earticle

영어

In Korea, plant varieties are protected by two different laws, the Patent Law and the Plant Varieties Protection Act. The former covers a-sexually reproducing varieties while the latter sexually reproducing varieties. In protecting plant varieties, the two Acts are different from each other in terms of requirements for protection such as inventiveness and adequate disclosure. The author argues that the dual protection system for plant varieties should be reformed. A critical problem of the present dual system is that since patents are available only for a- sexually reproducing varieties in particular by Art.31 of the Patent Law, breeders and discoverers of sexually reproducing varieties are excluded from patent system. The problem gets worse in the new technology environment where rapid development of the genetic engineering makes the classification between sexual and a-sexual reproduction obscure. In practice, breeders and discoverers of sexually reproducing varieties takes a detour to get patent, for example, by way of combining elements of a-sexual reproduction with that of sexual reproduction in their applications for patents. In principle, however, there is no self- evident reason why under the Patent Law sexually reproducing varieties are treated differently from a-sexually reproducing varieties. In fact, many countries have one patent system available for both of them. In short, the author argues that repealing Art. 31 of the Patent Law which excludes sexually reproducing varieties from patent system, legal protection system for plant varieties should be unified, or alternatively reformed in direction to its harmonization with the requirements of the Plant Variety Protection Act.