Research On Intellectual Property Protection Of Biological Genetic Resources

In the long evolution history of hundreds of millions of years in nature,under the influence of heredity and variation(mutation,gene recombination)and other genetic laws,organisms are constantly mutating and evolving while they are able to reproduce and continue species,thus giving birth to biological diversity.In the process of understanding nature,human beings constantly use and transform nature,and their breakthrough achievements in the field of biological resources are also examples.With the rapid development of genetics,molecular biology,genetic engineering,gene editing and other biological technologies,biological genetic resources have been continuously developed and utilized in agriculture,medicine,environmental protection and other fields,and the value of biological genetic resources has been highlighted.Is the so-called "tall trees catch much wind",the resources endowment and technology development is not balanced,developed countries and has advanced biotechnology has rich biological diversity of a suspicious,contradictions between developing countries,"biopiracy" behavior is reflected contradictions upgrade,biological genetic resources protection and utilization of gradually evolved from simple resource problems for complex political,economic and legal issues,interest game,rules of game,the political game are intertwined,flux.In order to regulate the protection and utilization of biological genetic resources,the international community,regional organizations,countries or regions have taken an active part in the legislative practice,and some legislative achievements have been achieved.Whether to adopt public law management or private rights protection on biological genetic resources,the international or national attitudes vary.In general,both in theory and in practice,it has been a consensus that biological genetic resources and biological resources as their carriers should adopt different protection methods.In this process,there is a high voice for the protection of the private rights of biological genetic resources.However,biological genetic resources have been treated as the common heritage of mankind,and through the protection ofprivate rights will be faced with the existing property rights system can not find a place in the embarrassing situation.In this regard,there are theoretical discussions on the protection of biological genetic resources in terms of property rights,contract law and intellectual property rights.However,due to the replicability and intangible nature of biological genetic resources as well as the disparity in strength between the two parties in negotiation,the protection effects of property rights and contract law may not be satisfactory.Under the situation that the unbalance of benefit distribution caused by the utilization of biological genetic resources is getting worse and worse,as a developing country with abundant biological genetic resources,it is more expected to rely on intellectual property rights,which has a higher level of protection.Based on the above background,this study focuses on the topic of "research on the protection of intellectual property rights of biological genetic resources".In addition to explaining the topic background,research review and research methods in the introduction,the text is divided into five parts to demonstrate the protection of intellectual property rights of biological genetic resources.The first chapter is "the definition and protection of biological genetic resources origin" parts: first,from the international law in this paper,the biological genetic resources,national or regional legislation practice of biological genetic resources and other aspects to analyze the connotation of the biological genetic resources,and then combined with biological resources,genes,genetic information,such as comparative analysis,clarify the nature of the biological genetic resources,and on this basis of biological genetic resources to scientific classification.Secondly,the reproducibility,intangible,regional distribution,imbalance and scarcity of biological genetic resources are analyzed.Finally,this paper analyzes the causes of the legal protection of biological genetic resources from the aspects of serious resource loss,the spread of biological plagiarism,and the imbalance of benefit sharing.The second chapter is the "legitimacy analysis of the protection of biological genetic resources intellectual property rights" part: with the biological geneticresources gradually by the attention of national legislation,what kind of biological genetic resources protection mode is widely controversial.The establishment of the principle of national sovereignty of biological genetic resources,the loosening of the principle of non-patent of biological resources and the establishment of farmers’ rights provide institutional conditions for the protection of intellectual property rights of biological genetic resources.The similarity between biological genetic resources and intellectual property objects and the matching between intellectual property rights and demands of genetic resource providers provide a legal basis for the protection of biological genetic resources’ intellectual property rights.The demand for genetic resources and the conflict of intellectual property rights in the development of biotechnology industry provide an empirical basis for the protection of intellectual property rights of biological genetic resourcesThe third chapter is the part of "extraterritorial practice of biogenetic resource intellectual property protection and its enlightenment to China".First,it reviews international legislative trends such as CBD,ITPGRFA,TRIPS,WIPO and UPOV conventions to clarify the historical position of biogenetic resource intellectual property protection.Second,the Andean community,the African union,asean and other regional legislative practice analysis;Thirdly,it analyzes the biogenetic resource legislation in developed countries such as the United States,the European Union,Switzerland and developing countries such as India and Brazil.Finally,this paper analyzes the enlightenment and reference of foreign legislation to China,and discusses the legislative basis of China’s biological genetic resources and ways of international cooperation.The fourth chapter is the reflection and response of the intellectual property protection of biological genetic resources.It systematically analyzes the qualitative problem of the right attribute of biological genetic resources,the definition of the right object,the determination of the right subject and the allocation of the right content.Especially the plight of intellectual property protection of biological genetic resources is demonstrated in detail.For example,due to the novelty and duration ofthe object protection of intellectual property rights,biological genetic resources are not suitable for the object of intellectual property rights.For another example,the diversity,uncertainty and group character of the subjects of biological genetic resources may conflict with the property of intellectual property right as a private right.At the same time,the current intellectual property rights are not applicable to biological genetic resources.However,the emergence of any new right type is always accompanied by controversy,in "the object directly to the biological genetic resources,sharing of intellectual property rights,intellectual property rights of prior rights" and other intellectual property rights protection ways,there are obstacles or disadvantages can establish a special biological genetic resources rights,and through the transformation of intellectual property system,be included in the intellectual property system.Chapter five is the construction of the intellectual property protection system of biological genetic resources.As a new kind of right,the right of biological genetic resources has no precedent in legislation.In public management and private law protection the protection legislation under the idea of combining the biological genetic resources of legislative principle,legislative model,legislative style shall be on the basis of the outline of the civil law protection of the right object,right content,subject and power,legal responsibility "as well as the public management in the"management institutions,biological exploration and database system,the access and benefit sharing control system,environment control system "and so on the synthetical system arrangement.Finally,on the basis of a systematic review of the whole paper,the author puts forward some forward-looking thoughts on improving the discourse power of China’s international legislation on biological genetic resources and promoting the introduction of special legislation on biological genetic resources as soon as possible.