의료행위관련발명 보호체제의 개선방안에 관한 小考

Abstract

Patents are rarely permitted to the inventions related to the medical activities throughout the world. The specific reason of the rejection for the application of patent protection for the medical activity is mainly based on the lack of industrial applicability. This opinion is critically reviewed in the essay and it is showed that the opinion lack logical ground. The better protection schemes for the medical activity related inventions are proposed. The proposition is mainly composed of two schemes. One is to specify that the medical activity related invention shall not be treated as an invention in the meaning of the Patent Act. The other is to make it clear that the invention has an industrial applicability in the meaning of the Patent Act. Pertaining to the latter, a provision that put a limit to the scope of patentee's right should be provided to secure free medical treatments by medical practitioners such as doctors and nurses in the medical entities such as hospitals. The proposed provision can be realized by the substitution of preparation of medicine clause with medical activity clause.