특허권행사와 공정거래행위간의 합리적 이익균형

The relationship between intellectual property (IP) and disciplines regulating competition has attracted growing attention, particularly as a result of the expansion and strengthening of IP protection at the global scale. This study provides detailed information on how these two areas impact each other. It examines the nature and interface of the intellectual property and competition laws. Intellectual property rights (IPRs) are legal rights granted to creators and owners of works that are results of human intellectual creativity. They include copyrights, patents, trademarks, industrial designs, and other items. They give their owners the right to exclude others from access to or the use of protected subject matter for a limited period of time. This also gives them the subsequent right to license others to exploit the innovation when they themselves are unable to engage in large commercial exploitation or for other reasons. But this legal monopoly may lead to market power and even monopoly as defined under competition law. Competition law, such as antitrust law, prevents artificial entry barriers and aims to remove monopolisation of the production processes by encouraging entrance into industries by new players. IPRs and competition are normally regarded as areas with conflicting objectives. The former promotes anti-competitive conduct by granting 'limited monopoly', while the later protects competition by sanctioning anti-competitive activities. In other words, competition law is concerned with abuse of monopoly and other related restrictive trade practices while Intellectual Property Rights aim at rewarding creative, inventive and/or innovative products or processes by conferring the originator with exclusive rights to use or commercialize the creation or invention. Long viewed as in conflict, today's antitrust practitioners, courts, and competition authority now generally recognize that competition and intellectual property laws are complementary, as they both seek to promote consumer welfare by increasing competition and innovation. The competition and intellectual property laws are complementary to the extent that they both promote competition over the long term, however the two regimes are sometimes at odds in the short term. Intellectual property rights for instance, can be misused due to abuse of IPR rules. The provisions 59 of the Monopoly Regulation and Fair Trade Act regulates that this Act shall not apply to any act which is deemed as a justifiable exercise of the right under the Copyright Act, the Patent Act, the Utility Model Act, the Design Protection Act or the Trademark Act. Although putting exemption clauses in competition laws to cater for IPRs is not noble idea, the exemption should ensure that it leaves room for competition authorities to carefully implement a rule of reason approach, on a case by case basis, to ensure that the innovation objective, which is the basis for IPRs, does not result in practices that are in violation to the competition laws. For this purpose, the Fair Trade Commission recently draws up the Guidelines for the prevention of abuse of patent rights. There are several approaches that have been adopted to prevent IPRs abuse, particularly concerning patent rights: compulsory licensing, patent pools etc. Innovation has always been a cause in a growing economy resulting in more innovation. The common objective of both laws is to promote innovation which would lead to the economic development of a country. For this the competition authorities need to ensure that co-existence of competition policy and IP laws since a balance between both laws would result in an economic as well as consumer welfare.