표준특허 관련 행위에 대한 공정거래법상 규제 가능성 검토
A Study on the Regulations of Essential Patent or Activity of Standards Setting Organization in Competition Law
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The standardizations of the technologies contribute to increase the welfare of consumers. But the adoption of the standard may lead to exclude the effective competition between technologies, and the owner of an intellectual property right essential to the technology may abuse the market power that may be gained through standardization. To avoid such a result, standards setting organization may have a important role to play in setting standards. A standards setting organization is any organization whose primary activities are developing, coordinating, or producing technical standards that are intended to address the needs of some relatively wide base of affected adopters. A standard setting organizations usually require patent holders to disclose their relevant intellectual property rights or to commit to license intellectual property on fair, reasonable and non-discriminatory(FRAND) terms. But it is not sufficient to mitigate the risks from the activity of patent holders, for example patent ambush or excessive royalties. So it is necessary to assess the acts of patent holders from a competition perspective. An effective standard setting process should take place in a non-discriminatory, open and transparent way to ensure competition on the merits and to allow consumers to benefit from technical development and innovation. It is possible to regulate these acts of patent holders on the basis of the abuse of market dominant power or unfair business practices in Fair Trade Act.
Abstract
The standardizations of the technologies contribute to increase the welfare of consumers. But the adoption of the standard may lead to exclude the effective competition between technologies, and the owner of an intellectual property right essential to the technology may abuse the market power that may be gained through standardization. To avoid such a result, standards setting organization may have a important role to play in setting standards. A standards setting organization is any organization whose primary activities are developing, coordinating, or producing technical standards that are intended to address the needs of some relatively wide base of affected adopters. A standard setting organizations usually require patent holders to disclose their relevant intellectual property rights or to commit to license intellectual property on fair, reasonable and non-discriminatory(FRAND) terms. But it is not sufficient to mitigate the risks from the activity of patent holders, for example patent ambush or excessive royalties. So it is necessary to assess the acts of patent holders from a competition perspective. An effective standard setting process should take place in a non-discriminatory, open and transparent way to ensure competition on the merits and to allow consumers to benefit from technical development and innovation. It is possible to regulate these acts of patent holders on the basis of the abuse of market dominant power or unfair business practices in Fair Trade Act.
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