Reasons for Proposal
The current Act defines inventions with industrial applicability as one of the patent requirements. Patent and Utility Model Review Standards, which is one of the Korean Intellectual Property Office’s Established Rules, excludes medical practices from patents since they are not inventions with industrial applicability. The Supreme Court also ruled that inventions for medical practices are not considered to have industrial applicability and therefore they cannot be patented.
Nevertheless, there are growing opinions that industrialization is taking place in healthcare and treatment or diagnostic methods have industrial applicability. Hence, it needs to be explicitly defined in an Act, not an Established Rule.
Furthermore, countries like Canada and Germany have put in place a compulsory license scheme for government use in response to COVID-19, and Korea needs to take prompt action.
This Act aims to supplement and improve those shortcomings in the current Act by explicitly stating that medical practices defined in the Established Rule cannot be patented inventions and updating government compulsory license provisions to prepare the license of patented inventions for public interests such as COVID-19 vaccines or treatments.
Details
A. Exclude from patents any technology that may have a serious impact on the environment, considering the importance of environmental protection (Article 32 subparagraph 2).
B. State that diagnostic, treatment, or surgical methods for humans or animals cannot be patented (Article 32 subparagraph 3).
C. Explicitly state that patented inventions can be licensed at the discretion of the responsible Minister, specify any person other than the government who can license a patented invention as the counterparty under the Act on Contracts to Which the State is a Party, and clarify the statement, which may be interpreted to mean that a patented invention can be licensed only after prior action from the government, to state that it can be licensed without such prior investigation (Article 106-2 paragraph 1).
D. Consolidate those paying compensation for the license of patented inventions, which are defined as the government and any person other than the government, into the responsible Minister, and exclude the non-exclusive licensee from eligibility for compensation since the licensee is not eligible for compensation about a statutory license for government use (Article 106-2 paragraph 3).
