Research On Intellectual Property Issues In China's Industrialization Of Genetically Modified Rice

GM technology is an important part of biotechnology, and on the basis of it, the genetically modified rice (GM rice) and other transgenic crops are cultivated, in which many species have been widely used in agriculture production. In terms of the research on genetically modified rice, our country has reached the world leading level. But limited by the national policies, the requirements of risk assessment, the awareness of public, and so on, until the year of 2009, the genetically modified rice just obtained the national security certificate and permitted to carry out the promotion in Hubei Province, which means that GM rice in our country is about to be launched into the industrialization cultivation in due time. In fact, growing genetically modified rice with excellent characters is very significant to the mitigation of China's food crisis and the food security protection of China even in the whole world.During the industrialization of genetically modified rice, improving the intellectual property system is a kind of basic work, which should be carried on under the guidance of the intellectual property strategy which was proposed in the "Outline of National Intellectual Property Strategy" and "Government Work Report 2009". Therefore, studying the intellectual property rights for genetically modified rice is to response the basic issues on intellectual property in the industrialization of genetically modified rice, and to improve four aspects of creation, utilization, management and protection, which are required by the intellectual property strategy, so as to ensure the smooth implementation of industrialization of genetically modified rice in our country, and also provide a reference for the industrialization of other transgenic crops.In order to accomplish these objectives, the study subjects, regard the theory of law, life sciences, sociology, management and other disciplines as guidance, on the basis of the investigation on current development of transgenic crops, the fundamental theory on the intellectual property for genetically modified rice, the analysis on the data of patents retrieval of genetically modified rice, combine with the use of literature analysis, comparative analysis, empirical analysis and other analytical methods to resolve the intellectual property dispute over the industrialization of genetically modified rice. Under the guidance of the overall strategy on intellectual property in China, learning the advanced experience of foreign countries, studying the four aspects of creation, utilization, management and protection on intellectual property, this study analyzes the existing problems of the intellectual property system in industrialization of genetically modified rice, and also put forward corresponding countermeasures and suggestions for these questions.Corresponding the patents retrieval of genetically modified rice, on the one hand, the intellectual property dispute over the industrialization of genetically modified rice can be resolved; on the other hand, through the analysis of countries who applied patents of genetically modified rice, claims of patents, contents of patented technologies, the annual changes of patented technologies and other relevant things, the development of technologies in genetically modified rice and the trend of relevant market can be understood. And also, through the patents retrieval, we can learn from the layout of other countries on intellectual property strategy, which can provide the most effective technical intelligence for the introduction of our country's policies and management decisions of enterprises, and also is an important foundation of the layout on intellectual property strategy in China's industrialization of genetically modified rice.The IP creation, utilization, management and protection are not mutually independent which formed a unified and coordinated intellectual property system on the basis of the common objective of promoting the industrial implementation of genetically modified rice. In the aspect of creation, through the research in the system of Patent Law and the system of protection of New Plant Varieties, the corresponding intellectual property system of our country is enough for the industrialization in genetically modified rice. On the basis of the comparison of the two systems and the analysis about whether the plant possesses the patentability, we make the choose of the mode of intellectual property of genetically modified rice in China, and put forward the suggestions about construction of the system of Essentially Derived Varieties based on the establishment of the system of conservation and utilization of agriculture genetic resources, and so on. In the aspect of utilization, through the research of the contents of patent rights and variety rights, the right to limit system, the licensing system and the rights transfer system, how to use the intellectual property for genetically modified rice in our country is explicit. For the low transformation rate of intellectual property for genetically modified rice, the suggestions that we should rationally use foreign advanced technology and establish the cooperation alliance on intellectual property are proposed. But during the process, we also should pay attention to protecting farmers'rights and focus on the restraint in the mix of transgenic rice and its products and non-transgenic rice and its products. According to the different subjects, the IP management can be divided into national IP management, scientific research institution IP management and enterprise IP management which also should be treated equally during the improvement of the three kinds of IP management. To further strengthen the independent intellectual property for genetically modified rice as a focus, and pay attention to the international competition and communication at the same time, we should perfect the middle layer of society, construct assessment mechanism for market value of intellectual property, early warning mechanism for intellectual property and incentive mechanism for intellectual property, create the good cultural atmosphere for intellectual property. In the aspect of protection, China adopts the dual-track system of executive protection and judicial protection for intellectual property, which can make sure that they could learn the advantages from each other and avoid the disadvantage. We should perfect the executive protection on the aspects of law enforcement agencies, law enforcement procedures, team of law enforcement officers, and also the customs protection of intellectual property for genetically modified rice. We should also complete the judicial protection of intellectual property for genetically modified rice on the aspects of infringement standards, forensic methods, legal remedy, accountability, and so on.