표준필수특허 관련 해외 판례와 대비한 우리 ‘삼성 대 애플’ 사건 판결의 재음미

In the Standard Essential Patents(SEPs), the FRAND declaration must balance the interests of the patent holder and the trust interests to be protected by the standard user or the standard practitioner. The ruling of the “Samsung vs. Apple” case declares that the exercise of the rights of patent holders against this ideology of the FRAND declaration can be judged as abuse of rights. In this regard, it can be said that the above ruling has increased the foreseeability to the parties in the field of SEPs, so it is highly likely to be established as a precedent ruling in the future. With regard to the legal basis of the restriction of exercise of rights (Right to Prohibit) based on SEPs, we can classify as follows when assessing the approach of Korean and foreign precedents. That is, ① the contract law approach and ② the competitive law approach, ③ the general principle of the civil law (Principle Of Good Faith and Principle of Abuse of Rights) and ④ the so-called 'comprehensive approach' that considers the purpose and ideology of the patent law in addition to the above ① to ③. It is evaluated that the lower court in Korea is considering the general principle of the civil law (Principle Of Good Faith and Principle of Abuse of Rights) as the main principle, reviewing the legal basis of restrictions on the right to prohibit, and then supplementing it with the competitive law approach. Finally, it can be considered that the purpose and ideology of patent law are being considered. In addition, in light of the negotiation process of the SEPs, it is very important for the negotiating party about the SEPs to analyze what the standard patent holder can judge as a willing licensor or an unwilling licensor. Also, it is significant for them to analyze what the standard practitioner can judge as a willing license or an unwilling licensee. These are because it allows the court to know what the criteria for judging abuse of rights or abuse of patent rights are. In this article, we examine the types and trends of global disputes in which patent holders of FRAND declared standard essential patents seek the exercise of rights such as right to prohibit or claim for damages due to infringement of patent rights against standard practitioners. In addition, we grasped on what legal basis the patent holder's exercise of rights is restricted. And then, in preparation for such comparative legal considerations, we attempted to reconsider the judgments of the “Samsung vs. Apple case” sentenced in 2012 by the court of the lower court and derive the implications.