Patent Protection Of Gene Technology

The rapid development of gene technology, which is characterized by theburgeoning of DNA sequencing, DNA recombinant technology, transgenictechnology, clone technology, gene diagnosis, gene therapy, gene medicine,gene chip, has a great impact on such ideology fields as sociology, ethnics,jurisprudence and others. At the same time, this development also bringssome problems which make it necessary for all the governments tore-scrutinize their respective patent protection systems. As for the great shockto the patent protection system brought by the gene technology, ourgovernment hasn't made a prompt response yet. In terms of legislators, thepatent protection of gene technology is to determine the scope and conditionof protection; while to the inventors, it is whether and how to get maximumprotection. This thesis first introduces the background knowledge of genetechnology and the patent protection status quo of gene technology in ourcountry, then by some specific cases in patent applications, the thesisdiscusses several topics which are highly controversial and without clearprovisions in Chinese Patent Law. For example, is gene scientific discovery orinventions? Are there patentable subject matters in gene diagnosis and genetherapy? Can transgenic animals and plants get patent protection? With thesequestions, the thesis makes a deep comparison research on TRIPS andsituations of gene technology patent protection in the United States, Japan andEuropean countries. Finally, this thesis puts forward some basic principles andspecific strategies on the gene technology patent protection in China. Theultimate intention of one country's patent system is to promote thedevelopment of this country's economic and science and technology. So thepatent legislation of our country should not only conform the trends and rulesof international patent protection, more importantly, it should take the factorthat China is a developing country into fully consideration. So it should alsoaccommodate with our country's science and technology innovation andindustrial level and needs. We should take a prudent attitude toward theobjectives protected by patent and conditions for patentability, avoiding blindlyfollow developed countries. Based on the thorough discussion on the basicprinciples of gene technology patent protection in China, such as statepatentability, gene technology vs protection ordre public or morality, principle ofbenefit balance and prevention of gene technology patent abuse, this thesissuggests that human gene and related gene technology, methods for humancloning and cloned human being and human embryonic stem cells beyond 14days should be excluded the scope of protection temporarily, and these shouldbe protected gradually when appropriate. This thesis also suggests that properand detailed patent censor criterion should be established, for example,Novelty and non-obvious criterion to categorize gene technology patents,censor criterion to improve the utility of gene technology fundamental research,censor criterion suitable for gene technology applied research, sufficiency ofdisclosure and over restricted claims. As all we know, the international genetechnology patent is at war. The United States is in predominance and Europecountries are following it tightly. Japan want to make it a leader in Asia, andChina should keep up with them despite of the difficulties. In conclusion weshould take advantage of the territory nature of patents to establish genetechnology patent protection strategy suitable for China, and protect ournational industries with our national intelligence to facilitate the rapiddevelopment of science and technology in China.