The Japanese FTC has warned Microsoft to drop a clause from their contracts that limits the ability of their partners to sue them for patent infringement. The Japan Times reports here, and there is a Slashdot discussion on the article. I just wrote the following comment there:
I have read the original Japanese decision, dated July 13th. It is here:.
The legal reasoning at the very end of the document is just slighty longer as your average haiku . All it says is (translation mine):
"This is imposing unfair restricting conditions on the enterprise activity of PC makers and sellers in doing business with them and is therefore a case of number 13 of unfair business practices (FTC notice number 15/1982) and as such violating Article 19 of the Antimonopoly Act."
Readers of this reasoning are left without a clue when this kind of clause might be legal. There are many possible situations where this kind of defense against software patent claims might be quite reasonable.
One obvious one is a wide cross-license agreement between two companies. Did the FTC just outlaw those and make it impossible to cut through the software patent thicket?
It will be interesting to see if the FTC issues a less cryptic decision after the hearing with Microsoft.