표준설정 과정에서 특허공개의무 위반과 특허위협(Hold-up)에 대한 경쟁법의 접근

Abstract

As industry standards become more important due to its intrinsic efficiency, opportunistic behavior to take advantage of becoming a standard is increasing, too. Most standard setting organizations(SSO) adopt IPR policies to require participants to disclose proprietary candidate patents beforehand and to commit FRAND(Fair, Reasonable and Non-Discriminatory) terms of license. However, there have emerged hold-up cases not to open (pending) patent rights during the standard setting process and ask excessive licensing fees after industry is locked-in to the standard. Traditional solution is to find some extreme conducts to be misuse of patent rights and/or unfair trade practices. The result can be such as to deny enforcement of the patent between the parties. When some conducts are found to undermine consumer welfare and social efficiency associated to standard setting, however, such solutions by patent laws focusing on the enforceability of patent rights and/or contractual aspects become short of sufficiency. After successful settlements in Dell(1996) and Unocal(2005), the Federal Trade Commission charged patent hold-up conducts by Rambus to violate the Section 5 of the FTC Act and Section 2 of the Sherman Act. However in 2008, the Federal D.C. Circuit Court vacated the FTC order for the reasons that the FTC failed to satisfy burden of proof for a monopolization, i.e. anti-competitive effects and causation. Another problem was about the vague disclosure rule by a SSO. While the hurdles required for monopolization findings in Rambus were merely no more than traditional, however, the FTC concentrated on the price increase effect caused by hold-up behavior and correct them, even beyond the orthodox antitrust principles. While not totally denying such a demand noticed by the FTC, the author argues that competition laws should concentrate on anti-competitive effects by market dominant players as shown in the US federal courts' decisions. Legal principles of patent and contract should be basic and starting grounds to cure problems and antitrust violations should be triggered only by findings of exclusionary effects and causation flowing out of questioned conducts. By such differentiations between tools of patent laws and competition laws, efficiencies associated with standard setting would be realized without excessive intervention by competition authorities, thereby inducing dynamic competition.