특허권 남용에 대한 시장지배적 지위남용행위로서 규제 가능성 검토

A patentee has the exclusive right, and a use of the right will become the object of protection in the Patent Act. But if the use of patents belongs to the misuse, Patent Act will not protect the use of patents and will be applied the Monopoly Regulation and Fair Trad Act(hereafter MRFTA) will be applied to the use of patents. At the process of the application it is decisive to review the legitimacy of the use of patents, and the review is legally based on the clause 59 in MRFTA, which stipulates that “The provisions of this Act does not apply to a legitimate exercise of rights under the Copyright Act, the Patent Act, the Utility Models Act, the Design Act, or the Trademark Act.” The review of the legitimacy of use of patents will be made by the two criterions, patent policy and competition policy. If the conduct of a patentee is decided as the misuse of patents, MRFTA will be applied to the conduct, and it should be considered whether the conduct corresponds to the breach of the regulations of the abuse of market dominant power. As the abuse of the market dominant power is considered from the two perspective, exploitative abuse and exclusive abuse, the decision on the abuse of patents shall be based on the two criterions. The standard essential patent must be specially considered in two types of review.