특허법 통일화 : SPLT의 전망과 우리의 대응

Abstract

The World Intellectual Property Organization (WIPO) is, through the Standing Committee on the Law of Patents (SCP), administering discussion of a draft of the Substantive Patent Law Treaty (SPLT). SPLT is like other treaties, such as the Paris Conventions, the Patent Cooperation Treaty (PCT), the Patent Law Treaty (PLT), in pursuit of patent law harmonization. This article first studies the objectives and history of the international patent law harmonization. Basically, the harmonization aims to achieve the mutual recognition of examination results through the harmonized and streamlined patent laws and practices in various countries. With the mutual recognition of examination results possible, it will be possible to dramatically reduce the workload of each Office and accordingly to reduce the examination period, which is very essential to enhance the efficiency of patent system. The 10th Session of the SCP held in Geneva in May 2004 discussed several issues: (1) simplification of issues, (2) mandatory statement of the source of genetic resources and traditional knowledge (GR & TK) in patent application requests, (3) grace period, (4) expansion of patentable subject matter, etc. Developing countries strongly argues to discuss all issues of the current draft of SPLT and to mandate the statement of GR & TK in patent applications. Considering current differences of positions between developed and developing countries, I conclude that SPLT may not be adopted in the near future. Therefore, I suggest that we should prepare for SPLT not only by making our position on each issue but also (1) by introducing some provisions of the already adopted PLT into our patent law, (2) by keeping bilateral cooperation to achieve mutual recognition of examination results with Australia, Japan, China and the U.S.A., (3) by establishing our position on some package suggestions, which is for example expanding patentable subject matter in consideration of mandating to state source of GR & TK in a patent application, (4) by harmonizing our patent law with PCT, and (5) by putting the highest priority of patent administration of our Office to the examination quality. Especially it is emphasized that in the era of harmonized patent system examination quality will be the most important factor in deciding competitiveness of an Office. Therefore the Patent Offices must pay the first attention on examination quality not on examination period.