표준특허권자의 부당한 권리행사의 제한가능성에 관한 검토

A Study for Possibility of Restriction on Standard-Essential Patent Holders Unfair Exercise of Rights

As development of transportation & communication enhances international trade, progress in world-wide standardization is enabling service interworking through technology sharing, technical efficiency improvement and providing convenience to the consumers. Today, companies are using standard patents as a strategic means to enter initial markets through standardization and securing international markets. SEPs are used as a major means to strengthen monopoly power in the technology market. SEPs technology has both the contradictory natures of patents rights for the sharing of technology and granting exclusive rights. For the sharing of technology, certain limits can be imposed on exercising standard patent rights, but this does not mean that standard patents lose their nature as an patent. Of the present problems related to the effectiveness of the intellectual property system, this studies purpose is to find a way to protect the standard patent holder while not to hamper market order. Regarding IPR policy, standardization organizations have no provisions about royalty related to FRAND conditions or sanction against FRAND violation. Therefore FRAND provisions lacks power of regulation, so practical measures to prevent patent holders from unfairly exercising rights are required. When FRAND terms are declared over a valid standard patent, the necessity to limit the rights of the patentee according to patent laws purposes and principles is generally recognized. As standard patents can be used by anyone once a reasonable royalty is payed, when one tries to use a standard patent by negotiating in good faith, the use of right to request prohibition should be rejected. In the past intellectual property was recognized as an exclusive right conflicting with antitrust law, but nowadays they are recognized as law systems with a common purpose to promote technological innovation and new product development, and to benefit the consumer and general society by promoting competition. In the case of essential technologies such as standard patents, regulations can be justified as market domination is possible because production is impossible without using the technology. Suggesting an economically unreasonable price or condition, or to propose a significantly unfair discriminatory price or condition compared to existing users is considered as an unfair trade practice. Antitrust laws and patent laws both have a common purpose to contribute to the nation's industrial development, so a balanced solution is needed between these two laws especially when there is conflict dealing with standard patent rights. When the FTC judges there is an unfair act of the standard patent holder and intervenes by regulating, collaboration with the expertise of the Patent Office is required.