Study On Patent System And The Protect Of Genetic Resourses

The human society has entered the gene time and the genetic resources (GR) have become the special resources to create wealth. At present, the GR have become one of the ordinary standards to measure the composite national power. Holding and utilizing the GR have been becoming a hot issue in the North-South relationship. Most GR in the world are located in developing countries, while biotechnology companies with economic and technical power to utilize GR are mainly from developed countries. In general, biotechnology companies have free access to GR of developing countries, and make huge profits from their commercial utilization. However, the countries providing GR have no chance to share all kinds of benefits arising out of the utilization of the GR in a fair and equitable way. It's time to protect the GR.From the legal perspective, the essential problem lies in the different understanding of the legal status of GR under international law from two kinds of country group. Under this context, CBD introduced a new concept—"Common Concern of Humankind". The concept is accepted as the precise expression of the legal status of GR under international law because it successfully balances the both opinions of "global commons" and "the permanent sovereignty over their GR".Before the unified laws and regulations referred the protection of GR, it is a good chance to protect GR by the intellectual property because of the close relationship of the intellectual property rights (IPRs) and biotechnology. However, the protection of IPRs which controlled by the developed countries made the TRIPs Agreement connected with. Developed countries forced upon the third world economic coercion to implement full western-style IPRs standards, and made the South under an everlasting status of enslavement. The protection of GR demonstrates the disharmony of adopting of single IPRs regime to diverse nationalities, territories and cultures. IPRs is increasingly becoming the legal cover of monopoly and extension of right.In this article, after the analysis of the relationship and conflict between CBD and the TRIPs agreement, the author attempts to examine the idea of TRIPs agreement under CBD, and explore the probability that protect GR by introducing "Prior Informed Consent" and "Origin Disclosure" to the course of patent application, with the aim to refresh the TRIPs Agreement. As a result, the benefits of the developing countries and GR can be protected better.