특허법상 특허소진(최초판매의 원칙)과 경쟁정책 - Bowman v. Monsanto 사건의 반독점효과를 중심으로 -

On the issue of whether the scope of the patent’s right under the first sale doctrine includes the self-replicating technology, differing viewpoints have been taken among the U.S. Circuits and Supreme Court. Especially, the issue on whether the patent holder restricts the patented seed from restoring and replanting it. This article examines the court’s justifications and harms from its decision while taking the position that patent rights are limited to the extent of balancing the promotion of a competitive marketplace and granting incentives for the development of patent (Intellectual property). The article analyzed its position in the context of technologically innovative markets. The article first provides a background on the first sale doctrine under the patent law outside the context of antitrust law. Next, a study is made on the patent system of the genetically modified seed industry. This is done by first looking at the uniqueness of the biological patented articles. The relationship between the genetically modified seed industry and relevant industries is then made by looking at innovation and competition in the context of the patent system. From the perspective of high technology markets, studies have shown that innovation is generally driven more by competition than by patent rights. The author therefore suggests that the expansion of a patent holder’s right by creating the exception of the first sale doctrine should be reconsidered when evaluating the impact on market based on the self-replication technology. An alternative approach is proposed not for expending the patent holder’s right under the doctrine, but for considering the application of the contract law under dynamic competition and public interest. This alternative approach is then applied to the case law with the intention of reconciling the differing viewpoints of the U.S. Supreme Court and Federal Circuit Court in Bowman v. Monsanto to provide a clear line between circumstances where the patent holder has broad rights under the application by creating the exception of the doctrine. The article concludes that the court should not have extended the patent holder’s right. Instead, it should have sticked to applying the first sale doctrine. By doing so, antitrust scrutiny would have been conducted as the contract law is in effect. If the self-replicating patent is not protected by the exception of the doctrine, a patent holder will be scrutinized from an antitrust perspective where it engages in anti-competitive behavior under this balanced position. Therefore, this is a desirable way to balance both patent policy and competition policy in order to promote innovation and competition.