RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/125/Add.9
16 February 1999
(99-0621)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Information from Members
Addendum
REPUBLIC OF KOREA1
The present document represents the information requested by the Council for Trade-Related
Aspects of Intellectual Property Rights which the Secretariat has received from the Republic of Korea,by means of a communication from its Permanent Mission, dated 11 February 1999.  The information
is provided in the spirit of voluntary participation of the Republic of Korea to contribute to the
discussions of the Council on this Article and without prejudice to its legal status under Article 65.2
of the Agreement.
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A. 
PATENT PROTECTION OF PLANT AND ANIMAL INVENTIONS
1. To what extent are inventions concerning plan ts or animals, whether products or processes,
patentable under your country’s law, if they meet the conditions for patentability stipulated in Article
27.1 of the TRIPS Agreement?
Regarding plants, only asexually reproduced plants are patentable under Article 31 of the
Patent Act.  However, there is no provision in the Patent Act that explicitly denies the patentability of
animal per se.
2. Where any such inventions are not patentable, even if they meet these conditions:
(i) To what extent is this due to per se exclusions from patentability?
Even though not specifically mentioned in the related Act, it is generally understood,
and stipulated in the “Examination Guideline for Inventions in Specific Fields,” thatthe following are not patentable:
- inventions concerning humans or human organs;- inventions in which humans are a constituent of the invention;- and methods of diagnosis, therapy, or surgical treatment for humans.
                                                     
1 An illustrative list of questions prepared by the S ecretariat in response to a request from the Council
is available in document IP/C/W/122.IP/C/W/125/Add.9
Page 2
(ii) To what extent is this based on other grounds (for example because conditions for
patentability other than those stipulated in Article 27.1 are not met or in order to
protect order public or morality (see Article 27.2 of the Agreement))?
Under Article 32 of the Patent Act, inventions that would contravene public order or
morality, or be harmful to public health, shall not be patentable.  Inventions lacking
the description requirement are also not patentable under Article 42.3 of the Patent
Act.
3. Please describe any specific provisions, guidelines, final judicial decisions and administrative
rulings of general application concerning the application of the conditions for patentability stipulatedin Article 27.1 to subject matter addressed by Article 27.3(b).
Patent Examination Guideline for the Field of Biotechnology was newly added to the
Examination Guideline for Inventions in Specific Fields in March 1998 to cover the biotechnology
field.
4. Where plant varieties are not as such patentable subject-matter under your country’s law,
please indicate the extent to which the scope of protection under patents for inventions concerning
plants can nevertheless embrace plant varieties or a botanical taxon whose plants express a trait
covered by the claims of a patent.
As mentioned in the answer to question 1 above, asexually reproduced plants are patentable
under Article 31 of the Patent Act.
5. Please provide any definitions used under your country’s law with regard to subject-matter
specifically excluded from patentability or specifically patentable (e.g. micro-organisms,
microbiological processes, non-biological processes, plant varieties)
See the answer to question 4 above.
6. To what extent is subject-matter that is iden tical to what occurs in nature patentable under
your country’s law?
Even if the subject-matter is identical to what occurs in nature, inventions that contain
artificial efforts  and meet the conditions for patentability, including reproducibility, according to
Article 42.3, are patentable.
7. Explain the requirements under your country’s law for ensuring adequate disclosure of the
patentable inventions referred to above.
Article 42.3 stipulates that the purpose, construc tion, function and effect of the invention shall
be described so that it may be easily carried out by a person having ordinary skill in the art to whichthe invention pertains.
8. What rights are conferred upon owners of the patents referred to above? Are product and
process patents subject to the same rules as other patents? Do they benefit from the same protection
as stipulated in Article 28 of the TRIPS Agreement?
A patentee shall have the exclusive right to “work” a patented invention both commercially
and industrially under Article 94 of the Patent Act;  “working” means any one of the following under
Article 2.3 of the Patent Act:IP/C/W/125/Add.9
Page 3
(a) in the case of an invention of a product, acts of manufacturing, using, assigning,
leasing, importing, or offering for assigning or leasing (including displaying for the
purpose of assignment or lease) the product;
(b) in the case of an invention of a process, acts of using the process; and
(c) in the case of an invention of a process of manufacturing a product, acts of using,
assigning, leasing, importing, or offering for assigning or leasing the product
manufactured by the process, in addition to the acts mentioned in subparagraph  (b).
9. Are there any specific exceptions to these rights (affecting the scope or duration of the patents
referred to above)? To what extent are exceptions, available in respect of plant variety rights (e.g.
those referred to under question B.4(i) below), available in respect of rights conferred upon patent
owners?
There is no specific exception.
10. Are there any specific provisions under your country’s law for compulsory licensing in
respect of the patents referred to above?
There is no specific provision.
B. PROTECTION OF PLANT VARIETIES
1. Does your country’s law provide for the protection of plant varieties by plant breeder’s right,
plant patents or any other sui generis system for the protection of plant varieties?
