특허주장주체(Patent Assertion Entities)와 독점규제

This article addresses the problems of the so-called patent trolls or patent assertion entities (PAEs) from the perspective of Korean antitrust law, the Monopoly Regulation and Fair Trade Act (MRA). The term of PAEs mostly indicate firms with a business model based primarily on purchasing patents and then attempting to generate revenue by asserting the intellectual property against manufacturers which are already practicing the patented technologies. It is reported that the U.S. Federal Trade Commission starts to investigate the effects of the business model of PAEs on innovation and competition. Unlike the United States, the business model of PAEs cannot be the object of antitrust examination under Korean antitrust law because a specific type of an action in the question must be identified to apply the MRA. For the purpose of Korean antitrust analysis, this article limits the problems of PAEs to practices concerning demanding letters and litigation strategies combined with deceptive manners used to monetize the patents, and shows that patent assertions with deceptive practices by PAEs can be prohibited either as abuse of dominant position under article 3-2 (1) (iii) [unreasonable hindrance to businesses] or as unfair trade practice under article 23 (1) (v) [unreasonable hindrance to businesses] of the MRA. This article also shows that the so-called ‘patent privateering’ (PP) can be prohibited as anti-competitive vertical merger under article 7 (1) (iv) of MRA, but it is not certain whether PP can be prohibited as non-price vertical concerted action under article 19 (1) of MRA.