공정거래법에 의한 지적재산권 남용 규제: 비판과 대안의 제시

The rigid regulatory enforcement of Antitrust Law alone would wither the intellectual property rights system itself and cause the contraction of innovation. Thus, the standard of undue exercise of intellectual property has to be used in the purpose of intellectual property law. In this regard, the author strongly believes that Antitrust Law should be applied to regulate 'IP Misuse'. However, in reality, the Fair Trade Commission's lack of expertise and manpower is predictable enough in the patent area of sharp conflict of technological ideologies. Therefore, the IP Misuse is bound to be a remedial relief in the enforcement of Antitrust Law. Many empirical studies of the economy warn that without competition, intellectual property rights would be strengthened excessively and rather slow the rate of innovation. The best innovation of intellectual property can be realized only when the protection of intellectual property is maintained proportionally spaced from the competition policy. Therefore, it is the author's view that Antitrust Law needs to regulate the misuse of intellectual property rights. Particularly industries related to intellectual property are changing so fast that urgent relief measures will be essential. It is because it usually takes months or years before the Fair Trade Commission investigates and takes corrective actions, and the court decides on the case. Thus, there are high concerns on effectiveness and time. In addition, market timing is an absolutely critical matter in intellectual property-related industries. Where a potential market entrant is discouraged to enter into the market due to a collective refusal to deal with a potential competitor to market, the market enterpriser would have no choice but to abandon the relevant business unless the refusal to deal is banned immediately. So, the resulting damage in the form of compensation for damages is hard to prove it in practice since there is lack of economic motives in the claim to increase the chance of monetary damages. In light of this problem, Antitrust Law should introduce 'private action for injunction under Antitrust Law' to allow the claim of those who are likely to be inflicted with injury or damage to the court to injunct the unlawful act. More over, Intellectual property rights are usually associated with the highly specialized area of the industrial sector and it is not easy for the Fair Trade Commission to recognize the violation of law. In other words, it is hard to find the best solution to promote competition. Accordingly, it is necessary to introduce the consent order to investigate and deliberate process of self-corrective measures proposed by enterprisers. When the competition authority recognizes the validity of the corrective measures, the competition authorities will close the case quickly without investigating the violation of law.