지적재산권 라이센스 거절의 규율과 필수설비 판단기준

In principle Patent holder is not to be obliged to license without his or her own volition. Only in a very exceptional case Patent holder ist to be obliged to license even to his or her competitors. Issue here is that under what circumstances do the patent holders have to grant a license to 3rd parties. US is very negative to compel the patent holders to grant their license against their will. Rarely some players in telecommunication industry and other network industries where some provisions for compulsory allowance to use a certain network or device exist or physical network such as electricity network or roads are contemplated have to allow 3rd parties to use their network. In Europe, as we can see in Microsoft case by CFI in 2007 commission has positive tendency toward compulsory license. IMS Health rule and Microsoft rule will be dominant in the EU competition law practice. In Korea, 5 factors test has to be applied as a standard deciding a refusal to license constitutes a violation of Korean Antitrust law; that is (i) no way to design around that patent at issue, (ii) no substitutable patent, (iii) refusal to license of said patent hinders the competition in the secondary market, (iv) foreclosure of effective competition by such refusal to license, (v) no justification for that refusal to license.