이 책은 지식재산권 분야에서 발생할 수 있는 공정거래법 관련문제를 검토하는 것을 목적으로 한다. 국민경제 전체의 이념에서 형성된 공정거래법의 운용은 지식재산권 제도로부터 기대되는 경쟁촉진 효과를 최대한 살리면서 지식재산 제도의 원취지를 일탈한 지식재산권 남용행위에 의해 경쟁에 부정적 영향이 없도록 함이 최선의 정책이 될 것이다.


차 례

제1장 지식재산권과 공정거래법 / 7
｜제1절｜ 지식재산권의 개념 및 공정거래법의 취지 ······························· 9
｜제2절｜ 각 법의 목적 ··········································································· 12
｜제3절｜ 지식재산권남용에 대한 공정거래법적 규제의 기초 ·············· 14
｜제4절｜ 지식재산권과 공정거래법의 관계 ·········································· 17

제2장 지식재산권 남용행위의 유형 / 19
｜제1절｜ 지식재산권 남용행위의 유형적 기초 ····································· 21
Ⅰ. 실시허락 ···················································································· 21
Ⅱ. 끼워팔기 ···················································································· 42
Ⅲ. 그랜트백(grant back) 조항 ······················································· 49
｜제2절｜ 특허풀 ···················································································· 51
Ⅰ. 특허풀의 실시형태 ···································································· 51
Ⅱ. 위법 행위 유형 ········································································· 51
Ⅲ. 외국의 원칙 및 판례 ·································································· 53
｜제3절｜ 표준필수특허 ········································································· 57
Ⅰ. 표준필수특허에 따른 권리 행사 ·············································· 57
Ⅱ. PAE에 의한 권리 행사 ····························································· 60
Ⅲ. 의약품 특허 분쟁의 역지불 ······················································ 62
Ⅳ. 특허권의 행사 ··········································································· 62
Ⅴ. 위법 행위 유형 ·········································································· 63
Ⅵ. 표준설정과 공정거래법 ····························································· 64
Ⅶ. 특허공개의무 위반 사례 ·························································· 68
Ⅷ. FRAND 조건 위반 사례 ― Qualcomm 사건 ··························· 72

제3장 지식재산권 남용행위의 위법성 판단 / 75
｜제1절｜ 기본 원칙 ··············································································· 77
｜제2절｜ 위법성 판단의 기초 ································································ 79
Ⅰ. 관련시장의 획정 ········································································ 79
Ⅱ. 경쟁제한효과 ············································································ 80
Ⅲ. 효율성 증대효과 ········································································ 82
Ⅳ. 권리남용 ···················································································· 84

제4장 지식재산권 남용행위의 규제 / 113
｜제1절｜ 규제의 필요성 ······································································ 115
｜제2절｜ 비교법적 고찰 ······································································ 117
Ⅰ. 미 국 ······················································································· 117
Ⅱ. EU ··························································································· 125
Ⅲ. 일 본 ······················································································· 126
Ⅳ. 중 국 ······················································································· 168
Ⅴ. 한 국 ······················································································· 206
｜제3절｜ 판례법적 고찰 ····································································· 226
Ⅰ. 국 외 ······················································································· 226
Ⅱ. 국 내 ····················································································· 268
｜제4절｜ 지식재산권 분쟁과 부당한 합의 ··········································· 272
Ⅰ. 부당한 합의와 경쟁관련성 ······················································ 272
Ⅱ. 위법 행위 유형 ········································································ 272
Ⅲ. 부당한 합의와 공동행위 ·························································· 274
｜제5절｜ 특허소송의 남용과 경쟁 ······················································· 277
Ⅰ. 특허소송과 권리보호 ······························································ 277
Ⅱ. 특허침해소송과 특허소송의 남용 ··········································· 278
Ⅲ. 남용의 방지 ············································································· 288

제5장 결 론 / 291

▨ 판례 색인 / 299


지 은 이 정 주 환

법학박사(고려대학교)
고려대학교 법학연구소 연구원/법제처 법제연구관
국립창원대학교 법학과 전임강사
단국대학교 사회과학대학 법학과 조교수
단국대학교 법학대학장/법정대학장/단국대학교 법학연구소장(현)
미국 워싱턴로스쿨 교환교수(교육부 프로그램)
중국 청도대학법학원 방문연구교수(한국연구재단 프로그램)
중국 연태대학법학원 객좌교수/중국 산동정법대학법학원 객좌교수
중국 산동대학법학원 겸직교수
사법시험위원/대한공인중개사협회 보상심사위원장
한국경영법률학회 회장/법과역사학회 회장(현)

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