공정거래법상 특허권 행사행위의 평가 - 원칙적 법리의 확인

Abstract

While plenty of competition law discussion on exercises of Standards-Essential Patents (hereinafter “SEPs”) has been noticed recently, there has been only scanty discussion on the competition law analysis of non-SEPs so far in the Korean competition law community. Article 59 of the Monopoly Regulation Act, which is modeled after Article 21 of the Japan Anti-monopoly Act, exempts reasonable exercises of intellectual property rights. Although various theories on the provision have been suggested, most of them cannot provide the Korean competition law enforcers with clear and useful guidance on the interplay between intellectual property and competition law. The recently amended Intellectual Property Rights Guidelines (hereinafter “IPR Guidelines”) also fails to give clear and principled standards for reviewing exercises of intellectual property rights in general under the Monopoly Regulation Act.In light of the developments of case law and legal theories on the intersection of intellectual property right and competition law in leading competition law jurisdictions, so-called `Scope of the Patent test`and its variation should be rejected as a proper test for reviewing exercises of intellectual property right under the Monopoly Regulation Act. The proper standards for evaluating legality of an exercise of patent rights should strike a balance between its anti-competitive effects and its positive impact on incentives to innovate, giving ultimate priorities to consumer welfares. Additionally, the repeal of Article 59 of the Monopoly Regulation Act is recommended to avoid unnecessary confusion in the course of competition law enforcement against anti-competitive exercises of intellectual property rights.

In light of the developments of case law and legal theories on the intersection of intellectual property right and competition law in leading competition law jurisdictions, so-called ‘Scope of the Patent test’and its variation should be rejected as a proper test for reviewing exercises of intellectual property right under the Monopoly Regulation Act. The proper standards for evaluating legality of an exercise of patent rights should strike a balance between its anti-competitive effects and its positive impact on incentives to innovate, giving ultimate priorities to consumer welfares. Additionally, the repeal of Article 59 of the Monopoly Regulation Act is recommended to avoid unnecessary confusion in the course of competition law enforcement against anti-competitive exercises of intellectual property rights.