Intellectual Property Protection For Genetic Resources Of Genetically Modified Crops

Gene resource acquisition, use and benefit sharing is an important problem in areas of agricultural science and technology, biodiversity and economic development. In1961, Germany and other European countries signed the "International Convention on the protection of new varieties of plants" in Paris. The convention proposes new plant variety rights system, which is considered as a support system for the gene resource utilization and development, safeguarding the interests of people who use modern biological technology to cultivate new plant varieties in developed countries in the form of private rights, which emphasizes the individual development and added value of gene resources. With the global economic integration process speeding up, the interest structure becoming divided, and especially problems of resources, the environment and human health becoming challenging, the sovereignty and property rights of genetic resources has become a hotspot in the world. Transgenic crops, as genetically modified crops or crops with gene recombinant, which come from by using gene recombination technique of tissue culture technique to bring in genes of other organism or species, develop rapidly, play an important role in our agricultural production and life, and become an important part of biodiversity., Based on gene resources and with recombinant DNA technology to improve and develop, transgenic crop should receive the protection of intellectual property rights with individual value.. However, gene property as sovereignty rights of the origin country, and property rights of community and farmers who to save and found the variety value by traditional ways can not be reflected in current systems.The researchers also pay close attention to this problem, but the research is still fragmented, and there is no systematic study of resource using right configuration from the legal angle, especially two-way interactive of genetic resources and intellectual property protection. Intellectual property is the form of private property rights, based on individual right, facing the diversity of the object of right, especially gene resources of transgenic crops assemble natural public property and individual value property, the protection of intellectual property rights approach needs a breakthrough. Based on the knowledge of law, economics, sociology, and biology, this paper regards gene resources of transgenic crops as base point, explores the intellectual property rights protection of genetic resources of transgenic crops in China, analyzes the stakeholders involved in the process of genetic resources were by perspective of interests, tries to find out basic legal issues in intellectual property of the utilization of genetic resources of transgenic crops. Based on the interests balance theory, sustainable development theory, the farmer rights and interests protection theory, and with the legal configuration for genetic resources utilization right, real balance of the private interests and public welfare in the utilization of genetic resources could be achieved. Then this paper constructs a system of combination of the international and domestic characteristics, and puts forward concrete macroscopic legislative proposals for intellectual property protection in the utilization of genetic resources of transgenic crops in China, so as to promote the healthy development of transgenic crop gene resources use in china.Through the research, the main points of this paper are as follows:first, China’s current patent and plant variety rights system give a certain legal basis for the protection of transgenic crops, but don’t pay close attention to natural public property of the genetic resources, especially the carrier to realize farmers’ rights; second, intellectual property protection of gene resources of transgenic crops should follow the principle of balance of interests, substantial fair principle, encourage innovation principles, and prevent the abuse of abuse principle and the principle of international cooperation, seeking harmonious development in prevention and cooperation; third, the choice of legislation should combine China’s actual law with external environment, the special law protection of variety rights couldn’t directly transfer to the patent law, the protect model of gene resources law could be built; fourth, based on ownership registration for genetic resources of transgenic crop, the system to protect and use genetic resources should be constructed, including prior informed consent system, benefit sharing system, community co-management system, ecological compensation system, and the right relief system; fifth, the gene resources right, as the basis and framework of farmer’s rights, should be injected into the concept of community development, promote two-way interactive development approach of genetic resources of transgenic crops and the protection of intellectual property rights through the community sharing institutional system.This study involves connotation, core and associated system of intellectual property protection for gene resources of transgenic crops of, from multiple perspectives but in theory, this is just a new start, there are still many theoretical and practical problems for further research and discussion. In particular, gene resources of transgenic crops, as specific public products, are practical needs to promote the initiative development and also the inevitable requirement of biological diversity. Intellectual property protection of genetic resources of transgenic crops should not be confined to the traditional private law, but from the overall interests of society angle, building a legal path of public protection combined with utilization, then realizing the harmonious development of organic combination of the subject and object of rights.