This blog post examines the patentability and legal/ethical issues surrounding animal inventions born from biotechnology. Are animal inventions truly eligible for patents?
As the importance of science and technology has grown in the 21st century, ‘patent rights’ have also become a crucial concept. Consequently, the scope of inventions eligible for patents has broadened. Beyond traditional inventions of objects and processes, various inventions are now patentable, including inventions for new uses of existing objects, inventions related to e-commerce arising from computer development, inventions involving microorganisms (covering not only the microorganisms themselves but also their production and use methods), and plant inventions. However, while animal inventions currently lack specific provisions under patent law, the rapid advancement of biotechnology has led to a surge in patent applications for animal inventions. Consequently, discussions on whether to grant patents for animal inventions are underway globally. Animal inventions refer to organisms that have acquired new traits through genetic manipulation, such as sheep that secrete insulin in their milk. While the United States and Japan already have case law recognizing patents for animal inventions, Europe does not. Amidst these differing positions, Korea needs to carefully consider what stance to take.
Before discussing the possibility of animal patents, we first examine the essence of patents and patentable inventions. We then assess whether animal patents align with the purpose of patent law and meet the requirements for an invention under patent law to determine their feasibility. According to Article 1 of the Patent Act, patents aim to promote technological advancement and contribute to industrial development by protecting and encouraging inventions and facilitating their utilization. Patent rights last for 20 years, during which the inventor holds exclusive rights. During this period, the patent holder is granted the right to profit from the invention. After this period, the technology is disclosed to prevent redundant investment and research, allowing third parties to utilize it as technical literature. This aligns with the fundamental purpose of patent rights: to induce the development of improved technologies.
As mentioned earlier, animal inventions are the result of biotechnology advancement. Inventions obtained by biotechnologists through significant time and effort deserve exclusive rights, just like other inventions. It is unjust that their rights are not protected simply because they involve animal inventions. If patent rights are not granted, scientists would only continue research to satisfy pure intellectual curiosity, which would significantly hinder biotechnology development. The issue lies in the profit rights stemming from exclusive rights. During the patent term, profits can be derived from the invention. In the case of animal inventions, the fact that living creatures are simply used as profit-making tools provokes opposition from animal protection advocates. However, given that animals are already used as profit-making tools for meat, leather, and other products, rejecting them solely because of a new profit-making tool like patent rights is unjust. Just as animal rights advocates oppose meat consumption and fur/leather products yet acknowledge their continued necessity, we must recognize the necessity of animals invented through biotechnology advancements and respect the inventor’s rights to them.
Under patent law, an invention is defined in Article 2 as “a creation of a technical idea utilizing natural laws, which is highly advanced.” From this, four requirements for an invention under patent law can be inferred: utilization of natural laws, technical idea, creativity, and high advancement. In other words: First, an invention must utilize principles or laws existing in the natural world, not mental functions like human emotion or thought. Second, an invention must be a concrete technology, a conceptually feasible idea. Third, an invention must be created by humans and distinguished from a discovery. Fourth, the invention must be of a high level. In the case of animal inventions, genetically modified animals are particularly often discussed. Genetically modified animals are those created by introducing foreign genes into fertilized eggs to produce desired traits. They cannot occur naturally and require artificial genetic manipulation, making them feasible technologies that satisfy all requirements for an invention under patent law. Therefore, genetically modified animals should be patentable. However, for animals that can be bred using traditional mating methods, the requirement of utilizing natural laws may become problematic. While there are no precedents worldwide for such animal inventions, patent applicants for these animals bear the burden of proving that the subject animal cannot occur naturally. If sufficient proof is provided, even inventive animals reproducible through traditional breeding methods could be patentable. This is because, although natural breeding is possible, their special traits are the result of human artificial research.
After examining the essence of patent law and the requirements for inventions regarding the patentability of animal inventions, ethical and moral issues can be raised next. While precedents exist granting patents for animal inventions, even in the United States—the most open to animal patents—the voices of opponents are significant. Opponents argue that the creation of living organisms is considered the domain of God, and humans legally performing this raises moral issues. Furthermore, they express concern about environmental destruction or unpredictable side effects when artificially modified animals are released into the natural world. Religious groups also view the modification or creation of living organisms as a challenge to God’s domain, arguing that the commodification and industrialization of animals debases the value of life. However, biotechnology research does not aim to debase the value of life; rather, it seeks to enhance the value of life from a human perspective. An example of an animal invention patented in the United States is bacteria that decompose oil. This bacteria was actually used effectively during the Taean oil spill accident. It played a beneficial role in protecting the marine ecosystem and saving the organisms belonging to that ecosystem during an unavoidable accident. Thus, the industrial application of biotechnology through patent protection will contribute to enhancing the value of living organisms, not only through potential environmental benefits but also by expanding biotechnological inventions. Furthermore, the fundamental purpose of the patent system is not the commercialization of inventions but the promotion of invention. Therefore, animal inventions should not be viewed solely as commercialization of living organisms but as a means to advance biotechnology, warranting an open stance.
The Korean Intellectual Property Office (KIPO), which currently lacks legislative precedents and case law, should maintain a cautious stance regarding inventions in the biotechnology field and animal inventions. For animal inventions, we have already examined that they meet the requirements for an invention under the Patent Act and align with the Act’s purpose. Therefore, patents should be granted if the patent requirements are satisfied, but inventions involving the human body or contravening public order and morals, as explicitly stated in existing law, should not be patented. The stance of each country on animal inventions will be closely linked to national biotechnology competitiveness going forward. We hope that by adopting an open yet cautious position on animal inventions, Korea will become a future leader in biotechnology.
