표준특허의 효과적인 관리방안- 표준제정기구의 역할을 중심으로 -

The primary objective of the Article is to achieve a good understanding of the relationship between standardization and patents, and provide recommendations on how essential patents should be selected and managed to establish an effective standard to spur natural innovations. The patent provides its holder with exclusive rights to prevent others from commercially exploiting the invention. This is the desirable incentive to invest in R&D, but causes negative effects on competition. Standards are open to the public to use freely and are vital for the diffusion of new technologies. Thus, “essential patents” included in a standard provide standard-setting organization (SSO) with a dilemma in that exclusive patent rights have become essential elements of a standard. In order to establish an effective standard, SSO must be aware of the following:(1) It is needed to encourage industry experts to participate in the SSO, because the lack of participation of experts results in a less-informed standards body and the adoption of an inadequate standard. (2)Standardizing on a patented technology is necessary when that technology is the best solution, because the extra effort in attempting to design around the patented technology may cause extensive inefficiencies. (3)Patent policies should define the scope of the intellectual property rights (IPRs) clearly. It should be determined whether the policies cover patents, trademarks and copyrights, whether they include both issued patents and applications pending, and whether they cover domestic patents and foreign patents. (4) Every essential patent should be included and declared. (5)Essential patents should be evaluated and adopted by their technical values and their importance to the standard rather than political behaviors by participants. (6)Patent policies and regulations should be enforceable and treated as contracts. (7) The FRAND conditions should be clearly defined. (8) The SSO should protect participants by defensive suspension against hold-up by non-participants. In addition, participating companies should recognize that participating in an SSO means that they assume legal obligations in accordance with patent policies and regulations. The government and courts also may help a SSO by suggesting IP guidelines or IPRs regulations.