Research On The Intellectual Property Protection Of The New Plant Variety

Innovation in the field of agriculture has been important to human civilization since farmers first began to cultivate crops. Generally speaking, agriculture is the dominant field of economic activity for many countries. Even in nations where the agriculture is a less significant component of economic activity, there remains extensive considerations from the government decision-making and public interests in maintaining farm communities and promoting food security.Success or failure in producing foodstuffs is a life or death matter for large parts of the world’s population. Increasing crop yields has long been a goal of agricultural research and development (R&D). Plant varieties play an enormously important role in human affairs. With the advent of the knowledge-economy, the research and development of the plant varieties in the field of agriculture has been in the reach of intellectual property rights. Hereafter, the geological indication、business secret as well as the new plant variety have been the academic focus of the international intellectual property rights. Among these forms of the agricultural intellectual property right, the new plant variety is the crucially important subject matter.However, for the development and innovation of the new plant varieties, are there other factors shall be considered apart from the yield increasement? As the important entity of the main stream R&D for the new varieties, the balance mechanism between the agribusiness enterprises’ interest expectations and the globally public interest has been questioned a lot. Is it performed reasonably satisfactory or not? For the traditional knowledge and biological genetic resources, what kind of gambling and competition shall be developed in the international arena?...... This thesis makes systemic discussion and analysis for the problems above, in the hope of introducing new considerations to the protection of new plant varieties for China whose agriculture is of great importance in economy activities.There are six parts in this thesis with the introduction of this thesis and the following five chapters included. There are four parts in the introduction. The author mainly introduces the research background and the practical significance of this research. The general introduction of the core subject matter-new plant varieties is in the part two. Part four mainly concerns the induction and the research means of the related research as well as the author’s chief points and the inventive aspects.The main part of this thesis has five chapters. Chapter one addresses the theoretical analysis as well as the problems and the status in quo of the new plant variety as a matter of intellectual property law. Starting with the centralized posture of the seed industry and biopiracy issues that take place in succession, the author undermines the issues behind the existing international new plant variety protection system. The author believes that the high standard protection model to the commercial breeders’ rights accelerates the imbalance between the developed countries and the developing countries. The author concerns much of the arguments regarding private rights, which has a paradox to the promotion of the new plant variety’s breeding work and the hindrance for the overspread and the extension in worldwide circulation. Based on this analysis, the author illustrates her preferred protection model--the protection model that could make a balance between the commercial breeders’ rights and the farmers’rights. That is to say, a good mechanism shall be able to make a balance between the private person’s right and the public rights during its operation to the most. After making such a clear understanding, the author shifts to the reconsideration of the existing intellectual property rights especially in the field of new plant variety protection. Upon the high standard private rights predication of th e TRIPS Agreement and the decision-making mechanism, the author contemplates that there is rules deficiency of the TRIPS Agreement in the compromise of the private rights and the public interests.Chapter two concerns about the new plant variety protection model of United States and the European Union. The author believes that whatever the protection model they have chosen, dual or special, they share the same characteristic that making possible comparatively large amount of biological inventions be conferred intellectual property right protection, no matter the forms it may awarded. The fairly preferred rules and case laws set much better property rights environment and market advantage for the agri-biological enterprises and the pharmaceutical industry, helping them to be the biggest interest holder in an integrated world economy.Chapter three shifts to the new plant variety protection and model of the developing countries as well as China’s protection status in quo and issues in this field. The author thinks that the international intellectual property rights with the new plant variety protection included is not unfavorable to the developing countries. Because of this, the developing countries passively accept the developed countries dominance of the rule-making intellectual property rights. Under the influence of the TRIPS Agreement and other bilateral agreement with the developed countries, the developing countries undertake the TRIPS-Plus obligations, making their new plant variety protection and agricultural development in great dilemma of stagnant. Apart from that, the author speaks highly of the legislative of India’s new plant variety protection, which purport to provide a good balance between the breeders’ rights and the farmers’ interests, so as to be good enough to be an example for the countries that share the common country situation. The author choose to discuss China’s protection system from legislative and practical aspects. The upgrading of the legal level from the existing regulation to a formal law is a must. Besides that, the relative the rules and regulations shall be as specific and clearance as reasonably possible. Practically speaking, China shall be concise to the entry to the 1991 version of the UPOV Convention.Chapter four talks with the international legislative in the protection of new plant variety. TRIPS Agreement and the UPOV Convention constitute the main framework of the international rules concerning this field. Particularly the 1991 version of the UPOV Convention issues the plant breeder’s exclusive rights to a patent-like scope, while the farmers’ rights are limited into a small scope. Although under the strong recommendation of the developed countries, this version has achieved the big application, the efficiency first doctrine without the same concern of the fairness has been challenged a lot from the international community.Chapter five is a pronounced shift of the research concentration from the abroad to China. Legislatively speaking, China’s protection regulation and judicial interpretations of relevance are the main rules in the new plant variety protection. However, China’s rules in this field is far from perfect. Firstly, the author suggest the legislative authority upgrading the legal phase of the existing rules to law. Secondly, the rules and regulations shall be as specific and clearance as reasonably possible. Thirdly, the government shall be concise to the entry to the 1991 version of the UPOV Convention. Practically, the author discusses the preachment and the protection to the new plant variety both from administrative and judicial practice, in hopes that provide some advices for China’s new plant variety protection.The main creative research lie in two aspects:firstly, the author pays much attention on case study. Concentrating on the corresponding cases, the author deems to find out the declination and attitudes of the USA and the EU countries. This research has the direct value both in academic and in practice. Secondly, this thesis concerns not only the regulations of the different countries,but also considers the rationale behind the legislative actions, which could possibly provide some useful suggestions for the construction and improvement for China’s legislation. Owning to the limited research capability, the author understands that there are many problems and questions unanswered. The author sincerely hope that these regrets could be made up of during the further research and learning processes.