Bangladesh Group Group and one other (Attorneys Yang Dai-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm KEL, Attorneys Seo-young et al., Counsel for the defendant-appellant)

August 23, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s corrective order and penalty surcharge payment order stated in the attached Form No. 2011-300 against the Plaintiffs on December 23, 2011 shall be revoked.

1. Details of the disposition;

The Defendant, as of December 23, 2011, pursuant to the Decision 2011-300, on April 17, 2000, provided economic benefits, such as joint domestic sales rights, domestic exclusive sales rights, and high-level cash incentives beyond ordinary practices, etc., of the Plaintiffs and East Asia Co., Ltd. (hereinafter referred to as “Dong Pharmacopoeia”), by investing them in East Asia, with “Sex”, and instead, suspended the production and sales of the reproduced medicine, which he developed in 1998 and sent out in 198, and did not develop the reproduction pledge of the same ingredients as Cho F or Kex, and further, it constitutes an act that unfairly restricts competition with the Plaintiff’s act related to the Plaintiff’s new drug and its distribution order (hereinafter referred to as “the Plaintiff’s act related to the Plaintiff’s new drug and its affiliated company”) on the ground that the Plaintiff’s act constitutes “the Plaintiff’s act related to the Plaintiff’s new drug and its affiliated company’s sales order” (hereinafter referred to as “the Fair Trade Act 19”).

[Ground of recognition] Facts without dispute, entry of Gap evidence No. 1, purport of whole pleadings

2. Whether the instant disposition is lawful

(a) Whether a patent is legitimate;

1) The plaintiffs' assertion

The agreement between a patentee and an infringer on the discontinuance of an infringement and a patentee’s withdrawal of a patent infringement lawsuit is a legitimate exercise of a patent right. The instant disposition is unlawful against Article 59 of the Fair Trade Act, inasmuch as the agreement between the Plaintiffs, as the patentee, entered into with East Asia, as the infringer, to discontinue the patent infringement lawsuit.

On the other hand, it is a reasonable business agreement that the foreign pharmaceutical manufacturers holding patent-related drugs agree not to deal with other drugs competing with the products instead of granting exclusive sales rights to the domestic pharmaceutical manufacturers with the domestic sales network, and it is a universal act that can frequently be seen in the transaction practice as well as reasonable business agreement. Therefore, it is not reasonable for the Plaintiffs to not deal with competing products while granting their sales rights to the patent-related drug, the patent-related drug, to prevent the Plaintiffs from handling competing products while granting their sales rights to the same drug.

(ii) the facts of recognition

A) The plaintiffs' patent acquisition and the display of "franc"

The plaintiffs are manufacturers of new medicine who manufacture and sell yeast, which are new substances that engage in porttopy in human body, for the first time in the world. On January 25, 1985, the plaintiffs filed an application for the Patent for the Patent for the Patent for the Manufacturing Method of Onnuri Seglon (On January 25, 1985, as a new substance that takes a porttopy, but the plaintiffs filed an application for the Patent for the Manufacturing Method under the Korean Patent Act at the time when they filed an application for the Patent for the Patent for the Ongylon in Korea (patent No. 1 omitted) and registered on August 8, 192 (patent No. 1 omitted), and the expiry date of the Patent for the above Patent for the Patent is January 25, 2005 (hereinafter referred to as the "Patent of this case"). The plaintiffs started to sell goods in Korea from January 196, 196 after obtaining the New Medicine License of the Korea Food and Drug Administration.

From 2001 to 199 to 2001, in the port area market of the port area in the Republic of Korea, the Chonland occupied the market share of 47.5 to 48.5%, and had the status as the sole monopoly in the port area market including the Onnuriglon ingredients.

B) Patent application and registration of the East Asia and the display of “Ondolon”

The East Asia filed an application for patent on July 16, 1997, and registered the patent (patent No. 2, 3 omitted) on May 29, 199, if two or more of the Onnuri royalty manufacturing methods different from that of the plaintiffs' On-the-art loan, which are different from that of the plaintiffs' on On-the-art loan. The East Asia developed the "On-the-counter loan," which is the permanent territory of the Republic of Korea, including on-the-art loan ingredients, in accordance with the above laws, and acquired a product manufacturing license from the Commissioner of the Korea Food and Drug Administration on July 9, 1998, and sold it in Korea from September of the same year.

