The purport of Article 64 of the vegetable Variety Protection Act / Whether a prior user who is entitled to a non-exclusive license under prior use pursuant to Article 64 of the vegetable Variety Protection Act refers to a person who is a separate breeder different from the breeder of the protected plant variety for which an application for plant variety protection is filed or a person who becomes aware of the protected plant variety from a separate breeder

Under Article 64 of the New Plant Variety Protection Act, a prior user who first files an application for plant variety protection for the same plant variety is entitled to plant variety protection under the earlier application system, and a prior user who runs or prepares a business of exploiting the protected plant variety at the time of application for plant variety protection and a variety protection right holder who is entitled to non-exclusive license for prior use pursuant to the above provision, barring special circumstances, means a prior user who is separate breeders or becomes aware of the protected plant variety from the breeder of the protected plant variety for which the application for plant variety protection has been filed, unless there are special circumstances in light of the purport of such provision and the content of the language.

Article 64 of the vegetable Variety Protection Act

Plaintiff 1 and one other (Attorney Yoon-soo et al., Counsel for the plaintiff-appellant)

Defendant

Gwangju High Court ( Jeonju) Decision 2014Na449 decided October 30, 2014

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Article 64 of the New Plant Variety Protection Act provides that “A person who runs or prepares to run a business of exploiting a protected plant variety in the Republic of Korea after having become aware of the content of the protected plant variety for which an application for plant variety protection was filed without knowledge at the time of the application for plant variety protection shall have a non-exclusive license on the protected plant variety protection right applied for within the scope of the purpose of the business in which the protected plant variety is exploited or prepared.” The above provision aims at coordinating interests between the pre-user who runs or prepares to run the business of exploiting the protected plant variety at the time of the application for plant variety protection under the earlier application system in which only the person who first filed the application for plant variety protection is entitled to plant variety protection and the holder of the protected plant variety protection right at the time of the application for plant variety protection. In light of the purport of the provision and the text thereof, it is reasonable to deem that a pre-user who is entitled to a non-exclusive license under the prior use under the above provision as separate breeders from the breeder of the protected plant variety applied for plant variety protection.

2. According to the reasoning of the lower judgment, the lower court determined that, even if the Plaintiffs were to have committed an act of propagation, sale, etc. of the instant variety in Korea prior to the Defendant’s application for plant variety protection, which was the breeder of the instant plant variety as to the “Yeong Pul,” as indicated in its holding, the Plaintiff’s purchase of seedlings from the Defendant, as long as the instant plant variety was reproduced in a manner known by the Defendant, and thus, constitutes “a person who was aware of the protected plant variety from the person who bred or bred the protected plant variety without knowledge of the protected plant variety applied for plant variety protection at the time of filing the application for plant variety protection,” the lower

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)