표준 특허에 대한 국제재판관할의 문제 - 영국의 Unwired Planet 판결을 중심으로 -

Many Standard setting organization provide any right holder of IPRs needs to declare FRAND commitment prior to adoption of standard in relation to the standard-essential patents (SEPs) including patent fight and patent application. The laws on the nature and the scope of the FRAND commitment have been decided by the United Kingdom Supreme Court in its decision of Unwired Planet v Huawei and ZTE for the first time among the highest courts of the industrialized economy in August 2020. Currently, no binding international rules are available governing jurisdiction in transnational intellectual disputes. The UKSC decision spotlighted the possibilities of forum shopping for SEP/FRAND litigation by finding courts in Guangdong, China inappropriate forum for deciding, and indicating that the UK court can adjudicate the royalty rate of world-wide patent portfolio. The history of international efforts to set rules of deciding jurisdiction in transnational litigation, including the failed negotiation for the Hague Convention on jurisdiction, recognition and enforcement of foreign judgement in 2005 indicates that we need more time and patience before we can agree on rules of jurisdiction for transnational disputes. For intellectual property issues, a few academic projects have suggested principles for jurisdiction in transnational disputes, including the ALI Principles and Max Plank Group’s CLIP Principles. Applying the Principles on lis pendens to the fact pattern of Unwired Planet case would result in cases in other states could be consolidated in an English court. Applying MPI-CLIP to the same fact pattern, however, would result in expanding jurisdiction of the court where the parent company of implementers/infringers has habitual residence, which is China in the subject case, China. This result would make the MPI-CLIP not easy to be adopted states out of EC/EFTA.