Study On The Legal Issues Of Protection Of Breeders’ Right Of China Within The Viewpoint Of The UPOV 1991 Act

The European has made periods efforts to find out a effective way to build up the system of the protection of new varieties of plants, from the Paris Convention for the Protection of Industrial Property to the 1961 Act of the International Convention for the Protection of New Varieties of Plants. Then the 1991 Act build up a new protection method of new varieties of plants by enacting the related rules of "Protection of Breeders’right", which gets the legitimate controlling arrangement of the breeders’ right contains all the behaviors of production or reproduction, conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing, stocking for any of the purposes mentioned above related to the propagating material, harvested material and certain products of some legitimate new varieties of plants that owned by some breeder. And 1991 Act add the essentially derived from new varieties of plants and certain other varieties into the application of the legitimate controlling arrangement above. The road to the vehicles is what the restriction to the right on law, so the existence and exerting of the protection of breeders’ right need reasonable restricted too. The restriction of the breeders’ right consist the rules of the protection of breeders’ right, the restriction and protection coexist in the form of dialectic relationship. At the same time, the 1991 Act makes some exception principles of the breeders’ right such as Compulsory Exception, Optional Exception and Exhaustion of Exertion of Right to balance the farmers’ right and the public interest. While,1991 Act receive the challenge and anima originating form other international convention such as CBD and ITPGR, which aims to break the monopoly protection model of the breeders’ right from the intellectual property law such as 1991 Act. The opposite viewpoint appeals that states and countries should treat plant new varieties of plant as the natural hereditary resources and build up the multilateral system of access and benefit-sharing of natural hereditary resources, which receives the support power of most developing countries, but the issue between the two claiming group has not been dealt effectively and in practice. Even though China has build up a complete protection system of new varieties of plants with the leading of 1978 Act of UPOV, the protection system do not act as well as we expect.The main problem in the system of protection of new varieties of plants and rules of protection of breeders’ right in China consist of three respects, the mistaken conception related to protection of breeders’right, the trailed arrangement of protection of breeders’right and the unreasonable restriction rules of breeders’ right. What should the protection of new varieties of plant system of China do is to submit to the trend of joining in the 1991 Act by steps and balance the multiplicity interest among breeders, farmers and public interest, following the developing condition of the domestic breeding industrial and national agriculture and taking reasonable experience from other countries.