지적재산권 라이센스의 배타적 조건에 대한 독점금지법의 위법성 판단 - 독점금지법의 동태적 효율성 분석을 중심으로

• 영문명: The determination of illegality for the exclusive licensing conditions of IP under antitrust law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 오승한(Seung-Han Oh)
• 간행물 정보: 『비교사법』比較私法 제13권 제1호, 741~788쪽, 전체 48쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.03.01

영문 초록

  This thesis will show how to analyze intellectual property (hereinafter "IP") proprietors" exclusive IP exercise under antitrust analysis, which is supposed to prevent the IP right causing anticompetitive effect in a relevant market from being enforced. Based on a previously published thesis showing the ultimate purpose of IP law by the concept of "dynamic efficiency", thereby identifying three major IP policies designed to achieve the purpose, this thesis is derived to illuminate the role of antitrust law to determine explosive IP exercise.
  Antitrust law hasbeen used as the legal limitation for the exploitative IP licensing practices because contract law would be reluctant to intervene in voluntary agreed legal terms despite their restrictive characteristics. However, appropriate limitation for applying antitrust law to IP exercise has been discussed. Considering the independent purpose and policies of IP law, both bodies of laws are understood to partially overlap with each other, but each law has own itsdistinctive purpose and policies; while antitrust law focuses on allocative efficiency, IP law emphasizes dynamic efficiency. For this reason, allowing antitrust law to be applied to IP restrictive practices may still cause the interface problem between IP law and antitrust law. That interface problem should be circumvented in antitrust analysis by considering the necessity of granting private reward protected by the IP reward policy in analyzing the restraint"s effect against allocative efficiency.
  In conclusion, the legal IP excludability justified by IP policies may be the critical tool of IP laws to promote more competition and dynamic efficiency in the future despite its anticompetitive effect temporarily decreasing allocative efficiency in the present. Some IP restraints allowed by IP laws to incentivise innovative projects ultimately may contribute to increasing the possibility of potential competitors" entry into the innovation market because, otherwise, som e critical developm ents of technologies would not have been made and consumers could not have had any choices to benefit them. In antitrust analysis, such contribution could be determined as one of the important procompetitive effects for a justification to reverse the presumptive illegality of exclusive IP exercise by an IP proprietor. Therefore, the necessity of granting private reward protected by the IP reward policy should be considered in analyzing the restraint"s effect against allocative efficiency under antitrust law. If this is done, the conflict problem between IP law and antitrust law may be avoided appropriately.

목차

Ⅰ. 서론
Ⅱ. IP행사와 관련된 독점금지법 적용의 문제점
Ⅲ. 독점금지법의 분배적 효율성 보호와 IP 시장 보호의 역할
Ⅳ. IP법의 지속적 혁신정책에 대한 독점금지법의 평가
Ⅴ. 결론
[참고문헌]
【ABSTRACT】

키워드

동태적 효율성 지적재산권법의 목적 지적재산권법과 독점금지법 경쟁제한적 지적재산권 라이센스 조건 지적재산권 라이센스 정당한 지적재산권의 행사 Dynamic efficiency Interface between intellectual property law and antitrust law anticompetitive IP license