표준필수특허권자의 ‘하위 사업자’에 대한 FRAND 위반 행위의 규제

In developing and setting standards, SSOs (Standard Setting Organizations) are required to incorporate very limited specific proprietary technologies(patent) into the standard essential patent technology groups (hereinafter “SEP”) with view to remove duplicated license fees and downsize royalties. As a result of the standard setting process, SEP proprietors could own the monopoly position in each indispensable standard technology market. When the standard becomes widely used, the holders of SEPs could exercise the monopoly power to demand more than the value of their specific patented technologies. In this regards, the FRAND commitment has played the important role to prevent the essential IP owner’s exploiting the users of the standard technologies after a standard setting process is completed. Each FRAND violation practice itself, however, could not easily establish the antitrust injury if there is no exclusion of rivals. Under the traditional view of antitrust law, because the patent holders are in the upstream market, their raising cost of the licensee in downstream market has not been the anticompetitive concerns, but the unfair problems, on which antitrust law could not be invoked based. This essay, however, insists that the breach of FRAND promise should be considered as one of anticompetitive practices. The result of each breaching FRAND commitments consists of anticompetitive harms because it increases the price of standard conforming end products and decreases the consumer choices, which could not arise if the SEP owners keeps FRAND commitments and competition rules of standardization.