Earticle

초록

영어

The refusal to grant a licence, which is the straightforward exercise of intellectual property rights, cannot in itself constitute an abusive conduct. However, under exceptional circumstances, it can amount to an abuse, which is prohibited by Article 82 of the EC Treaty. The European Courts have established the exceptional circumstances under which the refusal to license intellectual property rights constitutes an abuse of a dominant position. The exceptional circumstances are: (1) the product or technology in question must be indispensable to carrying on a particular business; (2) the refusal is such as to exclude all competition on a secondary market; (3) the refusal prevents the appearance of a new product for which there is a potential consumer demand; and (4) the refusal is not objectively justified. Even though European Courts have applied the principles of the exceptional circumstances to some cases, there are uncertainties in interpreting the exceptional circumstances because the meaning of new products or services is not clear and what constitutes the objective justification is ambiguous. As far as patents are concerned, care has to be paid in applying the exceptional circumstances. Patents are generally the outcome of considerable research and development of a private undertaking and are closely related to the incentives to invent and innovate. Unlike the copyright which subsisted in TV listings, patent rights are essential factors in technical innovation in that they encourage the economic entities to participate in the innovative activities by providing exclusive rights to patent owners. Unlike the brick structure in IMS, a patent is created from the risk taking effort of private undertakings and thus is privately owned property. It may be argued that uniform application of the exceptional circumstances to any sorts of intellectual property rights is not appropriate. Rather, it seems persuasive to argue that it is necessary to take into consideration the nature of the subject matters protected by intellectual property laws. As for patents, which are generally created by the considerable research and development of a private undertaking, the application of the exceptional circumstances should be restricted and, care should be taken in order not to punish the successful innovator by imposing improper duty.

목차

Ⅰ. 서론
 Ⅱ. 유럽조약 제82조의 원리
  1. 관련 시장
  2. 지배적 지위
  3. 남용 일반
  4. 유럽조약 제82조의 기타 조건
 Ⅲ. 지식재산권과 남용
  1. 개요
  2. 지식재산권의 행사와 남용
  3. 예외적인 상황의 법리
  4. 검토
 Ⅳ. 결론
 참고문헌
 ABSTRACT

키워드

라이선스 거절 지배적 지위의 남용 예외적인 상황 지식재산권 유럽조약 제82조 경쟁법 독점금지법 refusal to license abuse of a dominant position exceptional circumstances intellectual property Article 82 of the EC Treaty competition law antitrust law

저자

• 박재훈 [ Park, Jae-Hun | 특허심판원 심판관, 영국 법학 박사. ]

참고문헌

발행기관

간행물