Protection Of Genetic Resources By Patent Law

Genetic resources are a type of resources different from ordinary natural resources. The subject of genetic resources is complex as genetic resources and their functional units can be copied. As the core value of genetic resources lies within their genetic information which is the object of the intellectual property rights, it qualifies for intellectual property rights protection. But the monopoly of intellectual property rights endows the right holder the exclusive benefit on genetic resources. And the regionalism of intellectual property makes for an uneven level of protection of genetic resources among countries. Legislation on genetic resources focused on patent law, with emphasis on the disclosure of origin or source in patent applications.In the past twenty years, the phenomenon of"biopiracy"of genetic resources, meaning that developed countries exploit the biological resources of developing countries, has become a serious issue. Coordinating the requirements of international legislation is becoming increasingly urgent. For this reason, the developing countries call for a reform of the international patent law. In July 1992, more than 150 countries signed the Convention on Biological Diversity (CBD), which shows that the protection of biodiversity has found its way into globalization and juridification. In the convention, important conceptions, such as"genetic resources"were defined. CBD endows the contracting parties the means of legislation, administration and policy to standardize genetic resources access and benefit sharing. It establishes the principles of State Sovereignty, Prior Informed Consent and Benefit Sharing.China is a country rich in genetic resources which has suffered a lot from biopiracy. China signed the Convention on Biological Diversity in 1993, and has the obligation to transform the content of the convention into national law. At the end of 2008, China revised its Patent Law and introduced the term"genetic resources"into the law. At the beginning of 2010, China revised"Implementing Regulations of the Patent Law"and the"Guidelines on Patent Examination". Through these three laws and further regulation, the protection of genetic resources in China has been improved.Europe on the other hand is a region rich in biologic diversity that has a developed biological technology. In 1998, the EU enacted the"Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the Legal Protection of Biotechnological Invents". This is the sole legal document of EU until now directly ruling the access and disclosure of origin or source of the genetic resources. Due to the nature of EU directives, its national implementation varies between member states. In Europe, the ongoing discussion about the legal protection of genetic resources is intensive, but legislation is cautious and reserved. Yet at present, the research of Chinese legal scholars into the legislation of genetic resources in Europe is limited.This article tries to make a comparative research to the patent law protection of genetic resources in China and in EU. The article is divided into six parts. The first part is an introduction to the concept, characteristics and values of genetic resources. The second part focuses on the feasibility of protection of genetic resources by patent law. The third part introduces international law concerning genetic resources, especially the Convention on Biological Diversity, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (Bonn Guidelines). Part four is about the patent law protection of genetic resources in China, particularly the new revision of Chinese patent law. The fifth part introduces the patent law protection of genetic resources in EU, especially Directive 98/44/EG. In part six, a comparative analysis between legislation on genetic resources in China and the EU puts forward the advantages of the European implementation and shows how it might serve to further improve the Chinese patent law.