Study On Genetic Resources Benefit-sharing System And Our Patent Law Changes

The benefit-sharing system of genetic resources, because of its great scientific and economic value, is the focus of controversy around the world. In such cases, the system of law operation which core is , has been made as Domestic legislation in many countries. The newly revised 2009, "Patent Law" for the first time clearly defined by special legislation on the protection of genetic resources in China, for China is a big country of genetic resources. This paper, through the analysis of international standards of Benefit sharing of genetic resources, find the short coming and state the improvement of it.This paper is divided into four parts:The first part: the origin of knowledge of benefit-sharing of Genetic resources.The benefit-sharing of Genetic resources is the Compromise of Biodiversity conservation and commercial utilization of genetic resources. Before the analysis of it, this paper First introduced the origin of benefit-sharing "benefits" and "sharing" the definition of intension and extension of benefits, and benefit-sharing related to the subject and scope of knowledge, which is the basement of the following statement.The second part: the international standards of Benefit sharing of genetic resources. From the early 80s of the 20th century, genetic resources, benefit-sharing legislation gradually into the international field of vision, the United Nations, World Intellectual Property Organization, the World Trade Organization and other relevant international organizations, launched a positive international legislative activities, through the concerted efforts of the international community to "Convention on Biological Diversity" for the benefit sharing of genetic resources on behalf of the norms of international legal documents on the subject have passed, and the formation of a set of international standards.Although the "Convention on Biological Diversity," created by the mechanism of genetic resources and benefit-sharing has been praised in many countries and regions, however, the system level, specifically there are still some defects and deficiencies. There are three points their performance: First, although the "Convention" confirms the sovereignty of States over their natural resources, but countries the right to decide on access to natural resources is relatively; second, the "Convention" on the principle of prior informed consent provisions are too general, weaken the "convention" of binding; Third, the benefit-sharing, the "Convention" provides a framework of principles only, and does not provide an effective system design. With short discussion of the Feasibility of benefit-sharing of Genetic resources, we have drawn the conclusion as follows: Analysis of the feasibility of benefit-sharing arrangements is to see whether the development system to sharing the results achieved substantial fair and reasonable. But the result of a fair benefit-sharing is only the final link in the chain, so that the results depend on a fair and equitable benefit-sharing in fact the starting point and the distribution of fair and reasonable. Only in this way is in the benefit sharing of genetic resources for the country to obtain a fair and reasonable in fact a fundamental way.The third part: the comment ion of Benefit sharing of genetic resources in a typical state of domestic legislation:Issues related to genetic resources and benefit-sharing, in essence, providing genetic resources through domestic legislation to comply with "Convention on Biological Diversity" requirement, to achieve the goal of the problem. In this section, through the detail analysis of or each of the four national domestic legislation investigation of the Costa Rica, Malaysia, Australia, the United States, we reached some understanding of regularity: State legislation authorized through specific implementing regulations to establish the institutional framework; to amend the existing legislation of the country aware of the need for special legislation and related legislative activity began; comprehensive national legislation in many cases also need to add relevant implementing regulations perfect. This shows that the development of genetic resources, specific legislation has become the common understanding and realistic choice.The fourth part: the improvement of Benefit sharing of genetic resources in China:From the Typical national genetic resources from the domestic legislation of benefit-sharing, all States are based on their actual situation and the objective needs. Therefore, benefit-sharing of genetic resources in the establishment of China's legal system, you must understand the biodiversity and genetic resources in China the actual situation and the practical problems faced and the need for existing legislation on the status of our genetic resources and benefit-sharing laws to establish the need for a careful system of inspection and in-depth analysis.This section first describes the legal status of genetic resources in China and pointed out the existence of three major issues: First, the legal system is not perfect, the content is not detailed enough; second is related to genetic resources and the enactment of individual laws and regulations not comprehensive; third part of the statutory provisions is too principle, lack of maneuverability. The newly revised "Patent Law" added the source of genetic resources and disclosure requirements of the provision of information to fill a Chinese patent law provides no gaps in the genetic resources and intellectual property rights in China in recent years reflects the legislation into line with the principles of international treaties, but This provision still exists in certain specific norms defects.First of all, this provision does not break international standards. International standards are usually the minimum requirement, which means that a State may establish higher domestic legislation with international standards. Therefore, China can be combined with China's specific national conditions, take effective legislative measures to enact a domestic law above international standards, to promote the development of the field of genetic resources in China. Second, the newly revised "Patent Law" lack of disclosure of origin of genetic resources in the application object, the approval authority and review the contents. Again, violation of the "Patent Law" in the disclosure requirements of genetic resources in the case of sources of information not considered comprehensive. Finally, the new amendments to the "Patent Law" does not provide for the issue of genetic resources and benefit-sharing.Address these issues I propose the following four complete proposals: First, the "Patent Law" in the principle of national sovereignty over genetic resources to confirm. The two purposes: first, from the source control developed to developing countries for access to genetic resources; second, to confirm ownership of genetic resources, the principle of state sovereignty is to establish the source of genetic resources information disclosure regime. Second, in "Patent Law" in the concept of genetic resources defined clearly "country of origin" and "country of origin," the distinction between, on the applicable targets, specifically the approval authority and Examine greater details that increases in under appropriate conditions shared intellectual property rights. Basic concepts, application object, the approving authority, censorship is a clear prerequisite for effective implementation. Third, should strengthen the field of genetic resources and benefit-sharing (including its related intellectual property rights protection) and international legislation. Benefit-sharing of genetic resources in order to reasonably effective control in China is essential to establish a sound benefit-sharing mechanism. However, in certain exceptional circumstances, our benefit-sharing of genetic resources and regulation also requires the relevant international legislation. Only do domestic legislation and international legal system, the combination of the same problems faced by China and other countries need to be resolved to enhance cooperation and coordinate their positions in order to prevent the loss of genetic resources in China and theft incidents. Fourth, the prior informed consent and mutually agreed terms to balance the management system of genetic resources in China trade imbalance of power status of both parties. As the use of genetic resources in China is technical strength imbalance objective existence, so in this way will help to fair and equitable sharing of genetic resources in China by the use of benefits arising. However, the role of such controls should not be enlarged without limit, because it can not fundamentally solve the benefits of genetic resources, a reasonable allocation of the issue. Therefore, in the long run, the key to ensure a fair and reasonable for our benefit-sharing is to strengthen, improve and develop the use of genetic resources in China in the field of biotechnology such as research, development and production, accompanied by the genetic resource assessment, inventory and monitoring, contract drafting and negotiation, administration and other aspects of capacity building.Through the above four parts of the introduction, the author draws the following conclusions: Only the recognition and protection of genetic resources and genetic resource use are in the biological contribution to the development process and to balance their rights, to ensure they are the benefits of genetic resources to conduct a fair and reasonable share. So how to recognize and protect the contribution to the enjoyment and the right balance will require States to adopt national legislation to the progressive realization. At present, the "Patent Law" in the only source of information the disclosure of genetic resources to the provision on this point of view is far to the right balance to protect our genetic resources for this purpose, we should also join in the legislation and further genetic resources co-ordination between the interests of recipient countries and related benefit-sharing requirements. When the use of genetic resources is used in research and development in China, the need to use the relevant obligations are clearly defined in detail in the legislation. Meanwhile, China is a provider of genetic resources shall enjoy the rights and both sides benefit when the referenced standards or principles should be reflected in the legislation. Only this can effectively protect our genetic resources are not lost, not stolen, to the field of genetic resources in China to establish a real sense of the legal protection platform.