지적재산권의 간접침해와 남용이론 - 지적재산권 간접침해영역의 확대경향에 대한 남용이론의 도입필요성을 중심으로

Contributory Infringement of Intellectual Property Rights and Misuse Doctrine

&nbsp;&nbsp;The misuse doctrine, originated from the US, is based upon the concept that intellectual property right is a monopoly and that there are dangers in that the acts of the right owners might extend the scope of intellectual property rights. It originated from the ‘unclean hands’ defense against an injunction, which is a relic of equity, then developed as a more general defense against intellectual property right owners. The misuse doctrine is based on the premise that right owners include anti-competitive clauses in licence agreements in order to unduly enlarge the scope of their rights. Note that one invoking the misuse doctrine does not have to be the related person. These misuse of intellectual property represents any agreement that can suppress competition so as to widen the protection of intellectual property that is recognized by the law. In such case, the scope of intellectual property is a vital criterion.<BR>&nbsp;&nbsp;The basic difference between the antitrust law and the misuse doctrine is that there are certain acts that are forbidden according to the misuse doctrine whilst it is allowed in the antitrust law. However such a division is inadequate as intellectual property right does not automatically mean monopoly and double restriction on an act, i.e. firstly limiting by the scope of intellectual property rights and secondly by the antitrust law, is an unnecessary procedure. Even in the US, the basic concept of antitrust law and misuse doctrine is considered similar that it is doubtful of introducing misuse doctrine as a separate legal institute.<BR>&nbsp;&nbsp;Also, an excercise of intellectual property right which goes against its original purpose is prohibited by article 2, paragraph 2 of the Civil Code in Korea. Furthermore, if an exercising of intellectual property right satisfies anti-competitive elements such as a deviation from its scope or an abuse of market power it is then prohibited by article 3bis and 23 of the Antitrust Act.