유럽 내 표준필수특허권자의 침해금지청구권 행사에 대한 제한 - 유럽사법재판소의 화웨이 v. ZTE 판결을 중심으로

The European Court of Justice(ECJ) rendered ruling in Huawei v. ZTE on the enforcement of SEPs which are subject to a fair, reasonable and non-discriminatory(FRAND) Commitment. Before this case, in the Europe, there were 2 types of approach in performing injunction without infringing the TFEU art. 102. In the Orange book standard case, the German Fedral Court(BGH) held that seeking injunctive relief under SEPs against potential infringer results in an anti competitive abuse of SEP holder's dominant position only under the very narrow circumstances. The alledged infringer must make an unconditional and binding offer to license the patent and he or she must account for all past and ongoing acts practicing the patent at issue and pay to the patent owner or into escrow all sums. Therefore the infringer has the burden to his or her obligation for avoiding an injunction from the SEPs owner. The other approach is the EU commission. It took different approach in its decisions. In Samsung, the Commission noted the willingness of potential infringer defeats the injunction of SEPs owner. The willingness is the most important methods to be against the SEP owner. The ECJ held in Huawei v. ZTE that seeking an injunction against an infringer under the FRAND Committment is an abuse of SEP's owner's dominant position when both the SEP holder and an infringer fail to comply with the requirement in Huawei decision before issue an action. In the decision, there are steps which should be peformed by both parties; first, the alert of infringement of SEP by SEP holder and offering the license under the FRAND terms, the next, the infringer should respond it diligently in accordance with an recognized commercial practices in the field and in good faith. If he or she reject the offer of the SEP holder, he/she must submit an counter offer in written form promptly and then the SEP holder refuses it, he/she must pay appropriate royalty or security. If the parties fail to agree on what terms constitute FRAND, they can, by common agreement, request the decision of royalty to an independent third party. The ECJ decision gave a little substantive guidances on how to perform the injunctive relief without infringing the TFEI art. 102, at the same time, on how to claim the FRAND defense against seeking injunction by SEP holder. It found a middle ground between Orange book standard case and EU Commission' decision. However, the decision has many question unsolved. What is the legal features of FRAND commitment? Is it clear to do the steps of huawei decision? What is the standard of royalty under the FRAND terms? How to calculate the royalty? Still there are many questions opened and they will be solved in post-huawei cases and decisions of competition authorities in future. Furthermore the comparative study will help in striking the balance between the IP right and the fair competition in the SEP market.