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배타조건부 거래 유형으로서 SEP 다단계 기술실시 약정의 FRAND 확약 위반 및 경쟁제한 효과
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Publication Year
2018-05
Journal
경쟁법연구
Publisher
한국경쟁법학회
Citation
경쟁법연구, Vol.37, pp.148-187
Keyword
SEPSEP MisuseThe Refusal to License to SEP Part ProducersFirst Sale DoctrineMulti-level LicensingFRAND표준필수기술거래거절표준필수기술의 남용최초판매이론다단계실시약정FRAND
Abstract
Whether SEP(Standard Essential Patent) owners’ multi-level licensing practices affect competition order in SEP related markets and violate antitrust law has been debated with regard to the decision of KFTC in 2017 Qualcomm case. The multi-level licensing practice has been explained as that a patent proprietor could impose different post-sale restrictions in each distribution channel even after the patent products have already been retailed through a legal sale process. <br>This licensing practice includes a refusal to license to part manufacturers for making SEP parts, which are performing SEP method patents, and post-sale restrictions for the clients of the SEP components (the final product manufacturers). First, the refusal to license to SEP part producers should be a violation of FRAND commitments. Secondly, the post-sale restriction could not be allowed under the first-sale doctrine according to 2017 Impression decision by the Supreme Court of the United States. <br>For this reason, this licensing practice by SEP owners should not be allowed any more. Actually, the multi-level licensing practice increases the risk of patent infringement and decreases the possibility of using standard technologies freely. Regardless of violation of patent principle, antitrust law could be applied to prohibit this patent strategy because of its anti-competitive effect, like exclusion of competitors in the SEP component market and the price-increase of the final merchandises with standard technologies.
ISSN
1598-2335
Language
Kor
URI
https://aurora.ajou.ac.kr/handle/2018.oak/34798
DOI
https://doi.org/10.35770/jkcl.2018.37..148
Type
Article
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Oh, Seung Han오승한
Graduate School of Law School
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