The Exhaustion Of Rights In Plant New Variety Protection

In intellectual property laws, limitation of right is the inevitable outcome with its development. The proprietary in intellectual property laws determines that it absolutely contains certain property as monopoly. To keep the balance between the exclusive right holder and social public, introduction of certain exhaustion principle can guarantee the system with sound progress. The principle of exhaustion of rights is unique among the principles of intellectual property rights, which specifically refers to once the product attached with intellectual property have been put on the market, the right holder will lose the control on this specific intellectual property product. This means that the right holder will no longer restrict the buyers for the purpose of use and resale of intellectual property products sold. The existence of the exhaustion doctrine helps to balance the position of the right holder, so as to create a more reasonable space for competitors and consumers, which is conducive to the further development of free circulation and trade market for the products. The exhaustion of rights principle is rooted in the prohibition of abuse of rights principle in traditional private law and formed into a unique theory through this special platform of intellectual property.Even if the principle of exhaustion of rights has established mature practice generally accepted in the most countries within the three major fields of copyright, patent and trademark, which has become an important principle in the judicial practice of intellectual property, but still a new try of application in the plant new variety system. When it comes to the protection system of plant new variety, the International Convention for the Protection of New Varieties of Plants(UPOV Convention) must be mentioned. By 2015, it has been half a century since the 1961 text of the UPOV Convention passed by the UPOV Union. UPOV Convention with increasingly profound influence is in the leading position regarding the field of protection of new varieties of plants. However, each UPOV member will be faced with two problems in practice: first is the confusion or barrier with selection among three types of protection mode which recognized by UPOV Convention; second is under the background that UPOV Convention mainly represents the interests of developed countries as the current development trend how do all members, especially the developing country members deal with the problems and potential issues. Signed in 1994, TRIPs brought the protection of new varieties of plants into the scope of world intellectual property protection; the intention of developed countries use TRIPs to implement UPOV model into global scale has been increasingly obvious. With the rise of new technology in agricultural revolution, modern biological engineering and information technology, more and more countries are beginning to pay attention to the protection of new varieties of plants in agriculture as the important part of the intellectual property rights. China is one of the UPOV Convention members as well as developing countries. With the continuous progress of the development in agricultural science and technology, plant new variety right infringement case occurred frequently in practice. It is important for China’s plant industry to develop a protection system of new varieties of plants to be settled urgently. In light of its own national conditions, China chose to join the 1978 text of UPOV Convention in 1999 and appropriately introduced the provisions from 1991 text with the vision and great foresight.Even the choice of patent system and sui generis system on the protection of plant new variety exists, the sui generis system established by UPOV Convention makes the plant new variety right become another important issue in the field of intellectual property rights. The exhaustion doctrine in the laws of intellectual property rights is a kind of limitation to the right holder, although it has not reached a certain consensus in the international society and the application in the field of plant new variety still belongs to a fresh try. This is not only because the history of plant new variety right is not very long, but also because the characteristics of self-reproduction of plant seeds is different from the object of general intellectual property. If limitation to the application of the principle of exhaustion of rights is not reasonably introduced, it will cause great loss to the right holder, thus making damage to the long-term development of plant industry.The purpose of this study is to analyze the necessity of setting exhaustion doctrine into the protection of new varieties of plants and the various problems in application under the reference of the articles of UPOV Convention as well as the legislation and judicial practices in various countries; present with constructive reform opinions on the former two foundations combining with the present situation of the new varieties of plants protection system.The research content is divided into international and domestic parts. On the international level, will mainly focus on the regulation of UPOV Convention for the protection of plant new variety as well as major countries related legislation and judicial practices, including not only the developed countries, but also developing countries whose practice may bring valuable reference to our country; on the domestic level, will focus on China’s protection system of plant new variety including legislation system, protection status, relevant cases, and the specific problems in application on the principle of exhaustion of rights.For research methods, the thesis mainly relies on references research method, case analysis method and comparative analysis method to study the research problem. The research method of references refers to obtain data through investigation from various references. References include Chinese and foreign languages versions. The main sources of references as related include journals and thesis database in CNKI; school library collection resources, including books, periodicals; some foreign websites that provide foreign references resources. Case analysis method refers to analysis of the principle of exhaustion of rights applied in the practice of the protection of new varieties of plants through the judicial practice. The choice of cases includes domestic and foreign practices, will analyze the situation when combining the principles with the facts under a variety of cases in order to ensure the quality of comprehensive and logic discussion. The main source of the cases is from the issuance of national court authorities and the databases presented by some legal service websites. Comparative analysis method is comparisons based on the discussion of the protection system of new varieties of plants of various countries, will mainly include following several parts: comparison between America and European Union; comparison between developed countries and developing countries; comparison between Western countries and China; comparison