유전자특허의 재산권적 불완전성에 관한 소고 - 미국 연방대법원 유전자특허(BRCA 1, 2) 판결을 계기로-

On June 13, 2013, the U.S. Supreme Court issued a unanimousdecision in Association for Molecular Pathology v. Myriad Geneticsthat essentially upheld the patent eligibility of claims reciting cDNAmolecules encoding BRCA proteins, but struck down as patentineligible claims encompassing isolated fragments of BRCA-encodinggenomic DNA. The purpose of this paper is to critically rethink the wellorganizedattitude towards economic theorizing on property as acomplete bundle of rights based on the Gene Patent Decision of U.S. Supreme Court on June 13, 2013. The impact of Myriad decision onbiotecnology and gene patent will to a large extent depend on how thedecision is interpreted and applied by the lower courts. On the otherhand, this paper will mainly focus on the property right of gene patentbased on property right theory such as the view of North andinstitutional economics. As a property right, the gene patent has theincompleteness in itself and its contents and limits are not well-defined. Further more, there is a possibility of cancelling its rights because of aninvalidity action. We could understand the incompleteness of propertyrights through this gene patent decision and the role of government orcourt as a designer of the paent system. To increase the total socialinterests, the role of government or court should be reconstructed fornew types of property rights like the gene patent. The traditional property rights theories are not enough to explain the nature andfunctions of new kinds of property because they have paid little attentionto the incompleteness of property rights. We should focus more on thepractical and dynamic aspects of property and new types of propertyrights because a variety of properties will come up considering the rapiddevelopment of our science and technology.