C) Patent disputes and agreements between the Plaintiffs and the East Asia

(i)Patent Dispute

On March 2, 199, the Plaintiffs sent a warning indicating that the manufacture and sale of the East Asia drugs infringed their patents, and thus, sent it to the East Asia drugs with a view to urging the suspension of infringement. They denied the fact of infringement, and on March 18, 199 and May 21, 199, filed a motion to confirm the scope of patent infringement with the Korean Intellectual Property Office. Accordingly, the Plaintiffs filed a patent infringement lawsuit against the East Asia drugs with the Seoul District Court on October 13, 1999.

Shes Agreement

The plaintiffs and the East Asia concluded the letter of intent on December 17, 1999 while negotiating to conclude the dispute by compromise in the course of dispute, and entered into a settlement agreement with the Mediation Agreement on April 17, 200 and Bosch Rexroth, respectively.

㈎ 의향서의 체결

On December 17, 1999, the plaintiffs and the Eastern medicine (hereinafter referred to as the "PPP") exchanged a letter of credit with the effect that the plaintiffs discontinued the production and sale of the Dalon, where the drugs were released from the Republic of Korea on August 17, 1999, in lieu of granting the right to sell them domestically, and that the right to confirmation of the scope of rights and the withdrawal of the patent infringement lawsuit in progress are exchanged with the letter of credit, respectively, and the major contents are as follows:

1. The plaintiffs shall be entitled to exclusive supply and sale rights within the territory of the Republic of Korea. The plaintiffs shall be fully and finally agreed upon, taking into account the above rights, to set off the amount they shall be refunded to the ASEAN. 2. East Asia shall be entitled to supply and sale rights to the State or public hospitals of the Republic of Korea. 3. such as those listed in paragraphs 1 and 2 above, taking into account the rights granted by the plaintiffs to the ASEAN: (i) suspend the manufacture and sale of the Dadlon and Onnuri-containing content at or before the conclusion of the contract; (ii) suspend the manufacture and sale of the 5% of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the initial sales of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the initial sales of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of its initial sales and the 2nd.

㈏ 화해계약 및 각 공급계약의 체결

The Plaintiffs and East Asia concluded an additional negotiation based on the above letter of intent on April 17, 200, and concluded a compromise contract, “heats sales and supply contract,” “heats monopoly sales and supply contract,” and “the instant agreement” (hereinafter referred to as “the instant agreement by combining three contracts”).

The main contents of the compromise contract are ① the manufacture and sale of the multilateral products that East Asia has been entering into or before the date of entering into the contract, and they have been suspended for five years, and the trial to confirm the scope of a patent pending in the Intellectual Property Tribunal is withdrawn and no dispute or lawsuit is instituted against the plaintiffs' patent, and ② the plaintiffs were withdrawn from the patent infringement lawsuit pending in the Seoul District Court.

Each of the above supply contracts is a contract under which the plaintiffs grant to East Asia the right to sell Chop's national and public hospitals and the right to sell Mapex's monopoly. Among them, the part(s) and incentives referred to in the above letter(s) and incentives, and the part(s) of the pharmaceutical affairs of East Asia are as follows:

Professional (Hedling)

On April 17, 2000, the plaintiffs and East Asia entered into a compromise agreement with respect to patent-related matters on the Onnuri Seglon as of April 17, 200.

Incentives-Related Parts

In the event that the net sales volume of the ISK exceeds 80 per cent of the target sales volume stated in Appendix E, the Plaintiff GSK shall provide its sales agent with incentives for three (3) years from the first date of commencement. (i) 25 per cent (25%) of the total sales volume of the IE in the national and public hospital sector in the 1st year of the 2nd year of the 2nd year of the 3rd year of the 25 per cent (3) of the total sales volume of the IS medicine in the national and public hospital sector in the 3th year of the 3th year of the 7.6th year from the beginning date of the 3th year of the 3th year of the 3rd year of the 7.6th year of the total sales volume of the IS medicine in the national and public hospital sector in the 3rd year of the 3rd year of the 3rd year of the 1st year of the 3rd year of the 1st year of the 2nd year of the 3rd year of the 6th year of the 2nd year of the contract.

