earticle

영어

A number of remedies may apply when patents on the subject matter of industry standards conflict with the full achievement of the purposes of those standards. Several nonpatent law remedies were applied in earlier cases of standards capture, including antitrust and contract-based remedies (fraud, equitable estoppel, and implied license). But These remedies have inherent limitations. So the application of the patent law-derived remedies of mandatory disclosure, compulsory licensing, and patent misuse-based nonenforcement to target certain cases of standards abuse by patent owners is to be considered. The sensitivity of the patent misuse doctrine to the public policy makes the misuse doctrine a viable and important tool to remedy abusive standards capture by patent owners beyond the marketplace impact-focus of antitrust analysis. In the case of a technology standard promulgated by industry, the key inquiry should be whether the patentee disclosed the existence of its patent or patent application to the standards-setting body while that body had an opportunity to select an alternative, nonproprietary standard. If the patentee's nondisclosure of its intellectual property rights to the standards- setting body was intentional, Courts should refuse to enforce the patent altogether under the patent misuse doctrine, thus depriving the patentee of any remedy, injunctive or monetary, for use of the patented invention. And compulsory licensing should be imposed if the patent owner refuses to license all users of the standard.