特許法의 統一化와 傳統知識ㆍ遺傳資源의 保護問題

How to Protect Genetic Resources and Traditional Knowledge under Harmonized Patent Law?

The purpose of Patent Law is to encourage and protect inventors, thereby improving and developing technologies and nation's industry. An invention is a highly advanced creation of technical ideas utilizing rules of nature. By nature, patent rights are intangible, utilizable in anywhere, and susceptible to infringement. Therefore, it is not simple to manage intellectual property rights internationally in reasonable way with individual patent system of each country. The demand for harmonization of patent law system arose, and the Patent Law Treaty (PLT) was adopted in 2000 and became effective from April 28, 2005. PLT has achieved the harmonization in patent application procedure. However, the Draft Substantive Patent Law Treaty (SPLT) is currently under discussion to harmonize substantive parts of patent laws such as subject matter for protection, conditions of patentability, and prior arts. First-to-file system versus first-to-invent system is one of the issues in discussion. The United States of America is now on the process to amend its patent law into first-to file system, and the resolution in this issue can be reached soon. The agreement on the grace period is another problem to be solved. However, the protection of traditional knowledge and generic resources is a deadlock in harmonization of patent laws. It seems that the gap between technically advanced countries and developing countries on this issue is too wide to fill at the moment. To reach the agreement between developed countries and developing countries, disclosure requirements of origins of generic resources and traditional knowledge should be included in SPLT. The disclosure requirements are necessary to avoid rewarding unjust conduct and remedying biopiracy. This paper tried to propose a solution in SPLT with review of up-to-date discussions regarding protection of traditional knowledge and generic resources. The paper also noted that some clarifications are necessary in SPLT to avoid problems incurred possibly by Article 5 of PLT. The purpose of patent law harmonization is to provide a favorable patent system with streamlined application procedure. Under harmonized patent law, applicants can apply for a patent with low costs and high success rate due to foreseeable procedure in a short period of time. Also, a governing party can benefit from harmonization due to uniform and effective administration of patent system.