Paragraph 1 of the Pharmaceutical Drugs of East Asia

During the term of this Agreement, I shall not, directly or indirectly, carry out the same effective ingredients as those of the present product in the contract area as its affiliated company or/or through its affiliated company or/or subsidiary company, whether in advance, or engage in the registration, manufacture, sale or supply of, or participate in the product in the contract area with chemical leading or similar effective ingredients for the effective ingredients of the present product, or with the principal adaptation certificate and competitive product registration, manufacture, sale or supply of, or without the prior consent of the plaintiff GSK, of like or similar to, the present product in the contract area, or designed to, or in combination with, the other products to act as identical or similar to, or to act in competition with, the present product, or to act as its affiliated company or its affiliated company, or to act directly or indirectly as its affiliated company or representative in the manufacture, manufacture, import, sale or combination with any similar product, or to interfere with the sale of the present product. Bosch Rex 23,010>

·Renewal of each supply contract

Although the initial period of the instant agreement was five years, the Plaintiffs and the East Asian Medicine extended the period of the supply contract through a written renewal contract even after the expiry of the period of the instant agreement, and on April 17, 2000, the terms of the contract at the time of the instant agreement were maintained as they were in the renewal contract.

Since 2005, the status of the renewal of the operator and director contract

Terms of contract 2.17.17.17 and 2.17.7.7.7.7.7. 17. 20.7.7.7. 17. 20.7.7. 17.7. 20.7.17.7. 20.7.17. 1.7.7. 17. 1.7. 20.7. 17. 1.7. 1.7. 1.7. 17. 207. 1.7. 1.7. 2.7. 17. 207. 1. 1.7. 207. 1. 1.7. 17. 207. 1. 1.7. 17. 207. 207. 1. 7. 207. 1.

* The term “expact exclusive sales and supply contract” was renewed on December 20, 2005, except for the renewal of the contract. The contract was concluded on December 20, 2005 in the form of a new contract, but it was also made on December 20, 2005, but there was little difference between the contract renewal as of April 17, 200 and the contract renewal.

After the expiration of the contract period under the supply contract of Chosch Rexroth (in the case of Chosch Rexroth, after December 18, 2008, and after January 1, 2010, in the case of Bosch Rexroth), each supply contract has been implicitly renewed until October 19, 201, which is the date of the deliberation in this case.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 2-8, 11, 12, 18, 56, Eul evidence Nos. 1-3, 6, 8-11, 14-17, 19, 25, 31, and 35, part of Eul evidence No. 5, testimony of the non-party witness, and the purport of the whole pleadings

3) Determination

A) Article 59 of the Fair Trade Act provides that “The provisions of this Act shall not apply to any act deemed legitimate exercise of the right under the Copyright Act, the Patent Act, the Utility Model Act, the Design Protection Act or the Trademark Act” (Article 58 of the Fair Trade Act, which was applied at the time of the instant agreement, only provides for “exercise of the right” and Article 8631 of the former Fair Trade Act, which was amended by Act No. 8631 on August 3, 2007, included the phrase “justifiable exercise of the right,” but it does not apply only to the legitimate exercise of the right of intellectual property before the said amendment, so there is no difference in interpretation, regardless of the foregoing provision). Therefore, the Fair Trade Act shall apply where a legitimate exercise of a patent right is excluded from the application of the Fair Trade Act, but the exercise of a patent right is not justifiable. In light of the fact that Article 58 of the Fair Trade Act provides that “reasonable exercise of the right to exercise the right should be determined in accordance with the principle of the Patent Act, namely, it should be determined in accordance with the principle of the Fair Trade Act.

B) A patentee and an infringer (a person allegedly infringed a patent from a patentee) may agree on a dispute over whether a patent has been infringed (the resulting meaning is the same as the validity, in particular the scope, of the patent) through an agreement between the parties, in addition to the legal procedure, regarding patent infringement. Considering that (a) difficulty in prediction and failure of a patent arising from the technical nature of the patent litigation, other than the time or cost of the lawsuit, have a big impact on the legal status of the parties; (b) enormous damages of the patentee due to the prolongedness of the lawsuit; and (c) the possibility that the infringer would be granted the right to practice the patent without fear of patent infringement, an agreement between the parties to the patent dispute may be an efficient means to guarantee the rights of the patentee; and (d) it is favorable for the infringer. On the other hand, an unfair agreement between the patentee and the infringer may be deemed as restricting competition in the market by preventing entry of the competitor who did not infringe upon the patent right after the expiration of the patent right, insofar as it goes beyond the reasonable period of patent infringement or ex post facto to exercise the patent right.

