Analysis On The Patentability Of Non-transgenic Plant

In recent years, the European Patent Office (EPO) has granted a great number ofpatents on non-transgenic plant, which have caused many debates in both thetheoretical and practical circles. Non-transgenic plant is one of the most importantsources of fine crops in the world, playing an irreplaceable role in increasing foodproduction and improving crop quality. Compared with the transgenic plant,non-transgenic plant is safer. Granting patents on non-transgenic plants can providethe best protection of the breeders’ interests, and facilitate the establishment anddevelopment of modern breeding industry, as well as improve the agriculture level.However, opponents hold the opinion that granting patent on non-transgenic plantswill harm the interests of farmers, the public and the developing countries, andconflict with existing plant variety rights protection. The above aspects have to betaken into account during the analysis of the patentability of non-transgenic plants.Furthermore, the novelty, practicality and creativity of the non-transgenic plants arenecessary elements for the analysis.To a particular country or region, the analysis of the patentability ofnon-transgenic plants requires consideration of the breeding research ability, theagricultural development level, the breeding companies’ ability and the richness ofbiological genetic recourses; the construction of the non-transgenic plant patentsystem requires consideration of the national conditions, the relevant Basic Principlesof the International Conventions, to achieve maximized interests.Based on the points above, this thesis includes five parts.Part one is introduction of the cases and analysis of the debates. In December2010, the EPO’s Enlarged Board of Appeal (EBoA) ruled the patentability ofnon-transgenic plants regarding method patents. Non-transgenic breeding method hasbeen identified as “practical biological process” and the granting of the patent hasbeen prohibited. The involved Patentees have then canceled the requests of methodclaims in the Patent Claim and submitted new requests concerning product claims (i.e.plant, fruit, seed, etc.). This amendment maintains the patents on non-transgenic plant.However, this result was objected before long. The Technical Board of Appealreferred the patentability of non-transgenic plants with respect to product patens to the EBoA again. There has been no reply regarding this issue from the EBoA by now. Thefocus of the debates, whether non-transgenic plants are within the scope of patentprotection, raises the topic of this thesis, the analysis of the patentability ofnon-transgenic plants.Part two is overview of non-transgenic plant, including introduction of theconcept, description of the characteristics and explanation of the nurturing principles.This thesis raised the concept of non-transgenic plant the first time which refers to aplant nurtured by other breeding methods than transgenic technique.Part three is the processes and the disputes of granting the patents onnon-transgenic plants. Firstly, this part briefly introduces the attitudes and theprocesses of the United States, Japan and other developed countries to granting thepatents on non-transgenic plants. Then this part intensively analyses the pros and consto granting the patents on non-transgenic plants, and concludes that granting thepatents on non-transgenic plants can provide the best protection of the breeders’interests, and promote private capital flows to breeding industry, and facilitate theestablishment and development of modern breeding industry, as well as improve theagriculture level. And it’s possible to prevent the potential harm to the interests offarmers, the public and the developing countries due to granting the patents onnon-transgenic plants, via the internal design of the patent system and the externalregulatory system.Part four is the analysis of the three requirements to non-transgenic plants.Non-transgenic plants can meet the requirements of novelty, practicality and creativityis the foundation of granting the patents on non-transgenic plants. In this section thethree requirements to the non-transgenic plants in method patent and product patentare analyzed.Part five is the choice of China on the patentability of non-transgenic plants. Atpresent China’s patent law explicitly prohibits granting the patents on non-transgenicplants. However, taking into account the non-transgenic plants’ importance for thedevelopment of modern breeding industry and agricultural security, China has thenecessary to re-examine the issues of the patentability of non-transgenic plants. Chinaalready has considerable non-transgenic breeding capacity and quite a number ofinternational excellent breeding enterprises. China also is one of the richest countriesin the world on the biological genetic resources. These factors determine China hasalready met the conditions to grant the patents on non-transgenic plants. At the same time, due to the level of agricultural development in China is backward comparedwith developed countries, the construction of the non-transgenic plant patent systemrequires consideration of the national conditions and make a design conducive tonational interests, such as to grant privileges to farmers, to improve the standard ofreview of the three requirements, etc.China is a large agricultural country, and the intellectual protection ofnon-transgenic plants is very important for the maintenance of national agriculturalsafety. In recent years, the debate on the patentability of non-transgenic plants isbecoming increasingly fierce. However, there are few systematic studies on this issuein China. This thesis provided a preliminary investigation on this issue, to induce adeeper research on the patentability of non-transgenic plants in China.