세계지식재산기구 정부간위원회의 유전자원 및 연관 전통지식 관련 지식재산권 협상쟁점과 나고야의정서에 대한 시사점 = The Core Issues of Genetic Resources and Associated Traditional Knowledge-Related Intellectual Property under WIPO IGC and its Lessons to the Nagoya Protocol

다국어 초록 (Multilingual Abstract)

Despite its ongoing negotiation status, the IGC Chair’s A mended Draft(hereinafter, the Chair’s Draft) could make a great contribution to the practical implementation of the intellectual property-related issues under Nagoya Protocol. Especially, The definitions which have not previously been defined at the multilateral level, source of genetic resources, and source of traditional knowledge associated with genetic resources materially/directly based on may make a great contribution to enhance the legal certainty and clarity.
The IGC Chair’s Draft defines the source of genetic resources as referring to any source from which the applicant has obtained the genetic resources, such as the country of origin, indigenous peoples and local communities, a research centre, gene bank, the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), or any other ex situ collection or depository of genetic resources, which is expected to provide the limited scope of their source. This Draft also defines the “Source of Traditional Knowledge Associated with Genetic Resources” as meaning any source from which the applicant has obtained the traditiona l k nowledge associated with genetic resources, such as indigenous peoples or local communities, scientific literature, publicly accessible databases, patent applications and patent publications, which indicates that there could be other source of traditional knowledge of genetic resources in addition to IPLC.
The “materially/directly based on” specifies the particular relationship between the claimed invention and the genetic resources and Associated Traditional knowledge which activates the obligation to disclose (referred to in the IGC discussions as the “trigger”), and provides important guidance and direction to the patent applicant as well as patent offices.
The definition of “[materially/directly] based on” is found in Article 2 of the Chair’s Draft, which reads “[Materially/Directly] based on” means that the genetic resources and/or Associated traditional knowledge must have been necessary or material to the development of the claimed invention, and that the claimed invention must depend on the specific properties of the genetic resources and/or Associated traditional knowledge, and reveals its quite strict “disclosure requirement. Therefore, this definition clarifies the causal relationship between the claimed invention and genetic resou rces and/or Associated traditiona l k nowledge which must be necessary or material to the claimed invention, not to the development of the claimed invention.
What could most attract the attention of patent applicant and patent offices wil l be related to the provisions regarding the limitations and sanctions for the non-compliance with disclosure requirement obligations. The Draft requires each Contracting Party to put in place appropriate, effective and proportionate legal, administrative, and/ or policy measures to address an applicant’s failure to disclose the information specified in disclosure requirement clause. However, it leaves to the national patent offices what constitutes appropriate, ef fec tive a nd propor tionate lega l, a d m i n is t rative, a nd/or pol ic y measures.
These measures could include pre-grant sanctions, such as suspending the further processing of a patent application until the disclosure requirement is satisfied, or withdrawing/lapsing the application if the applicant fails or refuses to provide the information specified in the disclosure requirement clause within a time period as determined at the national level. These measures could also contain post-grant sanctions, such as fines for wilfully failing to disclose the specified information or intentionally providing incorrect information as well as the publication of judicial rulings. In addition, the Draft requires each Contracting Party to provide an applicant an opportunity to rect...

참고문헌 (Reference)

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2 유예리, "전통지식에 대한 국제적 규제동향에 관한 연구 -중국의 전통지식에 관한 법령을 중심으로-" 한중법학회 23 : 175-198, 2015

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7 "WIPO IGC"

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9 WIPO, "The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore"

10 GS Nijar, "The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: Analysis and Implementation Options for Developing Countries" South Centre and Centre of Excellence for Biodiversity Law 2011

11 UNCTAD, "Resource Book on TRIPS and Development"

12 "Nagoya protocol"

13 WIPO, "Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources Prepared by Mr. Ian Goss, Chair, WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore"

14 "Convention on Biological Diversity"

15 IUCN, "An Explanatory Guide to the Nagoya Protocol on Access and Benefit- Shring"

16 WIPO, "Amended Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources Prepared by Mr. Ian Goss, Former Chair of the IGC, for IGC 43"