FRAND 확약 특허권자의 자발적 실시자에 대한 금지청구권의 행사와 독점규제법 위반 책임
The Execution of Injunctive Relief Based on the FRAND-encumbered SEP for ‘Willing Licensee’ and its Responsibility under Antitrust Law
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Since standardization began to be considered as the tool to increase efficiency ofinteroperable products or services, such as telecommunication IT products, theproblem of hold-up by market dominant standard essential patent (“SEP”)holders has been one of most important issues. Fair, Reasonable, andNon-discriminatory (“FRAND”) commitments has been devised as themethod to resolve the problem. The role of the commitments, however, seemsto be very limited because of patent proprietors’ free violation of the FRANDpromise. The SEP owner’s free hold-up leads to the increase of price for theproducts using standards and makes the standardization retarded seriously. For this reason, competition agencies in the world have tried to investigatewhether the SEP patent owners’ breach of the FRAND could establish theviolation of antitrust law. In particular, recent debating issues are related tothe possibility of injunctive relief for SEP holders subject to FRANDcommitments and the request of injunctive relief by the SEP ownerssubmitting FRAND commitments should be considered as the exclusionarypractice, which establishes antitrust law violations. Actually, the competitionagencies recently consider the pursuit of injunctive relief based on theFRAND-encumbered SEPs as a serious competitive concern. In this regard, this essay will review under what circumstances SEPproprietors’ seeking injunctive relief should be allowed and should bepunished as the acts restraining competition. This study will insist that basedon the meaning of the FRAND, a SEP owner submitting FRANDcommitments should not be allowed to seek an injunction against an actual orprospective willing licensees who promise to pay the FRAND royalty. Such injunctive relief could be granted only under the circumstance that a licenseeis unwilling to negotiate in good faith to reach a FRAND license or does notresponse to the SEP owner’s offer, which demand FRAND royalty determinedimpartially by a court or a third party.
Abstract
Since standardization began to be considered as the tool to increase efficiency ofinteroperable products or services, such as telecommunication IT products, theproblem of hold-up by market dominant standard essential patent (“SEP”)holders has been one of most important issues. Fair, Reasonable, andNon-discriminatory (“FRAND”) commitments has been devised as themethod to resolve the problem. The role of the commitments, however, seemsto be very limited because of patent proprietors’ free violation of the FRANDpromise. The SEP owner’s free hold-up leads to the increase of price for theproducts using standards and makes the standardization retarded seriously. For this reason, competition agencies in the world have tried to investigatewhether the SEP patent owners’ breach of the FRAND could establish theviolation of antitrust law. In particular, recent debating issues are related tothe possibility of injunctive relief for SEP holders subject to FRANDcommitments and the request of injunctive relief by the SEP ownerssubmitting FRAND commitments should be considered as the exclusionarypractice, which establishes antitrust law violations. Actually, the competitionagencies recently consider the pursuit of injunctive relief based on theFRAND-encumbered SEPs as a serious competitive concern. In this regard, this essay will review under what circumstances SEPproprietors’ seeking injunctive relief should be allowed and should bepunished as the acts restraining competition. This study will insist that basedon the meaning of the FRAND, a SEP owner submitting FRANDcommitments should not be allowed to seek an injunction against an actual orprospective willing licensees who promise to pay the FRAND royalty. Such injunctive relief could be granted only under the circumstance that a licenseeis unwilling to negotiate in good faith to reach a FRAND license or does notresponse to the SEP owner’s offer, which demand FRAND royalty determinedimpartially by a court or a third party.
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