Study On Protection Of Patent Right Of Genetic Technology

As a core technology in modern science, genetic technology has significant influences on a variety of fields such as medicine, energy and environment and benefits human beings of the society. Meanwhile, genetic technology also enhances economic and social developments. Therefore, protecting genetic technology effectively is particularly important. Patent system is the most effective means of protection for genetic technology, however, there has been a heated debate on the patentability of genetic technology issues in law circles and social communities because of the special nature of genetic technology itself. Among the debate, the focus is on whether genetic technology is an 'invention' or a 'discovery'. On the one hand, simple sequence is undoubtedly objective reality, which belongs to the field of 'discovery'. On the other hand, genetic technology, as original, creative and practical 'scientific discovery' after separation, purification and tranformation in the gene's form and internal structure, can be equivalent to the field of 'invention' and should be granted the patent. Determining whether genetic technology can be awarded a patent is on the core standards of conditions of 'three attributes'. In scientific research, public health, medical adminitration and other areas, the exercise of gene patents should be limited, among which compulsory licensing system is the most effective way to resolve the abuse of gene technology patents. Accordingly, our country, based on our national conditions and utilized the advanced legislation experience of foreign countries properly in the technology of gene patenting, should not only avoid focusing on the distinctive boundaries of 'discovery' and 'invention', formulate stricter audit standard of gene patents, expand and improve the scope of protection of patent law, but also enact patent laws to make up for the lack of protection of new varieties of eligible plants and animals, establish the genetic system of compulsory licensing of patents to protect the genetic technology by means of patent system on the balance of individual interests and social public benefits, and strengthen patent protection of gene technology in order to enrich and improve China's intellectual property protection system.