between other developing countries and China. In the aspect of the principle of exhaustion of rights, comparisons are based on the application in the fields of copyright, patent, trademark and plant new variety. After weighing the advantages and disadvantages from the comparisons, a conclusion of the most reasonable development system for China will be reached.The thesis is divided into four chapters, first with the exhaustion of rights principle as the beginning, starting from its origin and history, introduce the classification of exhaustion principle in terms of territory and the application status of the exhaustion principle in the general intellectual property areas such as copyright, patent and trademark. Then put the application of exhaustion of rights principle in the field of new varieties of plants into international part and Chinese part. For international part, emphasize the analysis of guiding significance from the legal framework of the UPOV Convention. Meantime, give a simple introduction of the three protection systems in the protection of plant new variety; illustrate the current situation with specific legislation and judicial practices of major countries. For Chinese part, first to give a general picture of legislation overview of plant new variety right system of China, then discuss the judicial practice based on the court decisions’ main points regarding plant new variety right exhaustion. Explore the necessity and significance of the principle in China on the basis of the above research, and ultimately put forward the suggestion whether the principle should be adopted and the way it coheres with the current legal system.The first chapter introduces the meaning, the historical development and its significance of application regarding the principle of exhaustion of rights. Give a brief introduction with a number of important cases on the exhaustion principle. According to the application territory, the principle of exhaustion of rights can be classified into three modes and make a comparison of domestic exhaustion, international exhaustion and regional exhaustion, to pave the way for the explanation of the comparison on the application of exhaustion principle and choices of application by different countries. In the introduction of exhaustion principle, will focus on the fields of patent, copyright and trademark, combined with the specific situation of judicial practices to illustrate the development of the principle.The second chapter based on the application of exhaustion principle in the plant new variety protection system, give a quick introduction from the international point of view on the concept and history of plant new variety protection system through the planting history of the European countries as well as America and observe and discuss the necessity of plant new variety protection system with an establishment of the exhaustion principle. After expounding the origin and history of the new plant varieties system, follow the course of variety regulations in UPOV Convention and then clarify the definition of the concept of new varieties of plants. At the same time, pay attention to China’s regulation regarding the similar concept in the legal system of plant variety protection and study the definition with exploring the source. After determining the concept of new varieties of plants, and then comes the definition of plant new variety right with a comparison of stipulations in specific provisions from international conventions and China domestic laws and regulations. The characteristics of the plant new variety right make it different from other industrial property rights that are introduced in this thesis. Then, detailed analysis and comments will be made regarding legislation and judicial practices of the UPOV system and major countries. Among the international conventions including UPOV Convention and its three texts, the TRIPs Agreement and the Paris Convention, discusses the articles regarding plant new variety protection system as well as the relationship with each other. Key emphasis will be laid down on the UPOV Convention with the differences between the three texts and a detailed description for 1991 text. By an overview of major countries with their protection systems, the plant new variety right protection systems are divided into three types, introduction of each system will including legislation practice instances in following parts: sui generis systems in Germany and India as an example of both developed country and developing country; dual protection systems in American, Japan and the European Union as examples, in order to grasp the overall situation and form a general cognition of the plant new variety protection system legislation modes. Finally, focus on the field of new varieties of plants for the exhaustion of rights. First, analyze the principle from the provisions of UPOV Convention. Second, study the cases in details of the application of exhaustion of rights practice in new varieties of plants protection systems in the European Union and America. In America side, the disputes in the field of plant new variety mainly focus on patent exhaustion; the thesis will try to make it clear why here is a trend that America prefers patent protection rather than plant variety system in the dual protection mode, while the European Union, with the ruling of European Court of justice as the basis, applied regional exhaustion principle in the EU system.The third chapter is the content of protection system of plant new variety and the exhaustion principle with its application status in our country. First of all, introduce the principle of exhaustion of rights in general areas of intellectual property rights, combined with the investigation of the degree on recognition and analysis of the application for the principle in other fields of intellectual property rights in China. Secondly, collect the latest data from authoritative reports and the publications from relevant departments on the current situation of the protection of new varieties of plants to show the trend and overview of status quo in our country. Then, focus on the relevant legislation in the protection of plant new variety in China including laws and administrative regulations, department regulations and judicial explanations. Following will analyze the embodiments of the exhaustion principle in our protection system of plant new variety in China from legislation and judiciary perspectives. The main concern is the judicial practice, which case analysis will be introduced into the research that focuses on the observation on the principle and perspective in the judgment when the trial committee tries to explain the rules. Attempt to conclude the application rules regarding principle applied in the plant new variety protection system. In the necessity of introducing the principle into our country’s legal system, will proceed with the appropriate opinions to improve the application. Then put forward the suggestion considering the legitimacy in the legislation level and factors that should be considered before introducing the principle.