FRAND 확약에 위반되는 실시료에 대한 경쟁법상의 규제

Standardization is beneficial for its contribution to promoting consumer welfare by providing interoperability between different products. Yet, it is also true that it gives rise to antitrust concerns over the formation and reinforcement of market dominant power by proprietors of Standard-Essential Patent (SEP), which may lead to patent hold-up or royalty stacking. As a means to address these concerns associated with standardization, most Standard Setting Organizations (SSOs) request SEP-holders to commit to licensing their SEPs on “fair, reasonable, and nondiscriminatory” terms, namely, to making FRAND commitment. Problems have emerged as some of these FRAND-encumbered SEP-proprietors, after the standardization, tend to subsequently demand apparently unreasonable royalty rates contrary to their FRAND commitment. It is reasonable to deem that an SEP-holder’s demand for royalty rates beyond FRAND terms in violation of FRAND commitment is subject to regulation under competition law. This is because such an act not only constitutes a mere breach of contract but also obstructs the spread of standardization and materializes the risk that standardization might undermine competitive market order. It appears that, thanks to the body of economic research, the respective positions of EU and U.S. competition authorities, and the latest U.S. federal court precedents including the Microsoft v. Motorola case, a certain level of consensus is being reached on the major principles of determining FRAND royalty rates grounded in the rationale behind FRAND commitment. Notwithstanding some disparities in methodological details, this author is hopeful that further accumulation of case law may well contribute to further developing an objective, reasonable set of standards for determining FRAND royalty rates. Debate continues over whether Article 3-2(1)1 of the Monopoly Regulation and Fair Trade Act of Korea on unreasonable pricing may be applicable to SEP-holder’s demand for royalty rates in excess of FRAND terms. It is this author’s view that, from the perspective of statutory construction, it should be possible to apply the said provision. This article specifically examines the factors to be considered in applying the said provision to royalty beyond FRAND terms, by inter alia utilizing the standard for determining FRAND royalty rates. This article also examines whether other provisions, such as Article 3-2(1)3 on unreasonable business interference and/or subparagraph 5 of the same Article on unreasonable harm to consumer interest, may be applicable to royalty beyond FRAND terms.