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Seung Han Oh

Date of Award


Author's School

School of Law

Degree Name

Doctor of Juridical Science (SJD)

Degree Type



The purpose of this dissertation, by clarifying the basic IP policies, is to define the requirements of the IP misuse doctrine, which is based on the ultimate purpose of IP law and policies, and distinguished from antitrust principles. Placing limitations on the exercise of IP rights has generated several overlapping limiting theories that have been incorporated into various areas of IP law. However, the requirements and applicability of the misuse doctrine and its relationship to antitrust law remain ambiguous in both patent and copyright law. This dissertation in chapter 2 illustrates three major IP policies. The policies are discussed to derive a detailed misuse standard that can be used to determine IP misuse: the reward policy granting sufficient profit to IP proprietors to incentivise them, the policy guaranteeing dissemination of information to store sufficient information to be used in further innovative activities, and the free-entry policy to allow the entry of third-party's follow-on innovations. Based on the discussion of IP policies, this dissertation will discuss the characteristics of IP misuse and the application of antitrust law to IP exploitations. In addition, after discussing the ultimate purpose of IP law and policies, this dissertation shows the limitation of the current misuse doctrine, thereby illustrating the necessity for a detailed misuse requirement based on IP policies in chapter 3. In chapter 4, this dissertation proposes the application of the distinction between per se rule and the rule of reason in the IP misuse test as in the Federal Circuit's decisions. However, both the per se rule and rule of reason test of IP misuse should adopt a more advanced method than those in traditional antitrust law. The content of the two tests will be composed of IP policies, not antitrust principles, as has been illuminated distinctively in this dissertation. First, per se misuse is derived from the IP policy of guaranteeing the dissemination of information. Practices preventing the public from using information in the public domain establish per se misuse. On the other hand, the IP rule of reason test is based on IP free-entry policy to protect the entry of follow-on innovations and achieve dynamic efficiency. IP practice affecting the freeentry policy will not always and evidently interrupt IP's ultimate purpose, which is why one should look more closely at the acts under the rule of reason.

Chair and Committee

Charles R. McManis, Supervising Professor; Dorsey D. Ellis, Examining Professor; Owen Haley, Examining Professor.

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