표준특허에 근거한 권리행사의 한계 - 침해금지청구권과 손해배상청구권을 중심으로 -

In the perspective of social spread and sharing of innovative technologies, injunction and damage claim due to standard essential patent (“SEP”) infringement should be limited in a certain range. This is because, in the case of SEP, for diffusion and utilization through commercial deployment of technologies, patentee’s exclusive right to work a patented invention cannot be guaranteed, unlike non-SEP. There are conflicting theories on whether SEP holder’s injunction claim can be granted or not. However, given recent domestic and foreign cases, it seems many courts form some consensus it is needed to limit SEP holder’s right compared to non-SEP holder’s, and therefore they are reluctant to grant SEP holder’s injunction claim. Generally, there is no reason to interpret SEP holder’s injunction claim should not be granted just because there was FRAND commitment. However, it would be fair to construct SEP-based injunction claim not allowed to be granted in principle because of essential characteristic of standard aimed at social spread and sharing of technologies. Meanwhile, in the case of SEP, patentee’s exclusive right to work a patented invention cannot be credited and others will work it surely, therefore lost-profits damages may not be awarded to SEP holders and only royalty damages may be always awarded. In this regard, to calculate royalty damages for SEP infringement, some U.S. courts began to adapt and modify Georgia-Pacific factors which have been considered to determine reasonable royalty in traditional patent infringement cases. It seems these U.S. cases can serve as good references. But, in calculating royalty damages for SEP infringement, followings should be especially kept in mind. Sufficient compensation to SEP holders is important in the stand of motivation for innovation to accomplish the aim and purpose of standard system and it should not happen competitors hesitate to adopt a standard due to patent hold-up and royalty stacking.