FRAND 확약 특허권자의 자발적 실시자에 대한 금지청구권의 행사와 독점규제법 위반 책임 = The Execution of Injunctive Relief Based on the FRAND-encumbered SEP for ‘Willing Licensee’ and its Responsibility under Antitrust Law

다국어 초록 (Multilingual Abstract)

Since standardization began to be considered as the tool to increase efficiency of interoperable products or services, such as telecommunication IT products, the problem of hold-up by market dominant standard essential patent (“SEP”) holders has been one of most important issues. Fair, Reasonable, and Non-discriminatory (“FRAND”) commitments has been devised as the method to resolve the problem. The role of the commitments, however, seems to be very limited because of patent proprietors` free violation of the FRAND promise. The SEP owner`s free hold-up leads to the increase of price for the products using standards and makes the standardization retarded seriously. For this reason, competition agencies in the world have tried to investigate whether the SEP patent owners` breach of the FRAND could establish the violation of antitrust law. In particular, recent debating issues are related to the possibility of injunctive relief for SEP holders subject to FRAND commitments and the request of injunctive relief by the SEP owners submitting FRAND commitments should be considered as the exclusionary practice, which establishes antitrust law violations. Actually, the competition agencies recently consider the pursuit of injunctive relief based on the FRAND-encumbered SEPs as a serious competitive concern. In this regard, this essay will review under what circumstances SEP proprietors` seeking injunctive relief should be allowed and should be punished as the acts restraining competition. This study will insist that based on the meaning of the FRAND, a SEP owner submitting FRAND commitments should not be allowed to seek an injunction against an actual or prospective willing licensees who promise to pay the FRAND royalty. Such injunctive relief could be granted only under the circumstance that a licensee is unwilling to negotiate in good faith to reach a FRAND license or does not response to the SEP owner`s offer, which demand FRAND royalty determined impartially by a court or a third party.

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