특허·저작권 남용의 본질 및 근거와 독점규제법 위반행위와의 구분

Among the available IP protections, the most important protections are patent and copyright laws. However, because of their inherent nature of exclusion, patent and copyright could be misused to prevent the continuous innovation, which is the fundamental purpose of patent and copyright laws. The IP misuse doctrine has been devised to limit IP proprietors' exploiting exclusive rights to their appropriate scope, which has been based on the rights' internal inherent limits, that is the public policy of the intellectual property laws. The content and focus of this dissertation is patent and copyright misuse,excepting trademark misuse. According to the many misuse cases, the IP misuse doctrine could be defined as the IP proprietor's exercise of the IP beyond the limitation granted by IP law policy (so called 'the public policy'). In particular, the misuse conduct may include the activities violating antitrust law because IP misuse is broader than antitrust principle. For this reason, a patentee's conduct may constitute misuse without rising to the leve of an antitrust violation. However, some commentators have insisted that IP misuses include antitrust violations and IP proprietors' exploitation beyond patent and copyright policy under IP misuse doctrine. Unfortunately, their understanding is that the IP owner' antitrust violation should be the requirement for the IP misuse, which is a different misuse style distinguished from the IP misuse violation of the public policy of the IP Law. By this article, the misuse by IP misuse doctrine should embrace IP proprietors' antitrust violation sufficiently related to the IP and the type of IP exploitations beyond the physical or temporal scope of the public policy patent and copyright law grant. Therefore, without IP owner's antitrust violation, IP misuse could be constituted by the infringement of the IP policy.