역지불합의에 대한 경쟁법적 규율 : 우리나라와 미국 판례의 비교 분석을 중심으로

‘Reverse payments’ occur when a patentee and a patent infringement defendant settle an infringement litigation with an arrangement under which the patentee pays the alleged infringer to stay out of the market for the period of time covered by the settlement. How to treat reverse payments under the competition laws depends on the policy choice between the protection of patent rights and the protection of competition. The Supreme Court of Korea established a fundamental principle in the treatment of reverse payments under the Monopoly Regulation and Fair Trade Act(“MRFTA”), by its decision of Feb. 27, 2014 in the Donga-GSK case. According to the ruling, even reverse payments incurring anti-competitive effects within the patents’ potential exclusivity shall not be automatically exempted from the application of the MRFTA. The exemption occurs only when the synthesized consideration of two policies of patent and competition in each case recognizes the act as a justifiable exercise of patent rights. The ruling was held in the context where the U.S. Supreme Court took the position prioritizing the protection of competition over the protection of patent rights, overthrowing the so-called ‘scope test’. Although the Supreme Courts’ rulings in Korea and the U.S. share the same policy direction, the application of the MRFTA to the reverse payment cases involves unique features and presents challeges reflecting Korea’s legal structure and the reality of its pharmaceutical industry, namely: first, anti-competitiveness is considered repetitively in article 59 and in article 19(1); second, how willingly the MRFTA should intervene when the anti-competitiveness of reverse payments occur within the scope of patents’ exclusivity, and how it should be adapted to the reality of Korea’s pharmaceutical industry; and third, the influence of strong and complex regulatory schemes on prices of pharmaceutical products intertwines with the impact of the concerned agreements.