The Seed Industry Act, which took effect on 31 December 1997, protects the rights of new
plant variety breeders.
2. (a) If your country is a party to the International Convention for the Protection of New
Varieties of Plants (UPOV), please indicate which Act or Acts of the UPOV
Convention your country has signed;  which it has ratified;  to which it has acceded;and to the standards of which its law conforms but to which it has not (yet) adhered.
(b) If your country is not a party to the UPOV Convention, does the protection offered to
plant varieties under your country's law conform to the standards of any of the Acts of
the UPOV Convention and, if so, which?
The Republic of Korea is not a party to the UPOV Convention, but the current Seed
Industry Act conforms to the 1991 Act of the UPOV Convention.
3. Please indicate whether concurrent protection under your country’s plant variety protection
law and its patent law is available (see also question A.4 above).
Protection is offered to asexually produced plants under both the current Seed Industry Act
and the Patent Act.  While protection of breeders’ rights is offered to both asexually and sexually
produced plant varieties under the Seed Industry Act, the Patent Act provides patent protection to onlyasexually produced plant varieties.IP/C/W/125/Add.9
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4. Please provide the following details of your country’s sui generis system for the protection of
plant varieties:
(a) the relevant laws and regulations and, if they have been notified to the Council for
TRIPS, a reference to the relevant WTO documents;
The relevant domestic law and regulation for the protection of plant protection are the
Seed Industry Act and its Enforcement Regulation.
(b) the definition of "plant varieties";
According to Article 2.4 of the Seed Industry Act, plant varieties are defined as "a
plant grouping within a single botanical taxon of the lowest known rank, where the
grouping can be distinguished from another plant grouping by the expression of at
least one characteristic, and is considered as a unit with regard to its suitability for
being propagated unchanged."
(c) the conditions required for protection;
Under Article 12, the Seed Industry Act, protection is granted to a variety, provided
that such variety has novelty, distinctness, uniformity, stability and a separatedenomination.
(d) the extent to which subject-matter that is already known to the public or identical to
what occurs in nature is protectable under your country’s sui generis system for the
protection of plant varieties;
Article 13.2 of the Act provides that, among the varieties which have already been
known at the time when species or genus of the plants entitled to variety protection
under the Act are determined in accordance with the Ordinance of the Ministry of
Agriculture and Forestry, a variety falling under any of the following category shall
be entitled to protection, provided that an application for variety protection thereof is
made within one year from the date of the determination.
(i) a variety registered or specified under the past relevant laws.(ii) a variety whose protection rights are registered in foreign countries.
(iii) a variety whose breeder and initial circulation date are verified.
(e) the extent to which protection can be based on characteristics of germplasm, as
opposed to characteristics of plant varieties derived from such germplasm;
Under the Seed Industry Act, a variety essentially derived from the protected variety
is also considered to be a protected variety and, therefore, cannot be protected as a
new variety.
(f) who is entitled to the rights;
Those who make an application for variety protection and registered their variety
protection right in accordance with the Seed Industry Act are entitled to the rights.IP/C/W/125/Add.9
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(g) the procedure for the acquisition of rights, including the authority in charge of
administering the rights;
The application for variety protection should be made to the Minister of Agriculture
and Forestry, who will designate examiners to review the application.  Once theapplication is accepted, the Minister of Agriculture and Forestry, registers the
establishment of the variety protection right.  Upon registration, the variety protection
right comes into force.
(h) the rights conferred;
Those who hold variety protection have exclusive rights to exploit the protected
varieties concerned on a commercial and industrial basis.
(i) exemption to the rights conferred, such as:
- acts performed for research or experimental purposes;- acts performed to develop new varieties of plants;- acts performed to commercialize such newly developed varieties;
- any "farmer's privilege" (e.g. acts perf ormed by a farmer on his own land in 
respect of seed saved from the previous harvest);
- acts done privately and for non-commercial purposes;
- compulsory licensing.
Under Article 58 of the Seed Industry Act, the effects of a variety protection right
shall not extend to any of the following:
- exploitation of the protected variety for self-consumption or for 
non-commercial purposes.
- exploitation of the protected variety for experimental and research purposes.- exploitation of the protected variety with a view to breeding other varieties.
- farmers’ collection of seeds of the variety for self-production purposes.
Article 68 also provides for a compulsory licensing system.
(j) the duration of protection;
Under Article 56 of the Act, the variety protection right shall expire at the end of the
20th calendar year following the date of the registration of its establishment.  For
ornamental trees and fruit trees, the right shall expire at the end of the 25th calendar
year following the date of the registration of its establishment.IP/C/W/125/Add.9
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(k) transfer of rights;
A variety protection right may be transferred by the act of assigning its share,
bequeathment, or other general succession.
(l) enforcement of the rights
Any person who infringes the variety protection right shall be punished by
imprisonment for not more than 5 years, or by a fine not exceeding 30 million won.
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