독점규제법과 지적재산권과의 관계에 관한 재고찰

• 영문명: Relationship between intellectual property law and anti - trust law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 손경한(Kyung-Han Sohn) 정진근(Jin-Keun Jeong)
• 간행물 정보: 『비교사법』비교사법 제12권 2호, 703~739쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

Due to the difference in purpose and function between the intellectual property law and anti-competition law, they have enjoyed harmonious and confrontational relationship over the years. The relationship between the two laws have been developed through case law in the U.S., which started with the per se rule in Nine No-No’s case in 1970 to the current rule of reason. These rules reserve the possibility of the anti-competition law being directly implemented into the intellectual property law, and we are now confronted with the danger of having the purpose and concept of intellectual property being obstructed. Due to this reason, many doctrines regarding the relationship between the intellectual property law and anti-competition law have been proposed in Germany, Japan and our country. In Korea, there are currently lot of different interpretation surrounding Article 59 of the Anti-Competition Act, with the doctrine which distinguishes between the substantial right and non-substantial right being popular opinion. However, the attitude of such popular opinion shows that the danger of anti-competition law being fully implemented to the intellectual property law system still exists. There are also criticisms that standard of determining exercise of justifiable rights is ambiguous, and that above theory only applies to license enforcement agreements. Therefore, to protect the purpose and the spirits of the intellectual property law whilst restricting the anti-commercial effect, feared by the anti-competition law, a duty, which restricts the exercising of rights under the intellectual property law must be endowed, and compulsorylicense, fair use doctrine and the doctrine of prohibition of misuse of rights (under civil law) must be applied. The anti-competition law should only have limited application on exceptional cases - misuse of market dominance status, unfair public behavior and unfair trade practices. These doctrines have greater potential, as they can be used in the newly developing technology co-operation field, such as technical standard and patent pool. In order to protect the public interest, technical standard must operate under the compulsory license system. Also, if a patent pool constitutes the technical standard, then the patent pool must also be operated under the compulsory license system, due to the same reason. As it can be seen above, intellectual property law has many other features than other property laws, which must be recognized. Firstly, the basic principles of civil law must apply to the intellectual property law, with anti-competition law being implemented as a supplementary law. Such application will promote competitive environment, and will also assist in achieving the purpose of the intellectual property law.

목차

Ⅰ. 서론

Ⅱ. 독점규제법과 지재권간 관계에 관한 외국의 입법례

Ⅲ. 지적재산권 적용제외에 관한 우리 독점규제법 규정

Ⅳ. 부당한 권리행사에 대한 지적재산권법상의 통제

Ⅴ. 기술표준과 특허권행사의 제한

Ⅵ. 특허풀의 지적재산권법에 의한 제한

Ⅶ. 결론

[참고문헌]

【ABSTRACT】