The Japanese Antimonopoly Act and Nonassertion of Patents Provisions: Microsoft's Conflict with the Japan Fair Trade Commission

Authors

Courtney E. Mertes

Abstract

In recent decades, Japan has strengthened its antimonopoly regulations. Now, a country that historically favored internal collusion continues to develop a stringent antimonopoly regime that encourages competition. The Japan Fair Trade Commission ("JFTC") enforces the Japanese Act Concerning the Prohibition of Private Monopoly and the Maintenance of Fair Trade ("Antimonopoly Act") and its provisions dealing with unfair trade practices. The JFTC takes a strong stance in enforcement of the Act and violators follow its recommendations. The JFTC has charged Microsoft Corporation ("Microsoft") with abuse of a dominant bargaining position and unfair trade practices in its use of restrictive provisions, such as non-assertion of patents provisions, in contracts and licensing agreements. Microsoft has removed the non-assertion provision from future contracts of its own accord, but indicated that it will continue to fight the JFTC's recommendation that the provisions be removed from existing contracts. Cooperating with the JFTC and removing the provision will lead to an improved image in Japan and will ensure that personal computer manufacturers will continue to develop new and innovative technologies, but removing it may also lead to backlash and an influx of litigation against Microsoft. In light of the plethora of potential problems that could result from a finding of illegality, Microsoft should continue to defend the non-assertion of patents provision and contest any unfavorable rulings from the JFTC.

First Page

713

Recommended Citation

Courtney E. Mertes, Comment, The Japanese Antimonopoly Act and Nonassertion of Patents Provisions: Microsoft's Conflict with the Japan Fair Trade Commission, 14 Pac. Rim L & Pol'y J. 713 (2005).
Available at: https://digitalcommons.law.uw.edu/wilj/vol14/iss3/5