According to Microsoft, the clause, known as the non-assertion of patents, or NAP, provision, is designed to encourage computer manufacturers to raise any intellectual property concerns they may have before shipping a new version of its Windows operating system.
But Toshihiro Hara, director of the First Special Investigation division at Japan's Fair Trade Commission, speaking to Reuters, argued: "There is a high probability that the provision will discourage PC makers from developing their own technology,"
In February, acting on complaints, the JFTC raided the offices of Microsoft Japan looking for evidence of anti-competitive behaviour. Shortly afterwards Microsoft agreed to remove the provision from new agreements with computer makers.
This, as far as the JFTC is concerned, is not good enough. According to yesterday's Recommendation, Microsoft's conduct "shall be construed as dealing with PC manufacturers on conditions which unjustly restrict their business activities", in violation of Japan's Antimonopoly Act.
The Recommendation requires that Microsoft "terminate" the clause in "the current and previous agreements concluded with Japanese PC manufactures".
However, Microsoft responded by confirming that it would not remove the provision from past agreements, and would be seeking a review of the decision.
"We believe that the provision at issue fairly balances IP protection and the need to create a stable environment for the development of the IT industry by avoiding disruptive IP disputes," the company said in a statement. "While we decided earlier this year to remove this particular provision in contracts going forward, this balancing provision has a limited continuing effect under past agreements."
The Commission is therefore likely to institute a series of hearings, after which it will issue a decision. This can then be appealed to a Tokyo court, according to the Washington Post.
