Conclusion

As discussed earlier, there is a legal uncertainty of whether only asexually reproducible plant varieties are protected under the Korean Patent Act.

Figure 19.2 shows that the number of applications for sexually reproduced plant-related invention under the Patent Act has decreased very sharply since 2000. On the contrary, the number of applications for plant varieties by the SIA has increased since 2000 (Fig. 19.3). It seems that seed-related innovators have shifted from the patent system to the sui generis system for the protection of their innovations. It is too early to say that this trend will continue because patent right is regarded as stronger than plant breeder's right (Janis and Kesan, 2002). At least, it can be said that the SIA has been accepted as a useful system for the protection of plant variety.

There is criticism that the plant-specific provision in the Patent Act is unreasonably discriminating plant innovation compared with the other fields of technology. Even though the general requirement for patent is satisfied, the KIPO accepts only asexually reproducible plant varieties as an eligible subject matter for patent.

100 90 80 70

Year

Fig. 19.2. Number of applications for plant-related invention under Patent Law. (From Lee, 2001.)

Year

Fig. 19.3. Number of applications for plant varieties by the Seed Industry Act.

Year

Fig. 19.3. Number of applications for plant varieties by the Seed Industry Act.

There is no court decision whether seed varieties could obtain patents. This kind of legal uncertainty is detrimental to the economy generally and plant-related innovators specifically. Therefore, the provision of plant patent in the Patent Act needs to be amended. Removal of plant-specific provision may be one of the answers.17

0 0

Post a comment