However, in a case where (1) a patentee and a competitor agree to restrict competition in the relevant market even though the patent is invalid or it is apparent that a competitor is not an infringement on the patent; (2) a competitor does not place the relevant product at the market even after the expiration of the patent term; (3) a method invention prohibits research, manufacture, sale, etc. of the same product as the product produced by using the patent regardless of the method of manufacture; (4) a competitor does not intend to place the patent until the expiration of the patent term on the ground that a competitor does not have any infringement on the patent; and (5) a competitor’s exclusive right is extended even after the expiration of the patent term, and thus a competitor does not withdraw the product immediately from the market; and (3) a competitor’s exclusive right is extended as an unfair exercise of the patent right, barring any special circumstances.

C) Meanwhile, since a patent license is also included in the exercise of a patent, if various restrictions imposed by a patentee upon the licensee upon the licensee is restricted competition when a patent license is granted, the Fair Trade Act shall apply if the imposition of such conditions is not deemed a legitimate exercise of the patent.

D) In light of the following circumstances recognized based on the above facts and evidence, it is reasonable to view that the agreement of the plaintiffs in this case goes beyond the legitimate scope of exercise of patent rights and is subject to the Fair Trade Act (the plaintiffs asserted that this part of the agreement should be determined on the premise that a compromise contract and a respective supply contract are separate contracts, but it is reasonable to view that a compromise contract and a respective supply contract together constitute the agreement in this case as a single intention, as seen in paragraph (1) (d) (2) below, it is reasonable to view that the agreement

① First of all, the facts presented by the Defendant are insufficient to acknowledge the fact that the plaintiffs' patent in this case is invalid or that the patent in this case was not infringed on the patent in this case, and there is no other evidence to acknowledge it. Thus, the part of the agreement to recognize that the patent in this case was infringed on and prohibit the manufacture and sale of the loan in order to exclude the infringement cannot be deemed to have been exempted from the legitimate exercise of the patent in itself (Therefore, the above part of agreement is deemed to be an unfair exercise of the patent right, but the agreement in this case cannot be deemed to belong to the legitimate exercise of the patent in this case, so the above error does not affect the legitimacy of the disposition in this case).

However, the agreement with the plaintiffs exceeded the legitimate scope of the patent right as follows. (a) was prohibited from manufacturing, selling, etc. of Danlon from January 25, 2005 to April 17, 2005, which is the expiry date of the patent of this case, and such restriction continues until the date of the agreement renewal. (b) The patent of this case is not effective until the date of the decision of this case as to the production of Donlon in a different way as a patent. Nevertheless, the plaintiffs and Dondong medicine prohibit the production of Donlon by a different way from the method recognized in the above patent. Furthermore, the plaintiffs are prohibited from manufacturing, selling, etc. of the products that can be competing with the patent of this case. The plaintiffs and Dondong medicine are different from that of the patent of this case from the patent of this case from the patent of this case, and they are prohibited from manufacturing, selling, etc. of the products that are non-related with the patent of this case.

② Next, as to the prohibition of research and development, manufacture, etc. of competing products in entering into each supply contract, it is difficult to deem that the prohibition of handling competing products goes beyond the scope of patent rights, since the same method as the patent in the instant case is in conflict with the Plaintiffs’ patent right to manufacture Onnuri in the same manner as the patent in the instant case.

However, limiting the research and development, manufacture, and sale of the same product that can be used by the plaintiffs in excess of this limit is beyond the scope of the plaintiffs' patent rights and cannot be seen as the exercise of patent rights. This is merely a general contract of supply contract, and thus, the Fair Trade Act applies to the above restriction condition. The necessity, rationality, etc. of the above restriction condition claimed by the plaintiffs are only matters to be determined in comparison with the competition limitation and efficiency, which are specifically caused by them.

