The Patent System To Protect Our Genetic Resources

Developed countries take advantage of to use its bio-technology development on utilization of genetic resources for biological huge economic profits. But as the countries of origin and provision of genetic resources, providing biotechnology foundation-a unique genetic resources, should be in the sharing of benefits process. Although China has abundant biological resources, but the level of independent biotechnology can not meet the effective use of these resources needs. Therefore, domestic legislation on the protection of genetic resources should increase the consultations of the initiative in the negotiations to ensure a fair sharing of the benefits of genetic resources. And it is based on consideration of the interests of national resources and institutional arrangements.The study of foreign legislative practice, and the perspective from the legal, economic, philosophical and historical experience are illustrated to the transion and rationality which use the form of the patent system about genetic resources at this stage. On the newly revised "Patent Law" and "Rules for the Implementation of the Patent Law", there are some limitations of the tips related to provisions on the protection of genetic resources.Protection of genetic resources on institutional arrangements, this paper argues that we need clearing principles of genetic resources and sovereignty, the right to determining the ownership of genetic resources, and establishing the national genetic resources management committee to deal with the patent application relates to genetic resources management practices.Secondly, after the ownership of genetic resources, about genetic resources belonging to China, in the patent application before the patent applicant, patent applicants should not only fulfill the provisions of biological material in the existing patent system will be deposited in the National Patent Administration Department under the depository institution, and providing preserved and the viability proof, but also to provide the Commission issued national genetic resource management and benefit sharing of genetic resources, and registration agreement. The national genetic resources management would agree to and sign the Benefit-sharing agreement, in a reasonable and fair attitude,which the benefits of the content that the patent applicant has the right to use genetic resources, or to genetic resources must be involved to provide the country development and utilization of genetic resources as the form of the benefits of content.Finally, regarding patent infringement of genetic resources, in addition to common patent infringement of genetic resources can be applied directly to the current "Patent Law", but involves the indirect infringement patent of genetic resources, in particular, use of genetic resources development and utilization of biological research illicit behavior, you can choose for breach of contract and patent infringement. Breach of contract depends on the terms of benefit-sharing agreements, patent infringement in need of liability provisions of domestic legislation. "Patent Law" in the calculation of standard of patent infringement liability based on infringement of the rights holder for being the actual loss suffered as a standard, the same applies to the indirect patent infringement genetic resources:human rights violations suffered by the actual loss is determined to perform benefit-sharing agreement that benefits received is based. In addition, in terms of the patent application to benefit-sharing agreements on genetic resources and genetic resources in the negotiation stage of the process of recognition of patent infringement, opinion of experts will be introduced in domestic law.Eventually a complete management system of genetic resources will protect the interests of the countries of origin and the provision, but at this stage the most effective way is to resolve a serious drain on our urgent problems with the patent system of the improvement of genetic resources.