Research On The Restriction Of Gene Patent Issue

Because of the feature of life the gene has, the arguments of gene patent were never stopped. Starting from the time that gene be protected by patent law in many countries, the number of variety kinds of gene patent have been increased sharply, which lead to many issues such as the imbalance of interests of different parties, monopoly risk in relevant industry, the challenge of ethics and morals, as well as improvement of gene technology innovation. Therefore, many countries consider the restriction of gene patent as a part of their national patent strategy and it have became an obvious international tendency. It is good for maintaining the order of rights, balancing the interests between gene patent oblige and other parties, improving ordered competition of gene technology and solving the problem of public health, agriculture security and moral risk caused by gene patent. Theoretically, gene patent restriction is necessary for right restriction and gaining multi-value target and it has theoretical basics of law, economics and society. The restriction of gene patent can be classified into two categories as restriction of acquirement and restriction of exercising. The restriction of acquirement means to judge whether the gene patent applicant can obtain the patent right, it include the restriction of gene patent object, substantive examination conditions and range of protection. The restriction of exercising means to limit the right exercising of oblige who have been granted gene patent, including gene patent non- infringement situation, obligatory license and competition protection. Although Chinese legislation have made some rules on gene patent restriction such as patent objects, substantive examination conditions, non-infringement situations, obligatory license, information disclosure of gene origin and regulations of monopoly, there are still some deficiencies. The main performances are: the limit of gene patent object is strict to some extent; the substantive examination conditions are too relaxed; the range of right acquirement is unclear; information disclosure of gene origin and benefit sharing system is not perfect; the length of gene patent protection is too long; the regulations of actions harm for competition are not excellent, etc. To solve these issues some suggestions have been made: to expand the principle of “general elimination, exceptional grant” in patent objects; to establish the priority of practicability in substantive examination conditions of gene patent; to strength the restriction of basic research scope in the range of right acquirement; to establish reasonable information disclosure of gene origin and benefit sharing system; to make specific length of gene patent protection; to improve the regulation system of gene patent monopoly and act of unfair competition.