지적재산권의 ‘정당한 행사’의 판단기준과 역지불 합의의 경쟁법상 취급

Both the intellectual property law and the competition law aim at promoting consumer welfare. Therefore the justification of the IP practice should be evaluate by means of competitive standard. The undertaking who produces the original drug with the relative patent and does not want competitors who make the generic drugs to enter the market set the reverse payment agreement with competitors. Through such agreement the undertaking prevents the competition of the market and can make use of monopoly power until the end of the patent. It hinder the free and fair competion of the market. Lubeck Case of the EU and Actavis judgement in the USA point out the anti-competitiveness of the reverse payment agreement. It should be regulated by the illegal cartel with the standard of rule of reason.