A Study On The Ecology Of Patent Law

The concept of the ecology of patent law, which entered people's vision with the appearance of the legal ecology concept, is the important component of the legal ecology. To put it briefly, the ecology of patent law refers to regarding sustainable development as the final goal, endowing patent law with the idea and requirement of environmental protection, coordinating the development of patent law and the environment, and finally realizing the harmonious development of the economic, social and environmental benefits. The ecology of patent law is the inevitable requirement of environmental protection integration and the implementation of sustainable development strategy. Under such a background, this dissertation carries a systemic discussion and study on the legal problem of the ecology of patent law, in order to impel the patent law not only to pay attention to promoting scientific and technological progress, but also pay attention to environmental protection, and finally make it play its function of promoting the harmonious development of economic, social, and environmental benefits.The logical organization of this dissertation: it consists of seven chapters.In Chapter I, The author attempts to discourse the basic content of patent system as well as the performances, causes and characteristics environmental problems, so as to lay the foundation for the starting of the text; the discourse in Chapter II is to provide theoretical and practical basis for ecology of patent law; from Chapter IV to Chapter VII, this dissertation discourses the key issue, namely, the discourse of how to reconstruct the relevant legal system of the existing patent law by realizing the ecology of Patent Law. Specifically, the basic idea in this dissertation is:Firstly, to discourse the content, function and background of the patent system, as well as the reasons and features of the environmental issues, and other issues, based on which, to clarify the meaning of ecology of patent law in the environmental era. Ecology of patent law in the environmental era is to reflect the idea and demand of environmental protection and in patent law, to make sure that patent law can not only promote the development of science and technology, thereby contributing to social and economic development, but will also promote the development of ecological protection, namely the coordinated development of economic, social and ecological benefits. The exposition of this part is to lay the foundation for the starting of the whole text.Secondly, to make in-depth discussion and research on the issues such as the necessity and possibility of the ecology of patent law, the purpose of which is to provide theoretical and practical basis for the ecology of patent law. The ecology of patent in the environmental era is not only the need of scientific and technological development, but also the urgent need of environmental protection. If the human society wants to continue to develop, the traditional unsustainable development model must be changed, and the sustainable development model should be chosen."Sustainable development"requires a profound reform of the traditional law, a reconstruction of the relationship between man and nature according to the idea of law ecology and the reflection of the environmental protection idea and demand in the law, so as to coordinate the development of law and environment and then realize the ecology of law. Solution of environmental problems is not only the goal of environmental resources protection law, including the patent law of promoting economic development through encouraging innovation and promoting scientific and technological progress, but also needs to adapt to this change and carry out ecological transformation. Environmental ethics and ecologism provide a theoretical basis for the ecology of the patent law, besides, the basic principles of multilateral environmental agreements and international environmental law provide a legal basis for it, which form the theoretical and practical basis for ecological reconstruction of patent law. Finally, the study on the reconstruction of relevant legal system in patent law is the focus and core of this dissertation. The realization of ecology of patent law needs the following changes to the traditional patent law: 1. To reconstruct the existing reviewing system of patent by introducing the concept of environment, that is, to give priority to those applications of environment-friendly technologies, and to relieve their relevant cost in order to encourage the creation of environment-friendly technologies and provide effective means for environmental protection. 2. To reconstruct the mandatory licensing system of the existing patent law by introducing the concept of environment, that is, based on the provisions of relevant multilateral environmental agreements, to take full advantage of the space left by TRIPS for its members and reform mandatory licensing system of patent. In the patent law, to stipulate that developed countries should transfer environment-friendly technologies to developing countries on favorable terms. Otherwise, for the protection of environment, the mandatory license can be presented to environment-friendly technologies. Through reconstruction of the system, China, as one of the developing countries can enjoy the preferential benefits in the international environmental protection, so as to promote the development of China's environmental protection cause. 3. Given the importance of inherited resources and traditional knowledge, especially their important role of maintaining biological diversity, to respond to the protection of genetic resources and traditional knowledge through the amendments to the patent law, in order to protect China's interests of related issues and promote the protection of China's biological diversity. Specifically, to add information disclosure system of the genetic resources and traditional knowledge patent application, to propose the use of strong-disclosure model, and to take the obligation to disclose information as the condition of the obtainment of patent and the validity of the obtained patent. 4. To reconstruct the biotechnology patent protection system under the guiding of risk prevention principle, to make sure that relevant provisions of the law take full account of the actual situation that the development of biotechnology in China is relatively backward and environmental problems are quite serious, to promote the development of biological technology as well as to take a cautious attitude to prevent the potential threat of biotechnology to the environment, such as genetic pollution. Specifically, on one hand, to explicitly stipulate that the biotechnology patent which may damage the environment will not be granted a franchise, especially to introduce"self-evaluation system of environmental impact"to control invention application and patent obtainment that may damage the environment; on the other hand, to stipulate that the biotechnology which has been awarded the franchise can be declared invalid through invalid declared procedure.