유전자 관련 발명의 성립성 (Subject-matter Patentability of Gene-related Inventions)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 13권 / 4호 / 641 ~ 667페이지
· 저자명 : 김관식

초록

Heredity is one of the most essential features of creatures and it is well known that heredity is mediated by genes especially by DNA from parents to offspring. Due to the revolutionary progress in the biotechnology such as recombinant DNA, DNA-related inventions have been frequently submitted for patents. Subject-matter patentability of DNA-related inventions is generally approved mainly based on the utility and artificiality of the inventions. But the subject-matter patentability can not be guaranteed by the utility and artificiality of the inventions. Being useful and artificial, the subject-matter patentability should be denied when the inventions can be deemed as law of nature or abstract idea as contrasted by application of idea in order to restrict the exclusive right of the invention and prevent harmful consequences by the resulting monopoly.
With given DNA, resulting amino acids are determined by the codons of the DNA and the amino acids in turn determine the proteins, essential part of most living organisms. DNA-related inventions with known function such as isolated DNA, cDNA, therefore, can be deemed as a law of nature; whereas subject-matter patentability of recombinant DNA which is made of a fragment DNA with a known function and plasmid acting as a vector, can not be denied due to the plurality of the possible combining methods. The subject-matter patentability of gene-related inventions such as isolated DNA, cDNA, therefore, can not be approved.

영어초록

Heredity is one of the most essential features of creatures and it is well known that heredity is mediated by genes especially by DNA from parents to offspring. Due to the revolutionary progress in the biotechnology such as recombinant DNA, DNA-related inventions have been frequently submitted for patents. Subject-matter patentability of DNA-related inventions is generally approved mainly based on the utility and artificiality of the inventions. But the subject-matter patentability can not be guaranteed by the utility and artificiality of the inventions. Being useful and artificial, the subject-matter patentability should be denied when the inventions can be deemed as law of nature or abstract idea as contrasted by application of idea in order to restrict the exclusive right of the invention and prevent harmful consequences by the resulting monopoly.
With given DNA, resulting amino acids are determined by the codons of the DNA and the amino acids in turn determine the proteins, essential part of most living organisms. DNA-related inventions with known function such as isolated DNA, cDNA, therefore, can be deemed as a law of nature; whereas subject-matter patentability of recombinant DNA which is made of a fragment DNA with a known function and plasmid acting as a vector, can not be denied due to the plurality of the possible combining methods. The subject-matter patentability of gene-related inventions such as isolated DNA, cDNA, therefore, can not be approved.

참고자료

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