지식재산권법상 유전자원 관련 전통지식 보호에 관한 연구

A Study on Protection of Traditional Knowledge related to Genetic Resources in Intellectual Property Law

In developed countries, there have been many cases that companies get benefited by applying for a patent using traditional knowledge related to genetic resources. However, the problem that the companies do not return their profits to the natives or countries originally having genetic resources, as known as "Bio-piracy", has become an important issue. Although "Nagoya Protocol" was adopted to get this problem solved, Bio-piracy is still ongoing. Current IPR system includes Patent, Utility Model Act, Copyright, Trademark, and Design Law, Unfair Competition Prevention and Trade Secret Protection Act. However, there is a certain limit to the protection of intellectual property rights that traditional knowledge related to genetic resources can insist in existing system. Especially, in case of traditional knowledge, it is virtually impossible to meet patent requirements of industrial applicability, novelty, the inventive step. In this regard, sui generis system is needed to be introduced in developing countries. Also, regarding mandatory disclosure of source, developed and developing countries have different views each other. In China and India, there are provisions for the disclosure of source in 「patent law」. However, it is necessary to discuss in terms of conflicts in the Trips Agreement article 27 and Nagoya Protocol. Like Shiseido and Sacha Inchi cases, it is frequent that beneficiaries just revoke the existing patent. In this regard, it is needed to prepare a plan for intellectual property litigation and establish a plan for distributing legitimate interests. Especially, Korea is in a position that takes advantage of those resources which implies that we should be aware of a huge impact this action would have in cosmetic industry as well as in a variety of industries. As discussed above, there are some limits on protection of traditional knowledge related to genetic resources in intellectual property law. So that, it is desirable to discuss on "sui generis system" for our country's benefits.