산업표준의 포획에 대한 구제수단

다국어 초록 (Multilingual Abstract)

A number of remedies may apply when patents on the subject matter of industry standards conflict with the full achievement of the purposes of those standards. Several nonpatent law remedies were applied in earlier cases of standards capture, including antitrust and contract-based remedies (fraud, equitable estoppel, and implied license). But These remedies have inherent limitations. So the application of the patent law-derived remedies of mandatory disclosure, compulsory licensing, and patent misuse-based nonenforcement to target certain cases of standards abuse by patent owners is to be considered. The sensitivity of the patent misuse doctrine to the public policy makes the misuse doctrine a viable and important tool to remedy abusive standards capture by patent owners beyond the marketplace impact-focus of antitrust analysis. In the case of a technology standard promulgated by industry, the key inquiry should be whether the patentee disclosed the existence of its patent or patent application to the standards-setting body while that body had an opportunity to select an alternative, nonproprietary standard. If the patentee's nondisclosure of its intellectual property rights to the standards- setting body was intentional, Courts should refuse to enforce the patent altogether under the patent misuse doctrine, thus depriving the patentee of any remedy, injunctive or monetary, for use of the patented invention. And compulsory licensing should be imposed if the patent owner refuses to license all users of the standard.

목차 (Table of Contents)

• I. 서론
• II. 특허법외의 구제수단
• 1. 반트러스트법의 적용
• 2. 기망행위
• 3. 형평법상의 금반언의 원칙
• 4. 공용수용
• III. 특허법상의 구제수단
• 1. 특허권의 비공개에 대한 제재로서의 강제실시허락
• 2. 특허권 남용
• IV. 결론
• 참고문헌
• Abstract

참고문헌 (Reference)

1 "행정법원론(하)" 1999

2 "지적재산권과 표준화의 관계" (60) : 200.7

3 "산업표준제정과 특허권 및 반독점법적 고찰" (51) : 1998

4 "기술표준과 특허권 문제" (59) : 2000.3

5 "Unilateral Refusals To Sell or License Intellectual Property and The Antitrust Duty to Deal" 1999

6 "The Tension Must Break: The Irreconcilable Interplay Between Antitrust, Defenses to Infringement and Protection of Standardized Software Development Tools" 1999

7 "The Impact of the 1988 Patent Misuse Reform Act and Noerr-Pennington Doctrine on Misuse Defenses and Antitrust Counterclaims" 1988-89

8 "Reflections on Current Legislation Affecting Patent Misuse" 70-793, 1988

9 "Patent Misuse Through The Capture Of Industry Standers" 2002

10 "Dilettante Affair : Rethinking the Experimental Use Exception to Patent Infringement for Biomedical Research Tools" 2001

11 "As Standards Proliferate, So Too a Rise in Defendants Asserting 'Standards Abuse'" June2001

12 "Antitrust and the Internet Standardization Problem" 1996

13 "Anticircumvention Misuse" 2003