표준특허 FRAND 확약의 계약법적 효력

The complexity of standards in Information and Communication Technology (ICT) creates a tension between the need to reward the owners of Standard Essential Patents (SEPs) that may cover standard specifications and the need to make standards available to all for public use. In the last few years, this tension has crystallized into a difficult debate on the legal nature of the SEP(standard essential patent) owners’ FRAND commitments. Recourse to injunctions and monetary damages are legitimate remedies 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 commitment before issuing an injunction. While the exact conditions under which a license seeking party can avoid an injunction for the infringement of a FRAND-committed SEP vary amongst the jurisdictions and largely depend on the conduct of the parties leading to and during the negotiations as well as the content of the offers made by each party in the concrete case at hand, the various decisions are nevertheless increasingly consistent when it comes to evaluating parties’ behaviour in FRAND disputes under the rubric of good faith. As it comes to the activities by the antitrust agencies on both sides of the Atlantic, their assessment depends upon the assumption that the mere seeking of injunctive relief, without more, is itself anticompetitive. But this approach seems to contradict the general principle that the mere fact of exercising a legal right and asking for relief in a competent national court is typically not a competition law violation in and of itself. Contract law and Patent Law are possibilities if the SEP is encumbered by a FRAND obligation. In the United States and other common law countries, courts may grant injunctions in accordance with the principles of equity on such terms as the court deems reasonable. But in most continental European countries and other significant jurisdictions including Korea, there is no judicial discretion in relation to the grant of an injunction for infringement of an IPR. Other than in exceptional cases, injunctions follow as a matter of law or automatically after a finding of infringement. Therefor Contract Law may be the best solution in these countries. If the SEP is encumbered by a FRAND obligation, the court may read that obligation as conferring enforceable third-party rights to avoid injunctive relief upon payment of the FRAND royalty. Whether this is a reasonable interpretation of a given FRAND commitment will depend on the wording of that commitment and on the substantive law of the country by which the contract is to be interpreted. In this paper, I present my analysis of the possibilities that FRAND commitment could be seen as a binding contract for the benefit of third parties in the Korean legal perspective.