③ The mere fact that a patentee grants economic benefits to an infringer does not necessarily mean that the agreement is not a legitimate exercise of a patent right. However, the circumstance that a patentee agreed to exclude infringement and gave considerable economic benefits to an infringer is the basis for concluding that the patentee had an anti-competitive intent or objective to the parties in concluding the agreement under comprehensive consideration of other circumstances. However, the Plaintiffs, upon the agreement of this case, granted to ASEAN the exclusive sales right of Kitex, which is not entirely related to the Plaintiff’s national and public hospital and the patent of this case (as indicated in the evidence Nos. 32 and 33, the sales right of Kitex, which is the previous medicine, was non-exclusive after considering the fact that the Plaintiffs had already provided 5% of the sales volume of Kitex to the Plaintiff in light of the circumstances of the domestic pharmaceutical industry at the time, the Plaintiffs appears to have offered 5% of the sales volume of Kitex to the Plaintiff, which is not the first five percent of the sales volume of Kitex in each of the above sales contract (in addition to the incentive and sales volume of Kit.).

(b) Whether a competitor of the same drug is a competitor;

1) The plaintiffs' assertion

The unfair collaborative act stipulated in the former part of Article 19(1) of the Fair Trade Act refers to an horizontal agreement that restricts competition among enterprisers. It is merely an infringer of the patent of this case. Meanwhile, each of the supply contracts of this case is a vertical contract between the plaintiffs holding patent rights to exclusively supply a patent product to ASEAN and the patentee and the licensee, and thus, it cannot be a horizontal and equal competitor against the plaintiffs. Accordingly, the unfair collaborative act between the plaintiffs and ASEAN cannot be established.

2) Determination

The plaintiffs' assertion that the East Asian medicine infringed the patent of this case is ultimately premised on the premise that the agreement of this case was a legitimate exercise of patent rights, and that the agreement of this case between the plaintiffs and the East Asian medicine exceeded the legitimate exercise of patent rights, as seen earlier, so this part of the plaintiffs' assertion is not acceptable.

The former part of the main text of Article 19(1) of the Fair Trade Act provides that an enterpriser shall not agree to jointly engage in an act of unfairly restricting competition with another enterpriser, and it does not require any horizontal competition relationship among them. In addition, even if an enterpriser is a collaborative act of an enterpriser which does not compete with the horizontal competition, if it is likely to restrict or restrict competition in the market, it is recognized as a need for regulation. Therefore, it cannot be said that an unfair collaborative act under the Fair Trade Act has a horizontal competition relationship between the participants of the collaborative act. Meanwhile, since both the Plaintiffs and the ASEAN are engaged in the development, manufacture, and sale of various medicines in the domestic market and all related businesses, it is reasonable to view that the ASEAN drugs are in the potential competition with the Plaintiffs even if they are not actually developing or selling the medicines produced by the Plaintiffs. Accordingly, this part of the Plaintiffs’ assertion is without any reason.

In this regard, the plaintiffs asserted that the restriction on the handling of competing products in the supply contract of this case is unilaterally applied to the same ASEAN, and that the restriction on the handling of competing products cannot be an unfair collaborative act in light of legal principles. However, Article 19(1)19 of the Fair Trade Act provides that the restriction on the handling of competing products shall be "other enterprisers (including those who engaged in such act)" and Article 19(1)19 of the Fair Trade Act provides that the restriction on the business activities of the enterprisers participating in the collaborative act shall be established even if they are some of the collaborative enterprisers, and there is no reason to

C. Whether competition restriction and illegality are restricted

1) The plaintiffs' assertion

① Many early the expiration of the patent of this case, consumers may choose reproduction drugs by entering the relevant market without any restriction. Therefore, the agreement of this case does not restrict competition.

② The restriction on the development, production, and sale of competing products to East Asia under each sales contract of this case is necessary for balance with the grant of exclusive sales rights, protection of trade secrets against new drugs, prevention of unfair use, encouragement of faithful promotional activities, prevention of harm to the life and health of the patient, etc. Furthermore, the restriction on the handling of competing products did not unfairly interfere with the business activities of East Asia due to the restriction on the handling of competing products.

