Advances in biotechnology in the 21st century have led to an increase in animal inventions. This raises the question of whether granting patent rights to animal inventions is consistent with the purpose of patent law and ethical standards.
As the importance of science and technology has increased in the 21st century, “patent rights” has also become an important concept, and the scope of inventions recognized as patents has expanded. In addition to inventions of existing objects and methods, a wide variety of inventions are now patentable, including inventions of new uses for existing objects, inventions related to e-commerce due to the development of computers, inventions of microorganisms that apply not only to microorganisms themselves but also to methods of producing and utilizing microorganisms, and inventions of plants. However, animal inventions are not yet covered by patent law, but the rapid development of biotechnology has led to a surge in patent applications for animal inventions, and there is a global debate about whether animal inventions should be patented. An animal invention is an entity that has been genetically engineered to have new characteristics, such as a sheep that secretes insulin in its milk. The United States and Japan already have precedents that recognize patents for animal inventions, while Europe does not. With these differing positions, Korea needs to carefully consider what position to take.
Before discussing the possibility of patenting animals, we will first look at the nature of patents and patentable inventions to determine whether animal patents meet the purpose of the Patent Act and whether they meet the requirements of an invention under the Patent Act. According to Article 1 of the Patent Act, the purpose of patents is to promote technological progress by protecting and encouraging inventions and promoting their utilization, thereby contributing to industrial development. Patent rights last for 20 years, during which time the inventor is granted exclusive rights to profit from the invention, after which the technology is made public to prevent duplication of investment and research and to allow third parties to utilize it as technical literature. This is the essence of patent rights: to encourage the development of improved technology.
As mentioned earlier, animal inventions are the result of biotechnology advances. Biotechnologists have invested a lot of time and effort into these inventions, and they deserve to be granted exclusive rights just like any other invention. It is unfair that their rights are not protected because they are animal inventions. If patent rights are not recognized, scientists will be forced to continue their research purely out of intellectual curiosity, which will greatly hinder biotechnology progress. The issue is the right to profit from the exclusive rights. In the case of animal inventions, animal rights advocates object to the idea that animals are simply being used as a source of profit. However, animals are already being used as a source of profit for their meat, pelts, and other products, and it is unfair to deny them a new source of profit simply because of patent rights. Just as animal rights activists oppose the use of meat, fur, and leather products, but still use them out of necessity, we should recognize the need for animals invented as a result of biotechnological advances and recognize the rights of their inventors.
Under patent law, an invention is defined in Article 2 of the Patent Act as “an inventive step towards an improved technical idea using the laws of nature.” From this, we can infer four requirements for an invention under patent law: use of natural law, technical idea, originality, and inventive step. In other words, first, the invention must utilize a principle or principles that exist in the natural world, not a mental function such as human emotion or thinking; second, the invention must be a conceptual idea that has the potential to be realized as a concrete technology; third, the invention must be made by a human being, which is distinct from discovery; and fourth, the invention must be of high level. Fourth, the invention must be of a high level of inventive step. In the case of animal inventions, transgenic animals are particularly relevant. Transgenic animals are animals that have been engineered to have a desired trait by introducing a foreign gene into a fertilized egg; the trait cannot occur naturally and must be manipulated by artificial genetic manipulation; the technology is feasible; and it meets all the requirements of an invention under patent law. Therefore, transgenic animals should be patentable. However, for animals that can be reproduced by traditional breeding methods, the requirement of taking advantage of a law of nature can be problematic. While there is no worldwide case law on the invention of such animals, the burden of proof is on the patent applicant to prove that the animal covered by the application cannot occur naturally. If sufficient proof is made, invented animals that can be reproduced by traditional breeding methods may also be patentable, because although they can breed naturally, their special traits are the result of human research.
Having reviewed the nature of patent law and the requirements of invention for patentability of animal inventions, we can next raise the ethical and moral question. There are precedents that have granted patents on animal inventions, and even in the United States, which is the most open to animal patents, there are vocal opponents. Opponents argue that the creation of living things is considered to be the domain of God and that it raises moral issues for humans to legally do so. They are also concerned about environmental degradation and unpredictable side effects when artificially engineered animals are released into the natural world. Religious groups also view the modification or creation of living things as a challenge to the realm of the divine, and argue that commodification and industrialization using animals degrades the value of living things. However, biotechnology research is not intended to degrade the value of living things, but rather to enhance their value from a human perspective. An example of an animal invention that has been patented in the United States is a bacterium that breaks down petroleum. This bacteria actually came in handy during the Gulf of Thailand oil spill. It played a beneficial role in protecting the ecosystem of the ocean from the unavoidable accident and saved the life of the creatures in that ecosystem. In this way, the industrial application of biotechnology through patent protection will contribute to the expansion of biotechnology inventions, not only for the potential environmental protection benefits, but also to increase the value of living things. Furthermore, the fundamental purpose of the patent system is the promotion of invention, not the commercialization of inventions. Therefore, we should be open to animal inventions as a means to promote the development of biotechnology, not just the commercialization of living things.
As there is no legislative precedent and case law yet, the Korean Intellectual Property Office should maintain a cautious attitude towards inventions in the biotechnology field and animal inventions. In the case of animal inventions, we have already seen that they meet the requirements of an invention under the Patent Act and the purpose of the Patent Act. Therefore, as long as they meet the patent requirements, patents should be granted, but patents should not be granted for inventions that use the human body or violate public order and morals as stated in the existing law. A country’s stance on animal inventions will be closely linked to its biotechnology competitiveness in the future. With an open and cautious stance on animal inventions, we hope that Korea will become a biotechnology leader in the future.
