FRAND 확약 위반과 표준특허권 침해금지청구— 최근의 국제적 동향을 중심으로 —

Standard setting organizations (SSOs) often require SSO members, prior to adoption of a standard, to agree to license any standard- essential patents (SEPs) on “fair, reasonable, and nondiscriminatory” (FRAND) terms. This article has presented an overview of the law of contracts, patent remedies, and competition as they relate to the question of whether courts should enjoin the infringement of FRAND-encumbered SEPs. Recourse to to injunctive relief is a legitimate remedy for the infringement of a patent in all significant jurisdictions, irrespective of whether the patent is standard essential or not and irrespective of whether a FRAND-commitment has been given. But in nearly all jurisdictions that had to deal with SEP-cases so far, courts have been evaluating the compliance with FRAND before issuing an injunction. The determination of whether an injunction is to be granted or not is inherently fact-specific. At present, objections to injunctions based on the law of contract and of patent remedies have made more headway in the United States than in some other countries, Germany in particular. On the other hand, while the competition-law approach has met with some limited success in the United States and some defeats in Germany, this approach seems to enjoy only a limited prospect of success in future U.S. cases at the same time that Europe may be shifting to an approach more favorable to prospective licensees. In addition, as a normative matter I have argued that courts generally should deny injunctions to SEP owners and should award ongoing royalties instead.