지적재산권의 행사와 공정거래법 - 특허침해소송을 중심으로

The scope of application of the Monopoly Regulation and Fair Trade Law (“FTL”) to the exercise of rights protected under intellectual property law which, by its distinct nature, guarantees a monopoly for a certain amount of time, has been an issue of theoretical and practical controversy. Since 2009, the Fair Trade Commission (“FTC”) has identified abuse of intellectual property rights as a priority issue in enforcement of the FTL, and it has recently amended the relevant adjudication guidelines in line with such tendency. Compared to the pre-amended guidelines, the FTC’s newly-amended guidelines provide a more advanced standard of review by stipulating that the reasonableness standard will apply to cases and by providing detailed standards of proof according to types of conduct. For cases involving abuse of patent infringement action, the amended guidelines provide an objective standard of proof (i.e., proof that it is generally accepted and objectively clear that no patent infringement has occurred) and a subjective standard of proof (i.e., proof that the patent owner acknowledges that no patent infringement has occurred) that will trigger the application of the FTL. Especially at issue is whether a patent owner who files a patent infringement action in which the patent is later invalidated can be subject to a penalty as having violated the FTL. Specifically, the question is whether satisfaction of the above objective standard is sufficient or whether the subjective standard must also be met in order for the act of filing a patent infringement action to constitute a FTL violation. Under a dual system in which the validity of a patent could not be determined in an infringement action but could be separately adjudicated in an invalidation action, exercising one’s intellectual property rights by filing a patent infringement action in which the patent is clearly invalid is unjust and thus disallowed based on the legal principle of misuse of rights. In other words, meeting the above objective standard of proof is sufficient to deny protection under intellectual property rights. However, to take this a step further and prosecute such a case as a violation of antitrust law, the subjective standard of proof will also have to be met. Thus, in order for such a case to constitute a FTL violation, there must be additional proof that the patent owner filed the infringement action with full knowledge that the patent would be invalidated. If proof that a patent is objectively invalid is sufficient to constitute an antitrust violation, this would have the unjust effect of suppressing one of the fundamental rights protected under intellectual property law: the right to file an infringement action.