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Despite the positive role of patent and copyright to induce technology innovation, they could be used as the assets to exclude efficient competitors and make advantage beyond the statutory limitation. Because of the patent or copyright owner’s strategy to occupy related markets and exclude competitors, the competitor making business in the market could be filed as an alleged indirect infringer, inducing a consumer to avoid exclusive patent or copyright license. In the U.S., an infringer may invoke the defenses of IP misuse and unclean hands by showing that the IP proprietor has violated a specific legal norm in obtaining or enforcing its IP right. Placing limitations on the exercise of IP rights has generated several overlapping limiting theories that have been incorporated into various areas of IP law. The required legal standard may be embodied in general rules of fair competition, in antitrust policy or in the Patent Act and Copyright Act itself. Moreover, in IP infringement suits, if a defendant (an infringer) can defend itself easily by counterclaiming that the plaintiff (an IP proprietor) has violated the antitrust laws because the anticompetitive conduct by IP proprietor can be considered as one of the misuse types. However, some nations including Germany, Korea, and Japan adopting the continental law system have not considered the misuse doctrine based on IP law significantly. Their courts would be also reluctant to allow the defense by counterclaiming antitrust violation in IP infringement suits. These differences could cause inconsistency of IP protection among the nations despite the international treaty which makes IP protection among nations consistent has been made. For this reason, Korean courts are required to consider the necessity of allowing an alleged infringer to submit the IP proprietors’ antitrust violation defense in IP infringement cases.


Despite the positive role of patent and copyright to induce technology innovation, they could be used as the assets to exclude efficient competitors and make advantage beyond the statutory limitation. Because of the patent or copyright owner’s strategy to occupy related markets and exclude competitors, the competitor making business in the market could be filed as an alleged indirect infringer, inducing a consumer to avoid exclusive patent or copyright license. In the U.S., an infringer may invoke the defenses of IP misuse and unclean hands by showing that the IP proprietor has violated a specific legal norm in obtaining or enforcing its IP right. Placing limitations on the exercise of IP rights has generated several overlapping limiting theories that have been incorporated into various areas of IP law. The required legal standard may be embodied in general rules of fair competition, in antitrust policy or in the Patent Act and Copyright Act itself. Moreover, in IP infringement suits, if a defendant (an infringer) can defend itself easily by counterclaiming that the plaintiff (an IP proprietor) has violated the antitrust laws because the anticompetitive conduct by IP proprietor can be considered as one of the misuse types. However, some nations including Germany, Korea, and Japan adopting the continental law system have not considered the misuse doctrine based on IP law significantly. Their courts would be also reluctant to allow the defense by counterclaiming antitrust violation in IP infringement suits. These differences could cause inconsistency of IP protection among the nations despite the international treaty which makes IP protection among nations consistent has been made. For this reason, Korean courts are required to consider the necessity of allowing an alleged infringer to submit the IP proprietors’ antitrust violation defense in IP infringement cases.