2) Determination

A) The prohibition of manufacture and sale of Onnuris

As in the instant case, it is reasonable to define the relevant market on the basis of the new medicine and reproduction medicine in collusion where the patent registered and the reproduction medicine thereof are at issue. On the other hand, in case where the pharmacological effective ingredients are different, there is a difference in efficacy and usage, and there is a certain limit in the alternative dosage, and medical institutions also seem to manage the prescribed medication by pharmacological effective ingredients. As the other port elements of the roadside department, which is not the vertical soil, are different in terms of pharmacological effective ingredients, since the other port elements of the roadside department, which is not the vertical soil, are different in terms of pharmacological effective ingredients, it is reasonable to see that the related market of the instant case is the Onnuri dylon market at the five-stage level in the classification system of ATC (ATC 4 level, unlike this, even if the related market is not the port at the age of the ATC 4 level, the following circumstances are not changed in terms of competition limitation and illegality (the conclusion is not reasonable).

The Plaintiffs and East Asia’s restriction on the manufacture and sale of the various kinds of competing products until after the expiration of the patent term of this case is an agreement to “restriction on the trading area” as stipulated in Article 19(1)4 of the Fair Trade Act, and it is clear that it in itself limits competition by reducing the output quantity of the low-end sub-soil. According to each description of the evidence No. 1 and No. 19, at the time of the agreement of this case, the Plaintiffs’ market share at the time of the agreement of this case is 10% in the low-end sub-soil, and the exclusive status was 47.5% in the ocean-going market which is not the length of the AT-4 level. Accordingly, the Plaintiffs’ market share at the port-going market is no more than the market at which the high-competitive market at the port-end market at which the reproduction and sale of Cho F had been launched since 2003 to 97% in 209 to 417% in 209.

On the other hand, it is reasonable to see that the agreement on the restriction of the transaction area is unfair unless there are special circumstances, and it is difficult to find out circumstances to recognize the efficiency of the prohibition of manufacture and sale of Onnuri theory.

Although the plaintiffs asserted that the East Asia’s drugs renounced the manufacture and sale of diverse theories and decided to receive and sell sculptures from the plaintiffs, such management choice is more likely to obtain part of the plaintiffs’ profit derived from restricting competition than the profit arising from independent manufacture and sale and avoid risks arising from the development of reproduction, thereby resulting in an agreement on restricting competition in this case. Thus, it is nothing more than the motive of the agreement in this case, and therefore, it cannot be viewed as a ground for denying the restriction on competition.

B) Prohibition on the development, manufacture, production, etc. of competing products imposed by a supply contract

In the event that a joint marketing is conducted between pharmaceutical manufacturers by granting exclusive marketing rights to pharmaceutical products, etc., the development new medicine may be effectively sold in the market, through high profit creation or joint research and development, etc., and in the case of multi-national pharmaceutical manufacturers, the development of new medicine is facilitated by reducing the uncertainty of domestic market marketing, and facilitating entry into the domestic market of new medicines. However, the above effect can be sufficiently achieved through prohibition of the sale of competing products (in the case of products manufactured by using a third party’s technology, the same shall apply to the substance of products manufactured by using a third party’s technology) produced by a third party, and it is not necessary to restrict the research and development, manufacture, and production of products that can be in competition with ASEAN (the prohibition of handling competing products produced by a third party is not limited to new entry by the competitor into the relevant market, while the prohibition of manufacturing and manufacturing competing products by the third party from entering into the competing products by the same third party is very limited to the extent that it would not be new entry into the relevant market of the 20th century (the foregoing restriction is limited to the extent of the 10th non-competitive competition).

