Research On Patent Protection Of Biological Genetic Resources

The21st century is the century of bio-economy, biological genetic resources which is necessary for the biotechnology has become an important strategic resource for a country’s sustainable development. Dependence on resources and extract information from resources are the two characteristics of biotechnology industry, which decides who masters the limited biological genetic resources on the planet, who will be able to obtain bio-active economic development and become the new wealth owners in the biotechnology era. Because of this, some multinational companies and research institutions in the developed countries are devoted to searching for biological genetic resources which is also called "green gold" in the world wide. They maximize access to new technologies and knowledge products by use of modern intellectual property system to reap huge profits in the market. However, they exclude the possibility to obtain intellectual property protection of biological genetic resources in the legal system. The developing countries have a wealth of biological genetic resources and lack of advanced bio-technology, so what the developed countries did make developing countries continue to suffer the pain of "bio-piracy". How to stop "bio-piracy", as well as how to balance the distribution of benefits between the providers and the user of biological genetic resources in order to promote benefit-sharing, has become a hot topic in today’s issue of the international community. In intellectual property protection of biological genetic resources, the introduction for the obligation of disclosure of origin of biological genetic resources in patent law has become a focus of debate.In this context, the paper analyzes the relationship between the biological genetic resources protection and patent system. At the same time, combined with the latest progress in international and domestic legislation for patent protection of biological genetic resources, the paper analysis the patentability of biological genetic resources and comments the new "disclosure of origin clause" in China’s patent law and expresses own views. Article is divided into four parts:The first part discourses the relationship between the biological genetic resources conservation and the patent system, introduces the definition, values and legal property of biological genetic resources, and analysis the defensive protection mechanisms of the patent law. The second section describes the legislation progress on patent protection of biological genetic resources in international and domestic, especially the latest legislative developments of three important and relevant international organizations——CBD, WIPO and the TRIPS, as well as the position of United States, European Union and developing countries as the representative of India. The third part detailed analysis the patentable elements of biological genetic resources invention, specifically including the patentability theme of biological genetic resources and "three standards", particularly the standards of practicality and creativity of biological genetic resources invention. The fourth part focuses on the disclosure of origin of biological genetic resources in patent applications. This part describes the international controversy and the main content of the obligation of disclosure of origin of biological genetic resources which is introduced to patent law. In addition, this part emphatically comments the recent amendments on the "Patent Law","Patent Law Implementation Rules "and" Patent Examination Guidelines", and makes reasonable suggestions for further improve on the patent protection of biological genetic resources in China.