Regarding plants, only asexually reproduced plants are patentable under Article 31 of the Patent Act. However, there is no provision in the Patent Act that explicitly denies the patentability of animal per se.
Even though not specifically mentioned in the related Act, it is generally understood, and stipulated in the “Examination Guideline for Inventions in Specific Fields,” that the following are not patentable: - inventions concerning humans or human organs; - inventions in which humans are a constituent of the invention; - and methods of diagnosis, therapy, or surgical treatment for humans.
Under Article 32 of the Patent Act, inventions that would contravene public order or morality, or be harmful to public health, shall not be patentable. Inventions lacking the description requirement are also not patentable under Article 42.3 of the Patent Act.
Patent Examination Guideline for the Field of Biotechnology was newly added to the Examination Guideline for Inventions in Specific Fields in March 1998 to cover the biotechnology field.
As mentioned in the answer to question 1 above, asexually reproduced plants are patentable under Article 31 of the Patent Act.
[Answer A.1: Regarding plants, only asexually reproduced plants are patentable under Article 31 of the Patent Act. However, there is no provision in the Patent Act that explicitly denies the patentability of animal per se.]
See the answer to question 4 above.
[Answer A.4: As mentioned in the answer to question 1 above, asexually reproduced plants are patentable under Article 31 of the Patent Act.]
Even if the subject-matter is identical to what occurs in nature, inventions that contain artificial efforts and meet the conditions for patentability, including reproducibility, according to Article 42.3, are patentable.
Article 42.3 stipulates that the purpose, construction, function and effect of the invention shall be described so that it may be easily carried out by a person having ordinary skill in the art to which the invention pertains.
A patentee shall have the exclusive right to “work” a patented invention both commercially and industrially under Article 94 of the Patent Act; “working” means any one of the following under Article 2.3 of the Patent Act: (a) in the case of an invention of a product, acts of manufacturing, using, assigning, leasing, importing, or offering for assigning or leasing (including displaying for the purpose of assignment or lease) the product; (b) in the case of an invention of a process, acts of using the process; and (c) in the case of an invention of a process of manufacturing a product, acts of using, assigning, leasing, importing, or offering for assigning or leasing the product manufactured by the process, in addition to the acts mentioned in subparagraph (b).
There is no specific exception.
N.B. Please ensure that your responses to the questions above cover each category of subject matter specified in Article 27.3(b), namely micro-organisms, essentially biological processes for the production of plants or animals, microbiological processes, non-biological processes, plant varieties and other inventions concerning plants or animals.
The Seed Industry Act, which took effect on 31 December 1997, protects the rights of new plant variety breeders.
The Republic of Korea is not a party to the UPOV Convention, but the current Seed Industry Act conforms to the 1991 Act of the UPOV Convention.
Protection is offered to asexually produced plants under both the current Seed Industry Act and the Patent Act. While protection of breeders’ rights is offered to both asexually and sexually produced plant varieties under the Seed Industry Act, the Patent Act provides patent protection to only asexually produced plant varieties.
The relevant domestic law and regulation for the protection of plant protection are the Seed Industry Act and its Enforcement Regulation.
According to Article 2.4 of the Seed Industry Act, plant varieties are defined as "a plant grouping within a single botanical taxon of the lowest known rank, where the grouping can be distinguished from another plant grouping by the expression of at least one characteristic, and is considered as a unit with regard to its suitability for being propagated unchanged."
Under Article 12, the Seed Industry Act, protection is granted to a variety, provided that such variety has novelty, distinctness, uniformity, stability and a separate denomination.
Article 13.2 of the Act provides that, among the varieties which have already been known at the time when species or genus of the plants entitled to variety protection under the Act are determined in accordance with the Ordinance of the Ministry of Agriculture and Forestry, a variety falling under any of the following category shall be entitled to protection, provided that an application for variety protection thereof is made within one year from the date of the determination. (i) a variety registered or specified under the past relevant laws. (ii) a variety whose protection rights are registered in foreign countries. (iii) a variety whose breeder and initial circulation date are verified.
Under the Seed Industry Act, a variety essentially derived from the protected variety is also considered to be a protected variety and, therefore, cannot be protected as a new variety.
Those who make an application for variety protection and registered their variety protection right in accordance with the Seed Industry Act are entitled to the rights.
The application for variety protection should be made to the Minister of Agriculture and Forestry, who will designate examiners to review the application. Once the application is accepted, the Minister of Agriculture and Forestry, registers the establishment of the variety protection right. Upon registration, the variety protection right comes into force.
Those who hold variety protection have exclusive rights to exploit the protected varieties concerned on a commercial and industrial basis.
Under Article 58 of the Seed Industry Act, the effects of a variety protection right shall not extend to any of the following: - exploitation of the protected variety for self consumption or for non commercial purposes. - exploitation of the protected variety for experimental and research purposes. - exploitation of the protected variety with a view to breeding other varieties. - farmers’ collection of seeds of the variety for self production purposes. Article 68 also provides for a compulsory licensing system.
Under Article 56 of the Act, the variety protection right shall expire at the end of the 20th calendar year following the date of the registration of its establishment. For ornamental trees and fruit trees, the right shall expire at the end of the 25th calendar year following the date of the registration of its establishment.
A variety protection right may be transferred by the act of assigning its share, bequeathment, or other general succession.
Any person who infringes the variety protection right shall be punished by imprisonment for not more than 5 years, or by a fine not exceeding 30 million won.
© World Trade Organization 2020
ver 22.214.171.12423 (10/07/2020 01:45 PM)