표준필수특허권자의 ‘하위 사업자’에 대한 FRAND 위반 행위의 규제
Under the Antitrust Law, Regulation for SEP Proprietor’s Demanding Supra Competitive Royalty to the Licensee in the Downstream Market, Violating FRAND Commitments
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In developing and setting standards, SSOs (Standard Setting Organizations) are required to incorporate very limited specific proprietary technologies(patent) into the standard essential patent technology groups (hereinafter “SEP”) with view to remove duplicated license fees and downsize royalties. As a result of the standard setting process, SEP proprietors could own the monopoly position in each indispensable standard technology market. When the standard becomes widely used, the holders of SEPs could exercise the monopoly power to demand more than the value of their specific patented technologies. In this regards, the FRAND commitment has played the important role to prevent the essential IP owner’s exploiting the users of the standard technologies after a standard setting process is completed. Each FRAND violation practice itself, however, could not easily establish the antitrust injury if there is no exclusion of rivals. Under the traditional view of antitrust law, because the patent holders are in the upstream market, their raising cost of the licensee in downstream market has not been the anticompetitive concerns, but the unfair problems, on which antitrust law could not be invoked based. This essay, however, insists that the breach of FRAND promise should be considered as one of anticompetitive practices. The result of each breaching FRAND commitments consists of anticompetitive harms because it increases the price of standard conforming end products and decreases the consumer choices, which could not arise if the SEP owners keeps FRAND commitments and competition rules of standardization.
Abstract
In developing and setting standards, SSOs (Standard Setting Organizations) are required to incorporate very limited specific proprietary technologies(patent) into the standard essential patent technology groups (hereinafter “SEP”) with view to remove duplicated license fees and downsize royalties. As a result of the standard setting process, SEP proprietors could own the monopoly position in each indispensable standard technology market. When the standard becomes widely used, the holders of SEPs could exercise the monopoly power to demand more than the value of their specific patented technologies. In this regards, the FRAND commitment has played the important role to prevent the essential IP owner’s exploiting the users of the standard technologies after a standard setting process is completed. Each FRAND violation practice itself, however, could not easily establish the antitrust injury if there is no exclusion of rivals. Under the traditional view of antitrust law, because the patent holders are in the upstream market, their raising cost of the licensee in downstream market has not been the anticompetitive concerns, but the unfair problems, on which antitrust law could not be invoked based. This essay, however, insists that the breach of FRAND promise should be considered as one of anticompetitive practices. The result of each breaching FRAND commitments consists of anticompetitive harms because it increases the price of standard conforming end products and decreases the consumer choices, which could not arise if the SEP owners keeps FRAND commitments and competition rules of standardization.
참고문헌 (20)
- 권국현, "지적재산권 라이센싱의 법적규제" (2011), ICR 혁신․경쟁․규제법센터
- 기술표준 설정과 FRAND 선언, 그 공정거래법적 의미, "김지홍", 법․경제분석그룹(LEG), ~ (2014)
- 송재섭, "표준특허에 근거한 권리행사의 한계 - 침해금지청구권과 손해배상청구권을 중심으로 -", 저스티스, 140, pp.210~249 (2014), 한국법학원
- 오승한, "FRAND 확약 특허권자의 자발적 실시자에 대한 금지청구권의 행사와 독점규제법 위반 책임", 경쟁법연구, 29, pp.217~278 (2014), 한국경쟁법학회
- 오승한, "FRAND 확약을 위반한 실시료 청구의 비합리성 판단기준", 지식재산연구, 11(3), pp.59~94 (2016), 한국지식재산연구원
- 오승한, "표준필수기술 선정절차에서 기만적 FRAND 확약을 제출한 특허권자의 권리실행 제한에 관한 연구", 지식재산연구, 7(4), pp.1~46 (2012), 한국지식재산연구원
- 오승한, "표준개발 과정에서 제출된 FRAND 의무 위반행위의 판단기준에 대한 연구", 경제법연구, 11(2), pp.173~209 (2012), 한국경제법학회
- 표준특허 선정 관련 공정경쟁 확보 및 합리적 라이센싱 방안에 대한연구, "윤기호", 공정거래위원회, ~ (2010)
- Phillip E. Areeda, "Antitrust Law-An Analysis of Antitrust Principles and Their Application" (2011)
- Bjorn Lundqvist, "Standards in EU Competition Rules and US Antitrust Laws:The Rise and Limits of Self-Regulation" (2014), Edward Elgar Pub.
- Damien Geradin, "Can Standard-Setting Lead to Exploitive Abuse: A Dissonant View on Patent Hold-Up, Royalty Stacking and the Meaning of FRAND", European Competition Journal, 3, pp.101~ (2007)
- Daniel G. Swanson, "Reasonable and Nondiscriminatory (RAND) Royalties, Standards Selection, and Control of Market Power", Antitrust L.J, 73(1) (2005)
- Douglas Lichtman, "Rethinking Prosecution History Estoppel", U. Chi. L. Rev, 71, pp.151~ (2004)
- Herbert Hovenkamp, "Federal Antitrust Policy, The Law of Competition and Its Practice" (2016)
- Herbert Hovenkamp, "IP & Antitrust: Analysis Antitrust Principle Applied IP Law", ~ (2015)
- James F. Rill, "Antitrust and FRAND Bargaining: Rejecting the Invitation for Antitrust Overreach into Royalty Disputes", Antitrust, 30, pp.72~ (2015)
- John M. Skenyon, "Patent Damages Law and Practice", ~ (2011)
- Maurits Dolmans, "Standards for Standards", Fordham International Law Journal, 26, pp.163~ (2002)
- Roger D. Blair, "Some Remarks on Monopoly Leveraging", Antitrust Bull, 40, pp.371~ (1995)
- Suzanne Michel, "Bargaining for RAND Royalties in the Shadow of Patent Remedies Law", Antitrust L.J, 77, pp.889~ (2011)