혁신을 위한 특허 제도로서 ‘특허권 남용 법리’ 연구 -미국의 논의와 사례를 중심으로-

In the United States, the misuse of patent rights is generally exercised by violating the Anti-trust Act or expanding patent rights beyond the scope granted by the Patent Act. In addition, the law of patent misuse functions as a reason for defense in patent litigation. Historically, the law of patent abuse in the United States has been discussed in relation to the Anti-trust Act, which has led to a debate on the relationship between patent misuse and violation of the Anti-trust Act. On the other hand, there is an opinion that the law of patent misuse is a means of achieving the purpose of patent policy and performs an independent function distinct from the Anti-trust law and policy, which mainly aims to protect competition in related markets. In Korea, there are discussions on the law of patent misuse and precedents that apply it. Looking at the theory, one is passive about the function of the law of patent misuse, and the other sees the exercise of patent rights contrary to the Anti-trust Act as misuse of patent rights. In any view, it is acknowledged that the law of patent misuse is actually used as a tool that gives the court room to judge the validity or invalidity of patent rights. However, these laws cannot be a panacea, and it is dangerous to actively use them. This is because it can be reduced to a means of justifying the arbitrary judgment of judges. Therefore, careful review should be supported when applying the law of patent misuse. In addition, the criteria for judging illegality under the Anti-trust Act are used in the application of the patent misuse law. In this case, not only the criteria for judging illegality under the Anti-trust Act such as competition restriction, but also the judgment on the promotion or spread of innovation should be considered.