표준필수특허 보유자의 금지청구권 행사와 시장지배적 지위 남용행위에 관한 EU 사례 분석

Seeking injunctions on the basis of a standard essential patents(SEPs) for which a commitment to license under FRAND conditions may constitute an abuse of dominance and have serious negative effects on competition. The SSO’s IPR’policies often require members to make FRAND commitment which is to license SEPs on fair, reasonable, and nondiscriminatory terms. The implementation of FRAND licensing policies, so widely adopted by SSOs operating in the ICT industry, seems to be at the root of all disputes. It is arguable that SSOs themselves should be doing more to refine and clarify their policies. The difficulties faced by some SSOs(especially ETSI - one of three standardization organizations recognized by the European Commission) in their recent attempts to discuss the use of injunctions with members, reveal that broad consensus is unlikely. The European Commission’s focus has shifted to the use of injunctions on the basis of FRAND-encumbered SEPs. The decisions of Motorola and Samsung cases clearly state that seeking an injunction against an unwilling licensee is objectively justified under Article 102 TFEU. All the specific circumstances of the case need to be take into account in order to establish whether the potential licensee is actually willing to enter into FRAND license. Motorola decision has the merit of having addressed anticompetitive concerns arising from the questionable application by German judges of the Orange Book case. However, in fact, it leaves unanswered the question of the compatibility of SEP based injunctions with Art. 102 TFEU in circumstances in which the alleged infringer does not make an offer like Apple’s second Orange book offer. On July, 2015, the ECJ issued a judgement that clarifies at which point the proprietor of a SEP violates TFEU by bringing an action for a prohibition injunction. The judgement provides important guidelines for the assessment of the duties of SEP holders and alleged infringers of their patents. The European Commission decisions in Motorola and Samsung and the CJEU’s preliminary ruling in the Huawei case provide useful guidance but have still several issues. In any future action, the Korea competition agency and court’s goals will be to protect the benefits of standard-setting while minimising any anti-competitive risks.