The Japan Fair Trade Commission (‘JFTC’) have recently released an amendment to the “Guidelines for the Use of Intellectual Property under the Antimonopoly Act” after receiving over 50 opinions during the public consultation in July-August last year. The amendment is aimed to address the issue of how the JFTC approach cases involving standard essential patents in patent litigation (the JFTC’s official English translation of the amended Guideline is viewable here).
According to the summary of opinions and the JFTC’s responses (available only in Japanese), the public showed concerns that the earlier draft could be construed as implying that seeking injunctive relief would generally be considered to be monopolisation and/or unreasonable restraint of trade, and therefore illegal. In response, the JFTC have stated that they have amended the relevant parts so that the injunctive relief would be considered illegal only under certain circumstances and that they would review each situation on a case-by-case basis, determining whether there is exclusionary conduct or a substantial restraint of competition.
Another concern raised in a large number of opinions was that the earlier draft was ambiguous on how it would be determined whether a party constitutes a 'willing licensee'. In the final Guidelines, the JFTC added several factors which could be considered. In this context, several opinions suggested that the JFTC should refer to the factors used in the recent CJEU decision of Huawei v ZTE.
Although the JFTC’s investigation Guidelines do not have any binding effect on courts' decisions, it will be interesting to see how the future FRAND disputes in Japan will be resolved at court and if the new Guidelines will have any impact. The IP High Court of Japan said in its judgment on FRAND issues in the 2014 Apple v Samsung case (English translations of the judgments are available here) that relatively few public opinions (invited by the court, as reported earlier in IPKat) suggested that the court should apply the Antimonopoly Act. Instead, there was stronger support for the IP High Court relying on the principle of good faith and theory of abuse of right, which are provided as fundamental principles of the Civil Code.