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- Licensing
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- Licensing product technology is an alternative with
- considerable appeal. A firm can immediately contribute to
- its bottom line with little investment or direct cost.
- What is often overlooked, however, is the missed
- opportunities and indirect costs of licensing.
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- Licensing is a very limited form of market participation.
- High potential returns from marketing and manufacturing
- efficiencies are lost, and very little market information
- is gained. Often licensing agreements prove to be
- short-lived as the licensee develops the ability to become
- a competitor to the licensor in all markets. Indirect
- costs of managing and policing the licensing agreement are
- also often overlooked. There are many cases of licensees
- under-reporting sales and under-remitting royalty payments.
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- The key to success in a licensing agreement is having a
- partner whose goals coincide with your own. Indirect
- expenses should be anticipated, and the contract should
- provide for a cross-technology exchange between licensor
- and licensee. Important to the management of a licensing
- agreement is having a well-qualified individual assume
- responsibility over the management of the contract. This
- individual should maintain close contact with the licensee
- and stay abreast of the Japanese market by visiting Japan
- periodically. A carefully constructed and executed
- licensing agreement can prove beneficial, but the risks and
- costs should be anticipated.
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- Until recently, according to the Foreign Exchange and
- Foreign Trade Control Law, nonresidents who planned to
- execute or amend any agreement with Japanese nationals for
- the import of technology had to give prior notice to the
- Ministry of Finance through the Bank of Japan and any other
- ministry exercising jurisdiction over the affected
- industry. In practice, the investor was notified that the
- Japanese Government had no objection within one hour
- following notification, if the proposed investment was in
- unrestricted industries. However, as part of an SII
- commitment, this prior notification requirement has been
- replaced by ex post facto notification for investment in
- unrestricted sectors. Technology transfer agreements may
- normally be executed except in those cases involving the
- transfer of specially regulated and/or designated
- technologies, in which case a report must be filed with the
- Ministry of Finance and the appropriate Japanese
- ministries.
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- Special regulations apply to the following sectors based on
- the U.S.-Japan Treaty of Friendship, Commerce, and
- Navigation and the Code of Liberalization of Capital
- Movements of the Organization for Economic Cooperation and
- Development (OECD): broadcasting; telecommunications;
- electric power generation; domestic rail and air
- transportation; arms; gun powder; atomic energy; aircraft;
- space development; narcotic manufacturing; vaccine
- manufacturing; security guard services; agriculture,
- forestry, and fisheries; petroleum refining and marketing;
- leather and leather product manufacturing; and mining.
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- Moreover, the Japanese Government has specified the
- following 12 areas as the designated technologies which
- have significant influence on the security of the nation
- and the interest of the national economy: aircraft, arms,
- gun powder, atomic energy, space development, electronic
- computers, electronic parts for electronic computers for
- next generation, appliances for laser processing and light
- communication, innovative materials, salt electrolysis by
- nonmercurial methods, petroleum production at sea bottom,
- and leather and leather products.
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- In addition to the regulations mentioned above,
- international technology assistance contracts are subject
- to screening by the Japanese Fair Trade Commission (JFTC).
- The licensor and licensee are required to file jointly the
- report of the licensing agreement with the JFTC within 30
- days after the conclusion of the contract. The JFTC is
- authorized to act if the contract may be interpreted to
- constitute unreasonable restraint of trade or unfair
- business practices. The U.S. Government has sought the
- removal of this discriminatory filing requirement in the
- SII.
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