Gene Patent--How Can We Confront The "Biopiracy"?

According to the traditional patent regime, gene cannot be authorized patent as it can be found in nature. But, with the growth of gene technology and the high-speed development of the biological industry, the rule got greater and greater challenged. The biological enterprises require the patent to protect their research and commercial profits, and some scholars also suggest that gene's character need redefined, even rethink the rationality of the "discovery cannot be authorized patent" rule. Upon the two pressures, patent departments and courts of the nations have to recensor the patent question of gene. In some countries with outstanding gene technology and gene industry, gene patent have been accepted step-by-step.While, the obstacles of gene being the objection of patent, as also the first matter that gene becoming patent protected should overcome, are all the fundamental rules of the patent regime, such as discovery cannot be authorized patent, the patented matter should have novelty, nonobvious, and utility, etc. If the gene patent accepted, the affection to the traditional patent regime is fatal, and the affection to other society aspects is even unaccountable, such as the biopiracy. This problem must be confronted in the gene patent discussion.Given the above hints, in the prelim the author do not introduce the gene and its patent too much, instead, he directly show the question. The first part is totally about the danger of the biopiracy resulted from the casual patent authorization on plant and gene. The second part mainly discusses and appraises the cases and the legislations in U.S. and E.U. about the gene patent, after a short introduction of the necessary technological knowledge. Then the author points that the gene sequence is the matter originally found in nature, the above cases and legislations ignored the fact, mixed concepts and distort the loge in order to let the gene patent pass, whose result is, the sacrifice of loge and the contravention of the traditional patent rules.To analysis problem wholly, beginning from the research about the rationality of the "discovery cannot be authorized patent" rule, the discussion of the third chapter lasts to the essence of the patent regime. The author point that the "discovery cannot be authorized patent" rule is not a natural doctrine, it's decided by the essence of patent regime; And the essence of patent regime is not to stimulate the research but balance the benefits of industry and the whole society. Authorization the gene patent could destroy the balance, so discovery cannot be protected by patent; In the other hand, owing by the balance, when the biological industry need the patent to protect the gene discovery and they own enough affection to the legislators, the "discovery cannot be authored patent" rule can also be surpassed. Now this can be seen in U.S. and E.U. And because of their dominant status in the international IP protection, the gene patent they found may be the only way the other countries could choice.To reckon the disadvantage arising from the gene patent, the fourth chapter mainly suggests some countermeasure, such as the prior right, cooperation development based on the allege of the national sovereignty, and the Farmers' rights, etc. After the chapter, the last part gives some prospective about the gene patent.The reference is mainly foreign papers. Contrast to other domestic papers with the same article, the light about the essence of patent regime in the paper is relatively more novel. Especially the introduction about the farmers' rights, is rarely seen in the domestic papers. And the criticism to the gene patent is powerful. These could be the best lights in the paper.