특허출원시 유전자원 출처공개의무에 대한 소고

There are growing concerns about the damage to biodiversity and the negative consequences it may have. Efforts by the international community to conserve biodiversity and prevent indiscriminate use of genetic resources have continued, and one of the fruits of the efforts is the adoption and implementation of the Nagoya Protocol. The main content of the Nagoya Protocol is to share the benefits of using genetic resources in a fair and equitable way, and the developed and developing countries have agreed on this system of benefit sharing. However, from the time of adoption until now, developed and developing countries have not reached an agreement on a few major issues, and intellectual property rights, which can be called the core of benefit sharing, are still fiercely contested. In particular, with respect to patents among intellectual property rights, whether or not to require disclosure of the origin when filing a patent application regarding the use of genetic resources can be directly related to the economic interests of the business sector seeking to obtain a patent, and also can affect biotechnology development. In relation to the mandatory disclosure of origin regarding the use of genetic resources when applying for a patent, developing countries actively insist on introducing it, and some developed countries also support it, while major developed countries, such as the United States and Japan, strongly oppose it. In the current international negotiations, discussions on the revision of WTO TRIPs and adoption of consolidated document under the WIPO are ongoing, but no agreement has been reached. However, through FTA or domestic laws in each country, the mandatory disclosure of origin has been adopted . Although there is a prospect that it will be difficult to reach an agreement in the near future in this conflicting situation, the continuous confrontation is undesirable for both sides and increases legal uncertainty. Considering the active demands of developing countries to introduce mandatory disclosure of origin as an international norm and the trend of introducing it as a domestic law from some countries, it is time for Korea to analyze and respond to various methods of disclosure of origin as well. Until now, Korea has been opposed to the introduction of mandatory disclosure of origin in the same position as developed countries, which are countries that use genetic resources. However, it is necessary to clearly set a position on the subject, scope, and effect of disclosure of origin in preparation for the need to be introduced in international norms. As a possible option, the scope of disclosure can be extended to the evidence associated with PIC and MAT, while considering a flexible approach of establishing civil or criminal sanctions instead of patent invalidity or cancellation.