Patent Protection And Equilibration In Genetically Modified Production

21 century belongs to biotechnology. The biotechnology headed by Genetically Modified Technology (hereinafter referred to as GMT) will be comprehensively used in the field of agriculture, pharmacy, therapy, energy, environment protection etc. But the technical feature of GMT transplanting the outside gene into any organism including mankind and the technical limit of safety make GMT a subject of central concern in the fields of ethics, human health and environment etc. This paper is divided into four chapters. In chapter 1, on the basis of introducing the GMT briefly, the author sums up the arguments into two focuses: safety risks and property rights. Through the method of comparative analysis and background observation, the author draws the conclusion that the ethics and safety of GMP is just the surface of the argument and the bone of contention is the rights to the benefit of the GMP, including patent protection, protection of Genetic Resources sovereignty rights and the benefit equilibration in the GMP. In chapter 2, through the research of the patent system origins and evolution and analysis of patent theory, the author comes the conclusion that the utility is more important than justice in the patent system. Based the conclusion the author deduces that in order to grant a new technology patent protection the patent law would have been explained or its rules have been changed to meet the need of benefit equilibration since the patent system is utilitarianism. Therefore, the author finishes the theoretical reasoning that the possibility and inevitability of patent protection to genetically modified technology. Moreover, the author adopts the empirical method and introduces a series of judicial precedents for granting the GMT with patent to corroborate the theories of the ex-text analysis. At the national level, the target of patent system is to encourage innovation and to attract investment in the field of technology. Ultimately, the patent system is used to promote the development and the extension of the technology among the community. However, at the international level the international protection system of the patent gradually changes into a means of realizing national interest. The result in the fields of GMP is that extends local criteria of GMP patent protection to all over the world. The international protection system of the patent just focuses on sustaining and strengthening their advantages in GMP, but the dilemma of under-development countries is completely neglected. And thus the system gradually deviates from the value of justice and inclines to manipulate and control the advanced technology in order to capture profits. In chapter 3, On the basis of research in the actuality of international protection system of the patent, the author demonstrates the indispensability of balancing the benefits between the developed countries and the developing countries.Initially, the cooperation mode in the GMP is that the developing countries provide the developed countries with their plentiful Genetic Resources on which developed countries research and test, then apply for patent and develop market. However, the developing countries require nothing from the whole process. Considering the dependent connection between Genetic Resources and the GMP, the developing countries have strengthened the protection of Genetic Resources. The above-mentioned measures induce the biotechnology companies of the developed countries to acquire Genetic Resources by illegal methods frequently, which have been sharpening conflicts between developed countries and developing countries in the field of GMP. On the basis of research into the situation of international cooperation in GMP, the author puts forwards that the legal status and property rights of genetic resources should be clarified firstly, and then a benefit sharing system should be established. Referring to the theory of invention on duty and looking into the dependent correlation between the Genetic Resources and GMP, the author presents the equilibration mode in theory: the owner of Genetic Resources and the holder of GMP should stipulate each share in the future patent of GMP through an agreement. To strengthen the enforcement of the system, the author advises to harmonize the international protection system of intellectual property rights with that of Genetic Resources. If any one applies for patent, he must enter into the agreement in advance and prove the Genetic Resources used in GMP legal. On the basis of research above, in chapter 4 the author proposes that our government should play a more positive role since GMP has high risks and great benefits at the same time. The government should provide a proper system to encourage GMT and protect the Genetic Resources.