Thursday, November 24, 2011
Exercise of Patent Rights Under Japanese Anti-Monopoly Prevention Law: A Comparative Law Perspective
Posted by D. Daniel Sokol
Toshiko Takenaka, University of Washington - School of Law describes Exercise of Patent Rights Under Japanese Anti-Monopoly Prevention Law: A Comparative Law Perspective.
ABSTRACT: Article 21 of Japan’s Anti-monopoly Law gives immunity from anti-competition liability to the exercise of copyrights, patents, trademark registrations and other intellectual property (IP) rights. However, Japan’s Fair Trade Commission (FTC) excludes from the immunity a sham IP right exercise, which deviates from or conflicts with the mission of the IP system. A sham exercise of patent rights does not contribute to but rather hinders the promotion of inventions for developments of industry in Japan. This interpretation is also supported by the Basic Intellectual Property Law requiring the government to pay attention to the fair use of IP rights and public interests in developing Japan’s national IP strategies. When the Supreme Court of Japan decided the legality of recycled printer ink cartridges, it adopted a different approach from the U.S. Supreme Court and lower US courts. The Court’s limited application of the exhaustion doctrine allows the patentee to restrict resale and reuse of a patented product legally sold by the patentee. This article compares anti-monopoly issues regarding recycling patented products under Japanese and U.S. laws.