On March 11, 2026, the Japan Fair Trade Commission (JFTC) published its Survey Report on Abuse of Superior Bargaining Position Involving IP, Know-How and Data (the "JFTC Report"). On the same day, the Intellectual Property Transaction Fairness Working Group also issued a separate report on the fair and proper treatment of intellectual property transactions (the "Working Group Report"). Under Article 2, Paragraph 9, Item 5 of the Antimonopoly Act, abuse of a superior bargaining position refers to certain types of conduct in which a party unjustly exploits its superior bargaining position vis-à-vis a counterparty, contrary to normal business practices.

Both reports were intended to examine actual transaction practices and to support future enforcement and guideline development under the Antimonopoly Act and the Act on Preventing Delay in Payment to Small and Medium-Sized Entrusted Business Operators in Relation to Manufacturing Consignment (the "SME Transactions Act"). The SME Transactions Act applies to manufacturing consignments and certain other transactions between a relatively large entrusting business operator and a small or medium-sized entrusted business operator.

The JFTC Report, which summarizes the results of questionnaire surveys and interviews conducted with businesses, identifies a number of practices that may raise concerns under the Antimonopoly Act, particularly as possible abuses of a superior bargaining position. These include demands for the free transfer or free licensing of the IP, know-how and data (the "IP, etc."), unilateral setting of transaction terms or consideration paid, and coercive disclosure of know-how or data. The report also indicates that, depending on the case, the SME Transactions Act may take precedence over the Antimonopoly Act.

The Working Group Report points out that, in many cases, the scope of the IP, etc. and other intangible assets, as well as the consideration paid for them, is not clearly defined at the contract stage, with the result that businesses may fail to receive appropriate compensation corresponding to the value of the IP, etc. and other intangible assets transferred or licensed. It also notes that the intentions of businesses that do not wish to provide design data or similar materials in the first place should be respected. Against this background, the report states that the portion of consideration attributable to the value of the IP, etc. in a deliverable should be properly valued. The report also suggests that distinguishing such consideration from ordinary manufacturing or service fees during price negotiations could be one possible solution to this concern.

The reports further emphasize the importance of properly valuing the IP, etc., rather than allowing their value to be absorbed into general service fees or production costs. They also recognize multiple payment structures, including lump-sum payments, success-based fees and revenue-sharing arrangements, as possible options for more appropriate compensation.

In light of these reports, both the draft Guidelines on Abuse of Superior Bargaining Position, etc. for Appropriate Transactions of IP, etc. and the draft Model Contract Forms, were released for public comment. The content of these proposed guidelines, together with the reports themselves, merits close attention and continued monitoring.