표준필수기술 선정절차에서 기만적 FRAND 확약을 제출한 특허권자의 권리실행 제한에 관한 연구

In the current economic circumstance, the interoperability among products and network effect play an important role for business and consumers. In this situation, standards can make products more valuable to consumers because of interoperability among products following the same standard. They, thus, can widen consumer choice and increase social efficiency and have been considered as one of the important instruments leading the modern economy to more efficient. However, it is reported that a standard could make innovation retarded by requiring significant additional costs to switch to alternative standard after the standard has been adopted. To prevent those situations, where lock-in users are exploited by IP proprietors, SSOs usually require the candidates to submit the FRAND commitment in the process of fixing essential technologies for performing standards. Unfortunately, such FRAND rules are abstract and ambiguous,and so can be avoided, which enables the SSO member owning the essential patents to exclude substitute technologies and dominate a relevant market of the essential technology incorporated the standard. In this situation, the SSO member’s fraud behaviors violating FRAND commitment should be condemned as exclusionary anticompetitive behavior and, thus, establish the infringement of antitrust law. However,in reality, because Korean antitrust law regulating the abuse of market dominating business demands the market dominant position of fraud behaviors in standardization, controlling their FRAND violation would be a limited methods comparing with those in the U.S..