역지불합의 관련 판결평석 (대법원 2014. 2. 27. 선고 2012두24498) = A STUDY OF PRECEDENT

다국어 초록 (Multilingual Abstract)

A new drug developer who owns pharmaceutical patent rights for such drug and a generic drug developer may settle disputes between them by the new drug developer``s payment of a certain amount of compensation to the generic drug developer and the generic drug developer``s commitment not to enter to the market for a certain period of time agreed and such settlement is called as Reverse payment settlement. In the U.S. in terms of Reverse payment settlement, ascertainment of exemption limits for application of Antitrust laws and judgment on illegitimacy of behavior (anti competitiveness) are synthetically made in one step analysis. In other words, to define the scope of exemption limits for application of the laws, the rule of reason will be applied and in a case that such application finds existence of any anti-competitiveness effects, application of the laws will not be exempted in such scope and the behavior in concern, as a anti-competitive (illegitimate) settlement, will be the violation of antitrust laws. In fact, the U.S. Federal Supreme Court has not acknowledged the exemption of application of Antitrust laws into Reverse payment settlement and requires the market to apply Antitrust laws directly but according to the rule of reason. However, Article 59 of the Korean Monopoly Regulation and Fair Trade Act (the Monopoly Regulation Act) defines This Act shall not apply to any act which is deemed the justifiable exercise of the right under the Copyright Act, the Patent Act, the Utility Model Act, the Design Protection Act or the Trademark Act. Therefore, under the Monopoly Regulation Act, two step analysis of application which is an application of Article 59 for consideration on exemption of application and an application of Article 19(1) for judgment on illegitimacy (unjustifiable anti- competitiveness) shall be applied. Although the Monopoly Regulation Act and the Korean Patent Act (the Patent Act) share the ultimate goal and have complementary characters, the difference is that the Patent Act intends to realize its goal by authorizing a privilege to monopolize a market but the Monopoly Regulation Act regulates such monopolization and encourages free competition for achieving its goal. If there is any inconsistency between applications of the both Acts, prioritization between them will be made based on legislative policies. Korean regulation system protects patent rights more than free competition with Article 59 of the Monopoly Regulation Act. Therefore, any anti-competitiveness behaviors which are within the scope of justifiable exercise of intellectual property rights will be the subject to exemption of the Monopoly Regulation Act application.