경쟁법 관점에서의 반경쟁적 소송 남용에 대한 평가와 기준 -EU와 미국의 사례를 중심으로-|RISS 상세보기

다국어 초록 (Multilingual Abstract)

An anti-competitive litigation is abused legal process that affects the status of competition in the industry adversely. Although anti-competitive litigations are brought in many fields, the issue of such misused litigations has been actively discussed recently in intellectual property right cases. Under EU competition law, anti-competitive litigations in intellectual property right are classified as litigations with non-price predatory abuse of a dominant position. However, there are not many courts` decisions which evaluate anti-competitiveness in frivolous suits. Nonetheless, in a notable decision of ITT Promedia v. Commission in 1996, the EU Commission proposed “two-stage standard” influenced by jurisprudence of Antitrust law in the United States. Then, the EU General Court decided that litigations satisfying conditions in ITT Promedia could be abuse of the market-dominant position under (old) Art. 82 of EU (currently, Art. 102 of TFEU). Currently, the issue of anti-competitive litigations has been vigorously debated in relation to a problem whether competition law should be applied to abuse of intellectual property right in particular in pharmaceutical sector. For example, EU Commission pays attention to patent litigation strategies of pharmaceutical companies producing original drugs. In the decision of AstraZeneca - which was supported later by the General Court of European Union -, EU Commission judged that AstraZeneca`s litigation with respect to patent clearly showed anti-competitive litigation strategies designed to impede fair competition from pharmaceutical companies producing copied drugs. Although the investigation at the level of EU Commission started in the limited scope of pharmaceutical industry, it is expected that problems of litigations with respect to abusive intellectual property right could be an important competition law issue in other areas of cutting-edge industries as well. As examined in this Article, since patent litigations could be harmful to competition under certain circumstances, evaluation and judgment of the standard for such cases should be approached in a cautious way. Although the current two-stage standard derived from ITT Promedia provides with a starting reference point, more in-depth analysis with the work taking concrete shape for the standard is required. The theory in relation to abusive litigations in intellectual property right cases - if it is expanded beyond the current emphasis on price competition - would be expected to receive attention in countries with similar competition law system including Korea.

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참고문헌 (Reference)

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