특허권의 거래거절과 독점규제법

Refusal to License Patent and Antitrust Claim

Does an intellectual property owner's unilateral refusal to deal always violate antitrust law? The answer should be "O". It can also be true even when the patent owner refuses to license his patent with an anticompetitive purpose. Patent law focuses on the "future" market effectiveness through continuous innovation while antitrusts law focuses on the "present" market effectiveness through equitable distribution of resources. Patent itself is anticompetitive from an antitrust view and the conflict is inevitable. However, both U.S.C. §271(d)(4) and Korean antitrust law §59 clearly declare that patent takes precedence of antitrust. On the patent-antitrust conflict, accordingly, nobody who exercises the patent rights justified by patent law is liable under antitrust law. It does not mean that a patent owner can do everything with no restriction. The range of the rights and the reasons of restriction is provided by patent law. If a kind of unlawful activity is regulated by patent law, antitrust law should not be applied; only patent law should be exclusively applied. Antitrust law should be the last one to be applied to patent related cases.