원고들이 주장하는 경쟁제품 취급 제한의 필요성에 관하여 보면, ㈀ 원고들 주장의 목적은 경쟁제품의 취급 금지를 통하여 충분히 달성할 수 있는 점, ㈁ 제품 관련 정보 등의 영업비밀이 경쟁제품의 연구개발에 영향을 미치기는 어렵고, 위와 같은 영업비밀은 의료기관 등을 통하여 의약품시장에서 어느 정도 얻을 수 있어 경쟁제품 취급제한은 영업비밀보호라는 목적 달성에 적절한 수단으로 보이지 않으며, 조프란과 발트렉스의 판매권을 부여하는 것은 경쟁제품인 온다론을 출시할 정도의 잠재적 경쟁자인 동아제약에게 결과적으로 위 의약품의 영업비밀을 제공하게 되는 것인 점, ㈂ 판매대리인의 소홀한 판매활동의 우려와 취급약품의 혼동에서 야기될 수 있는 위험성은 경쟁제품이 개발된 이후에 발생할 여지가 있을 뿐 개발연구단계에서 문제될 소지는 없어 보이는 점, ㈃ 발트렉스의 경우 판매계약 종료 후에도 1년 동안 위와 같은 제한을 약정한 점, ㈄ 특허권자가 판매권을 빌미로 경쟁사업자를 시장에서 배제하고 독점적인 지위를 유지·강화할 실제적인 위험성이 존재하고, 경쟁제한이 합리적이라고 인정되어 사업자의 독점적 지위가 보장되는 예외적 경우는 필요·최소한의 범위 내에서 법령에 근거하여 인정되어야 하므로 경쟁사업자에 대한 사업제약의 허용성 여부는 엄격히 판단해야 할 것인 점 등을 고려하면, 원고들의 위 주장은 받아들이기 어렵다.

(d) Completion of prescription for the disposition;

1) The plaintiffs' assertion

① The settlement agreement of this case and each sales contract of this case lose its effect on April 17, 2005 with the expiration date, and thereafter the settlement contract was not renewed, and the sales contract concluded after 2005 was a separate act based on a new decision-making that is distinct from the initial sales contract. Thus, the statute of limitations for disposal of this case’s agreement has expired.

② Since around 2003, a number of copies of the instant agreement were released, and at least after 2005, the consumer’s right of choice of reproduction was not restricted, and thus, the limitation period for the instant agreement has expired.

2) Determination

In full view of the above facts of recognition and the following circumstances recognized by the above evidence, it is reasonable to view that the agreement of this case continued until the date of deliberation of this case, and therefore, the plaintiffs' allegation in this part is not acceptable.

① ㈀ 동일한 의향서에 기초하여 같은 날 화해계약과 각 공급계약이 체결된 점, ㈁ 의향서 자체에도 ‘원고들이 동아제약에게 부여한 조프란과 발트렉스의 판매권을 참작하여 동아제약이 온다론 및 온단세트론 함유 품목의 제조, 판매를 중지하고 기출시된 온다론 및 온단세트론을 시장으로부터 철수시킨다.’고 기재되어 있는 점, ㈂ 각 공급계약의 전문에 화해계약 체결사실이 기재되어 있는 점, ㈃ 동아제약의 직원들도 이 사건 합의가 하나로 체결되었다는 취지로 진술하였고, 원고들의 입장에서도 이 사건 화해계약과 각 공급계약이 각각 별개로 검토된 것이 아니라 전체적인 고려 하에 이루어진 것으로 보이는 점, ㈄ 이 사건 특허의 침해에 관한 화해계약이 아니었다면 이전에 원고들이 담당하던 조프란의 국·공립병원에 대한 판매권을 동아제약에게 줄 이유가 없어 보이는 점 등을 고려하면, 화해계약, 각 공급계약이 함께 하나의 단일한 의사로서 이 사건 합의를 구성하는 것으로 봄이 타당하다.

② Each supply contract has been renewed even after the conclusion of April 17, 200. The prohibition clause on the development, manufacture, etc. of competing products has been maintained until the deliberation date of the instant case, and the same anti-competitive effect still remains valid notwithstanding the expiration of the settlement contract. Although, in the case of a contract for the renewal of a contract, there was an alteration to some other contract terms and conditions, and there was a gap for about three months after the termination of the contract on September 30, 2005, the new contract was entered into on December 20, 2005, but the rights and obligations of the Plaintiffs and the same medication pursuant to the contract on April 17, 200 were maintained alternatively in the subsequent contract, it cannot be deemed that the renewal contract was a separate contract and the agreement in this case has not been continued.

(3) As seen earlier, it cannot be deemed that the restriction on competition has ceased due to the reproduction and withdrawal of the signal box. As such, the claim for the completion of the extinctive prescription premised on the extinguishment of the restriction on competition cannot be accepted.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety because they are without merit.

Judges Cho Jae-ho (Presiding Judge)