植物特許制度의 改善方案 硏究 = (The) Study on the Plant Patent System

다국어 초록 (Multilingual Abstract)

In the Korean patent law, Article 31 is the only provision in the field of plant patent. This provision refers that a person who invents a variety of plants that reproduces itself asexually may obtain a plant patent. The meaning of this provision has been controversial continuously. The most important thing among the controversies is whether the provision, Article 31, is dependent or independent form other provisions.
When the first action in lawmaking for protecting plant varieties was taken place in 1946, the plant patent system in the US code 35 was almost perfectly introduced into the Korean patent law as it was. In US code 35, plant patent is said as a kind of patent for protecting only plant varieties. However, all the provisions introduced from US code 35 in 1946 were deleted in 1961 except for the provision describing the subject of protection. The remained provision is same to the present Article 31 with the exception of the provisory clause.
There are difficulties in finding out the reason why the only provision, Article 31, was remained. In the first place, we can merely infer the meaning of this provision by making an observation in the worldwide trends in the protection system for plant varieties at that time.
After the rediscovery for Mendel's law at 1900, the plant breeding was started in a scientific way and thereby the new problems in protecting the new varieties bred by scientific methods such as crossing, selection was followed. However, the new plant varieties were not protected by patent law because they were not satisfactory to the requirements in description, repeatability, or inventive step as an invention.
Because of these reasons, many countries introduced a new suigeneris system that is different form the general patent. Plant Patent Act was established in USA at 1930 and UPOV convention, a model for plant varieties' protection law, was concluded by European countries at 1961.
The protection for plant varieties by the general patent was started in the 1980s since when biotechnology has become a tool in plant breeding. Plant improved by genetic engineering such as gene recombination, cell fusion and transformation was satisfactory to the said requirements.
Considering the history of plant protection, the provision restricting the subject in the plant patent law (1961) was not necessary since, in that law, no plant varieties was able to be a protectable subject meeting the requirements of the general patent at that time. Therefore, the existing Article 31 can be concluded to be nothing but a provision to declare the fact that the new varieties can be protected.
As the result, we can either introduce either the plant patent system with complementation the Article 31 or delete the article 31. But if the plant patent system is introduced, there will be two protection systems for asexually reproducing plant varieties, the plant patent act and plant varieties protection law. Considering the problem of double protection system, it would be desirable to deleting the existing Article 31.
Consequently, plant inventions by new biotechnology can be applied to the general patent for the protection and plant varieties by the conventional breeding method can be legitimate to the plant variety protection system.

목차 (Table of Contents)

• 목차 = ⅰ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 方法과 範圍 = 5
• 第2章 우리나라의 植物H護制度 = 8
• 第1節 植物保護制度의 意義와 導入背景 = 8
• Ⅰ. 植物保譜制度의 意義 = 8
• Ⅱ. 植物保護制度의 導入背景 = 10
• 第2節 特許法에 의한 保護 = 11
• Ⅰ. 審査基準의 制定 및 變遷 = 11
• Ⅱ. 特許法에 의한 保護 = 11
• 第3節 種子産業法上 品種保護制度에 의한 保護 = 24
• Ⅰ. 種子産業法의 制定 背景 = 24
• Ⅱ. 種子産業法의 主要內容 = 25
• Ⅲ. 種子産業法上 品種保護制度 = 26
• 第4節 特許法과 種子産業法의 植物保護內容 比較 = 38
• 第3章 外國의 植物保護制度 = 40
• 第1節 美國의 植物保譜制度 = 40
• Ⅰ. 特許法上 植物特許制度에 의한 保護 = 41
• Ⅱ. 特許法上 一般特許制度에 의한 保護 = 48
• Ⅲ. 植物品種保譜法에 의한 保護 = 50
• 第2節 유럽의 植物保護制度 = 54
• Ⅰ. 유럽特許條約에 의 한 保護 = 54
• Ⅱ. 品種保護法에 의한 保護 = 58
• 第3節 日本의 植物保譜制度 = 60
• Ⅰ. 特許法에 의한 保護 = 60
• Ⅱ. 種苗法上 品種保護制度에 의한 保譜 = 66
• 第4節 UPOV 條約에 의한 植物品種의 保護 = 69
• Ⅰ. 植物新品種保譜의 意義 = 69
• Ⅱ. 國際新品種保護同盟(UPOV)의 登場 = 70
• Ⅲ. UPOV 條約의 植物品種保護 內容 = 71
• 第4章 우리나라 植物特許制度의 間題點과 改善方案 = 76
• 第1節 우리나라 特許法上 植物特許制度의 變遷 = 76
• Ⅰ. 1946年 特許法 = 76
• Ⅱ. 1961年 特許法 = 81
• Ⅲ. 改定 特許法 = 83
• 第2節 우리나라 植物特許制度의 問題點 = 86
• Ⅰ. 特許法 第31條士의 植物特許의 對象 = 86
• Ⅱ. 特許法 第31條士의 發明의 意味 = 87
• Ⅲ. 特許拒絶決定의 對象으로서 植物發明特許 條項 = 88
• Ⅳ. 品種보다 上位 레벨의 包括的 植物 등의 取扱 = 89
• Ⅴ. 植物發明特許 規定의 特許要件 輿否 = 90
• Ⅵ. 植物發明特許 規定의 特別條項 與否 = 90
• Ⅶ. 植物發明特許 規定과 特許받을 수 없는 發明과의 關係 = 91
• Ⅷ. 植物發明特許 關聯規定의 未備 = 91
• 第3節 改善方案 = 92
• Ⅰ. 植物發明特許 規定의 不特許要伴化 = 92
• Ⅱ. 美國 植物特許法의 導入 = 92
• Ⅲ. 植物發明特許 條項의 削除 = 93
• Ⅳ. 特許拒絶決定의 對象에서 植物發明特許 規定을 削除 = 94
• 第5章 結論 = 95
• 參考文獻 = 100
• ABSTRACT = 102