표준 특허에 관한 법리의 지적재산권 전반으로의 확장 가능성에 대한 시론

A Study on the Possibility of Extending the Legal Theory on the Essential Patent toward Overall Intellectual Property Area

The right of intellectual property is the right for economic efficiency as well as promotion of innovation, and is protected for the policy of enlarge the overall social wealth with sharing the intellectual property by the public. In this perspective, it is unfair for the right owner to enjoy all value which is not originated from the intellectual property. In the paper, the scope of right to be enjoyed by the right owner is analyzed by economic analysis of law. For fair compensation on the innovation, the intellectual property is to be protected by property rule, not liability rule. However, when the profit protected by property rule is excessive, the right owner may take profit too far and it will make economic inefficiency. Specially standard patent or standard copyright work has more tendency to be protected in excess due to their features of standard, this kind of protection can make the absurd result. The intellectual property system is created for balancing between the compensation to the intellectual property owner and the free use by the public, the application of liability rule, and the adjustment between property rule and liability rule is considered cautiously.