사적 표준화 기구의 지식재산권 공개의무의 범위 및 공개의무 위반 행위에 대한 사후규제 - 지식재산권법과 독점규제법의 적용을 중심으로 - (The Appropriate Scope of IPR Disclosure Rules of SSOs and Regulation for the illegal Behavior violating the Rules under Intellectual Property Law and Antitrust Law)

서지정보

· 발행기관 : 한국지식재산학회
· 수록지 정보 : 산업재산권 / 36호 / 367 ~ 435페이지
· 저자명 : 오승한

초록

In the current economic circumstance, industry standards play an important role for business and consumers, widely understood as one of the instruments leading the modern economy. Standards can make products more valuable to consumers because of interoperability among products following the same standard. They, thus, can widen consumer choice and increase social efficiency.
However, it is reported that a standard could make innovation retarded by requiring significant additional costs to switch to alternative standard after the standard has been adopted. In particular, if a patent proprietor covers the technology required to implement the standard, he/she can exploit users of the technology by appropriate excessive royalty or royalty discrimination between competitors of the patent holder. For this reason, SSO requires those members to disclose patent information of potential standard technologies and FRAND commitment before publicize the standard.
Unfortunately, such disclosure rules can be avoided and a SSO member can exclude substitute technologies and dominate a relevant market of the technology incorporated the standard in the standard-setting process. In this situation, the SSO member’s violating disclosure rules of SSO can be condemned as exclusionary anticompetitive behavior and, thus, establish the infringement of antitrust law. However, a monopolist's act interrupting antitrust law must harm the competitive process, rather than one or more competitors.
For this reason, the antitrust plaintiff, the Government as plaintiff-that bears the burden of proving the causation between an exclusionary practice and anticompetitive effect of the monopolist's conduct. In the context of standardization process, the infringement of the rule of disclosing IP should be considered as general causation of monopolization of the standard technology. For this conclusion, SSO’s patent policy requiring disclosure of IP in the standard technology should show the scope of the disclosing duty and the result of indolence of the duty.

영어초록

In the current economic circumstance, industry standards play an important role for business and consumers, widely understood as one of the instruments leading the modern economy. Standards can make products more valuable to consumers because of interoperability among products following the same standard. They, thus, can widen consumer choice and increase social efficiency.
However, it is reported that a standard could make innovation retarded by requiring significant additional costs to switch to alternative standard after the standard has been adopted. In particular, if a patent proprietor covers the technology required to implement the standard, he/she can exploit users of the technology by appropriate excessive royalty or royalty discrimination between competitors of the patent holder. For this reason, SSO requires those members to disclose patent information of potential standard technologies and FRAND commitment before publicize the standard.
Unfortunately, such disclosure rules can be avoided and a SSO member can exclude substitute technologies and dominate a relevant market of the technology incorporated the standard in the standard-setting process. In this situation, the SSO member’s violating disclosure rules of SSO can be condemned as exclusionary anticompetitive behavior and, thus, establish the infringement of antitrust law. However, a monopolist's act interrupting antitrust law must harm the competitive process, rather than one or more competitors.
For this reason, the antitrust plaintiff, the Government as plaintiff-that bears the burden of proving the causation between an exclusionary practice and anticompetitive effect of the monopolist's conduct. In the context of standardization process, the infringement of the rule of disclosing IP should be considered as general causation of monopolization of the standard technology. For this conclusion, SSO’s patent policy requiring disclosure of IP in the standard technology should show the scope of the disclosing duty and the result of indolence of the duty.

참고자료

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