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초록· 키워드
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The history of the intellectual property misuse doctrine makes clear that it has evolved from three related areas of public policy: the prevention of anticompetitive effects, protection of licensees from overreaching by intellectual property holders, and ensuring compliance with the purposed of the intellectual property laws.
Recent decisions of the Federal Circuit view the intellectual property misuse doctrine as designed primarily to prevent anticompetitive effects resulting from improper intellectual property licensing and largely ignore the equity and intellectual property law-based rationales that gave rise to the doctrine, while the Federal Circuit does not require conduct constituting intellectual property misuse to rise to the level of an antitrust violation, it does often look to antitrust law to supply at least general standards for determining when a practice should be considered misuse.
Debate about the misuse doctrine centers around two interrelated issues: (1) the conduct, if any, that should constitute misuse; and (2) the appropriate consequences of a misuse finding. Most criticism of the misuse doctrine involves the first issue and makes one or more of the following points. first, the case law may reflect outdated thinking about the market power that results from the exercise of intellectual property. Second, the doctrine, as applied on a per se basis, fails to take into account the procompetitive benefits of many licensing practices and thus covers practices that are competitively benign. Third, to the extent that the misuse doctrine embodies policies other than those inherent in the antitrust law, there are no consistent standards for determining what is or is not misuse; the resulting legal uncertainty may discourage some socially beneficial licensing activities.
The criticism that misuse doctrine is vague, uncertain, and even irrational as applied to certain conduct can be addressed by identifying the relevant po1icy concerns and more closely examining the behavior alleged to be misuse in light of such concerns. Intellectual property policy rather than competition policy should primarily determine the types of conduct that warrant a misuse remedy. Antitrust law is always available to redress those 'extensions' of intellectual property that cause competitive harm under the antitrust statutes. However, not all extensions that are undesirable from an intellectual property law standpoint are anticompetitive enough to wan-ant antitrust remedies; the misuse remedy should be applied in just such circumstances. Conversely, some practices that are anticompetitive may not be particularly troublesome as a matter of intellectual property policy; these practices should not be considered misuse.
The harshness and unpredictability of the misuse defense have been criticized over the years, but the doctrine need not be jettisoned in its entirety to meet criticisms. A more narrowly tailored doctrine could playa circumscribed but important role in achieving the balance between proprietary rights and access to material in the public domain mandated by the nation's intellectual property laws.
Recent decisions of the Federal Circuit view the intellectual property misuse doctrine as designed primarily to prevent anticompetitive effects resulting from improper intellectual property licensing and largely ignore the equity and intellectual property law-based rationales that gave rise to the doctrine, while the Federal Circuit does not require conduct constituting intellectual property misuse to rise to the level of an antitrust violation, it does often look to antitrust law to supply at least general standards for determining when a practice should be considered misuse.
Debate about the misuse doctrine centers around two interrelated issues: (1) the conduct, if any, that should constitute misuse; and (2) the appropriate consequences of a misuse finding. Most criticism of the misuse doctrine involves the first issue and makes one or more of the following points. first, the case law may reflect outdated thinking about the market power that results from the exercise of intellectual property. Second, the doctrine, as applied on a per se basis, fails to take into account the procompetitive benefits of many licensing practices and thus covers practices that are competitively benign. Third, to the extent that the misuse doctrine embodies policies other than those inherent in the antitrust law, there are no consistent standards for determining what is or is not misuse; the resulting legal uncertainty may discourage some socially beneficial licensing activities.
The criticism that misuse doctrine is vague, uncertain, and even irrational as applied to certain conduct can be addressed by identifying the relevant po1icy concerns and more closely examining the behavior alleged to be misuse in light of such concerns. Intellectual property policy rather than competition policy should primarily determine the types of conduct that warrant a misuse remedy. Antitrust law is always available to redress those 'extensions' of intellectual property that cause competitive harm under the antitrust statutes. However, not all extensions that are undesirable from an intellectual property law standpoint are anticompetitive enough to wan-ant antitrust remedies; the misuse remedy should be applied in just such circumstances. Conversely, some practices that are anticompetitive may not be particularly troublesome as a matter of intellectual property policy; these practices should not be considered misuse.
The harshness and unpredictability of the misuse defense have been criticized over the years, but the doctrine need not be jettisoned in its entirety to meet criticisms. A more narrowly tailored doctrine could playa circumscribed but important role in achieving the balance between proprietary rights and access to material in the public domain mandated by the nation's intellectual property laws.
목차
Ⅰ. 머리말
Ⅱ. 특허권 남용의 법리
Ⅲ. 저작권 남용의 법리
Ⅳ. 상표권 남용의 법리
Ⅴ. 지적재산권의 행사와 반트러스트법
Ⅵ. 개별 제한조항의 위법성
Ⅶ. 지적재산권의 남용에 관한 판례법의 쟁점
Ⅷ. 요약과 평가
참고문헌
Abstract
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