다국적 기업의 특허권 라이선스 계약의 거래거절에 관한 공정거래법상 적용 문제의 검토

Abstract

Recently there have appeared critical media reports that Multinational Corporations brought about unfair situations and damage has occurred to smaller businesses by the abuse of dominant position in order to expand entering the domestic(Korean) market. In the United States many cases of the unilateral refusals of Multinational Corporations based on intellectual property rights including patent right have existed, but opinions of the federal Courts have not agreed with one another on whether the unilateral refusals of patent right license violating Sherman Act Article 2 come under the act of unfair monopoly. However, the European Union's Courts unlike the federal courts of the United States have the traits which they would allow the active involvement of the Competition Act on the basis of clear criteria relatively with respect to the unilateral refusals of a license of intellectual property right including patent right and the Guidelines of the European Union is also to establish specific criteria related and therefore I think it is necessary to refer to that specifically. In Japan, the standard is not yet established clearly in this regard but notable decisions of courts and the Fair Trade Commission are showing up. In Korea, decisions of courts are not yet showing up with respect to the the unilateral refusals of patent right license but the relevant legal principles will be able to be established in accordance with the existing cases of the general unilateral refusals. The Fair Trade Commission's Examination Guidelines on Improper Exercise of Intellectual Property Rights is also required to establish clear standards on determining violation of the unilateral refusals of patent right license. In Conclusion, I think that Korean courts and the Fair Trade Commission need to refer to the legal principles such as 'exceptional circumstances' determining violation from representative cases of the European Union with respect to Multinational Corporations' unilateral refusals of a license of intellectual property right including patent right and it is necessary that the standards determining the violation in the Monopoly Regulation and Fair Trade Act will be established in different levels depending on types of the unilateral refusals of patent right license, such as conditional refusals and pure refusals, etc.