Grantback 조항의 유효성

The Grantback Clause is one of patent licensing tools by which the licensor of a patent secure his future control of improvement patent. It raises some concerns on the patent misuse and antitrust. I exam the patent misuse issues under patent law and antitrust issues under antitrust law to the grantback clause in licensing agreement. These two issues, patent misuse and antitrust violation should be separated. The patent misuse is not usually regarded as antitrust violation. To be an antitrust violation, some adverse affect to competition or market power should be proved. Any validity concern has not been raised in Korea, the cases and debates in the U.S. have been reviewed. A firm definition of grantback clause is not yet established. Thus, discussions would not clearly define problems and conclusions. The non-exclusive granting back to licensor's use of licensee improvement patents generally are not illegal per se and not objectionable. The exclusive grantbacks, which grant licensor sole rights to licensee improvements by assignment, may be illegal by establishing market control. The accumulation of patent by accumulation of patents of several licensees which provide the original patentee the control of industry would be illegal more seriously.