지식재산권에 대한 실시료의 수준과 경쟁법의 역할

This paper presents a critical analysis of two provisions of the Guidelines on the Unfair Exercise of Intellectual Property Rights, recently amended by the Korea Fair Trade Commission to regulate the excessive royalty. First, Article III.1.A. (2), which prohibits an act of charging remarkably unreasonable level of royalty, has many problems, given that it is not only contradicts the purpose of the intellectual property law which aims to foster dynamic innovation, but there is no objective methodology to determine the appropriate level of royalty. Next, Article III.3.D., which regulates an act of charging unreasonable level of royalty for the patents included in technical standards, also presents various problems; It lacks prudent analysis of the impact on the competition by complicated variations emerging from the standardization process; It adopts FRAND terms as a judgment standard to determine illegality, but FRAND is not deemed appropriate legal base, and there is no objective and concrete methodology to determine the observance. As a result, this paper proposes an alternative, which is either to abolish these two provisions or to establish a new applicable standard which is concrete, clear and commonly acceptable.