유전자원 ‘특허’와 WTO TRIPs ‘비차별 주의’에 대한 소고 - 나고야의정서 제11조 제1항 월경성 협력을 중심으로 -

The purpose of this article is to examine the links between the patent of genetic resources and WTO TRIPs non-discrimination principle in transboundary cooperation. This analysis looks at the transboundary cooperation of the Nagoya protocol article 11 sec. 1 which states that "In instances where the same genetic resources are found in situ within the territory of more than one party, those parties shall endeavour to cooperate, as appropriate, with the involvement of indigenous and local communities concerned, where applicable, with a view to implementing this protocol." Unfortunately, this protocol leaves unanswered the question of how could we cooperate in the transboundary situation. This paper proposes a theoretical framework that analyzes the transboundary situation and its relation to the non-discrimination principle of WTO TRIPs. First, it analyzes the transboundary situation of genetic resources patent by examining the correlation between the same genetic resources and the patent application. Then the first-to-file system is applied while checking the retroactive effect of CBD and nagoya protocol and finally considers the patent application of unentitled persons in illegal situations. This comprises the first main feature of Transboundary situation of genetic resources patent with direct relevance to the Non-discrimination principle of WTO TRIPs. Non-discrimination principle is composed of National treatment and Most favored nation principles. Secondly, this paper considers the Prior Informed Consent(PIC) and Designation of checkpoints related with the Non-discrimination principle. In the case of the PIC, great attention has been given to the question of discrimination between domestic and foreign users. In addition, measures should be taken to avoid discrimination of the application method of PIC. Next this paper notes the importance of checkpoints designation. Regretfully, research on "checkpoints designation" of domestic law related with nagoya protocol is still in its early stages. Thirdly, this article suggests the transboundary cooperation between Nagoya protocol and WTO TRIPs. First, the PIC and 'checkpoints designation' should be linked with nations in the transboundary situation. Second, when applying R&D steps there is need to meet the disclosure requirement of genetic resources and lastly is the invigoration of the legal service of Intellectual property dispute settlement center in the patent court when implementing compliance steps. This paper hopes to serve as a platform for the discussion of transboundary cooperation of genetic resources' patent.