the SEP holder).
Under the amended IP Guidelines, in cases where a company wishes to
obtain an SEP license under fair, reasonable and non-discriminatory
conditions ("FRAND conditions"), if an SEP holder refuses
to license under FRAND conditions and/or brings an action for an
injunction, the acts may constitute (a) Private Monopolization if
such act results in the exclusion of a company from the market and
thus substantially restricts fair competition, or (b) an Unfair
Trade Practice if such act does not meet the standard of Private
Monopolization but has an adverse effect on fair competition.
Whether an offer from a company to grant an SEP license is genuine
should be determined carefully by taking into consideration various
factors, such as whether or not the company negotiates in good
faith.
Accordingly, companies which are members of a standard alliance or
organization should consider the amended IP Guidelines before they
take any action against competitors relating to SEPs.
Intellectual Property
Enforcement of the Amended Patent Act (April 1,
2016)
The 2015 Amended Patent Act, which includes an amendment to the
employee invention system as described in the August 2015 issue of
this newsletter, will come into force on April 1, 2016. Guidelines
concerning the determination of the reasonableness of
"reasonable benefits" given by employers in exchange for
the inventions of employees will be issued after the amended Act
comes into force. Such guidelines are to be established by the
Ministry of Economy, Trade and Industry under the amended Act.
Antitrust
Publication of the Final Versions of the Cabinet Office
Ordinance and Guidelines on the Amended Act against Unjustifiable
Premiums and Misleading Representations
("Act")
The amended Act introduces a new surcharge system that will come
into force on April 1, 2016. Under the new system, a business
operator who misleads a consumer into believing that a good or
service is vastly better or more advantageous than it actually is
can be required to pay a surcharge equal to 3 percent of the amount
of sale of the relevant good or service. In anticipation of the
amended Act coming into force, the final versions of the Cabinet
Office Ordinance, which provides details on how to report
violations and guidelines on how to calculate the surcharge amount,
were published on January 29, 2016.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
