특허법 제32조 “공중의 위생을 해칠 우려” 규정의 기능과 해석

In a 2020 decision, the Korean Patent Court found a functional food claim containing Asian virginsbower-derived compound unpatentable based on Article 32 of the Korean Patent Act. There is not an abundance of legislative history, scholarly work, or court decisions from which to formulate the purpose or function of the “likely to harm public health” clause of Article 32. Article 32 is actually a word-for-word reiteration of the identically numbered provision of the Japanese Patent Act, which, in turn, appears to have been adopted from similar provisions under a number of European patent laws back in 1885, when Japan legislated its first patent law. “An invention likely to harm public health” must be interpreted in light of the function it serves. Article 32 unpatentable invention does not serve to forbid or frustrate socially undesirable inventions. Unpatentability only means the unavailability of monopoly. What Article 32 serves, then, is to preempt monopoly, thereby preventing rent from a socially undesirable invention and possible rent-seeking behavior. Article 32 also serves to preserve respect in the patent system and the patent authority by precluding clearly undesirable inventions that may be ridiculed by the public if granted patent. Therefore, this paper proposes to abandon using “safety” as the standards for applying Article 32 that the Korean Patent Office, as well as the Patent Court, have endorsed. Instead, “an invention likely to harm public health” should be considered as one that is so obvious from the text of the claim to be without any beneficial purpose and solely intended to create bodily harm as to abhor the average person with sound principles.