경쟁법 관점에서의 반경쟁적 소송 남용에 대한 평가와 기준 - EU와 미국의 사례를 중심으로 -

An anti-competitive litigation is abused legal process that affects the status ofcompetition in the industry adversely. Although anti-competitive litigationsare brought in many fields, the issue of such misused litigations has beenactively discussed recently in intellectual property right cases. Under EU competition law, anti-competitive litigations in intellectual propertyright are classified as litigations with non-price predatory abuse of adominant position. However, there are not many courts’ decisions whichevaluate anti-competitiveness in frivolous suits. Nonetheless, in a notable decision of ITT Promedia v. Commission in 1996, theEU Commission proposed “two-stage standard” influenced by jurisprudenceof Antitrust law in the United States. Then, the EU General Court decidedthat litigations satisfying conditions in ITT Promedia could be abuse of themarket-dominant position under (old) Art. 82 of EU (currently, Art. 102 ofTFEU). Currently, the issue of anti-competitive litigations has been vigorously debatedin relation to a problem whether competition law should be applied to abuseof intellectual property right in particular in pharmaceutical sector. For example, EU Commission pays attention to patent litigation strategies ofpharmaceutical companies producing original drugs. In the decision ofAstraZeneca - which was supported later by the General Court of EuropeanUnion -, EU Commission judged that AstraZeneca’s litigation with respect topatent clearly showed anti-competitive litigation strategies designed to impedefair competition from pharmaceutical companies producing copied drugs. Although the investigation at the level of EU Commission started in the limited scope of pharmaceutical industry, it is expected that problems oflitigations with respect to abusive intellectual property right could be animportant competition law issue in other areas of cutting-edge industries aswell. As examined in this Article, since patent litigations could be harmful tocompetition under certain circumstances, evaluation and judgment of thestandard for such cases should be approached in a cautious way. Althoughthe current two-stage standard derived from ITT Promedia provides with astarting reference point, more in-depth analysis with the work takingconcrete shape for the standard is required. The theory in relation to abusivelitigations in intellectual property right cases - if it is expanded beyond thecurrent emphasis on price competition - would be expected to receiveattention in countries with similar competition law system including Korea.