Research On Patent Protection Of Transgenic Plants

With the development of transgenic technology, scientists are not only able to cultivate crops with pest-resistant, disease-resistant, herbicide-resistant, highly productive and high-quality properties, but also to cultivate plants which can be used to treat heavy metal pollution or lighten and therefore process huge economical potential. The United States takes the lead to grant the patent to transgenic plants and European Union subsequently introduce the legal protection for biotechnology, therefore, the patent protection for transgenic plants has been realized. The substance of patent right is that the patentee fully discloses his technology towards the public in exchange of the monopoly right which is recognized by the national law with a certain period. With the powerful protection of the Patent Law, the huge monopoly interests give the birth to large multinational biotechnological corporations including Monsanto and Bayer in the United States and the European Union. Although there is some gap in transgenic technology between China and the United States or the European Union, our studies on transgenic maize and transgenic soybean have pioneered around the world. At this time, our nation still prohibits to grant patent rights to transgenic plants. If the legal rule can’t change with the alteration of social practice, it will become a hurdle of the development of economy and technology. Therefore, with the development of the transgenic technology in our nation and the strengthening of multinational competition, it is an inevitable trend for our country to grant patent protection for transgenic plants.The article begins with discriminating the concepts of transgenic plants and GM varieties and analyzing the necessity of patent protection for transgenic plants. By discriminating the concepts of transgenic plants and GM varieties, the author understand the differences between the two concepts, and it provides the basic theory support for the writing.Next, the author analyzes the status of the patent protection for transgenic plants in our country. In this part, the author dissects the conservation status for plants, seeds, organs, tissues and cells of transgenic plants, combines with the conditions of innovative patent applications about transgenic plants, and poses the problems in the patent protection of transgenic plants. Subsequently, the author introduces the legislative practice of the patent protection for transgenic plants in the United States and the European Union, and its enlightenment for our country. Through two parts including case development and law-revising process, the author dissects the patent protection processes of transgenic plants in the United States and the European Union. By summarizing the legal system of patent protection in the European Union and the United States, and combining the legal system and legal framework in China, the author proposes that we should draw lessons from the legalistic practice in the European Union to improve the patent protection for transgenic plants in China.In the last part, the author aims at the problems in patent protection of transgenic plants in our nation, combines with the legislative practice in the European Union, and proposes four advises to revise Guidebook to Patent Examination 2010.(1) Modify the concepts of plant species by following the concepts in UPOV1991.(2) Remove the regulation that no granting patent rights to transgenic plants.(3) Stipulate that plant cells belong to microbe products, and process patentability.(4) If rights require the object of claims pointing to specific plant species, then do not grant patent rights. However, if inventions involve plants, and the technological characteristics are not limited to specific plants, then the inventions could be granted with patent rights. The aim of the above revisions on Guidebook to Patent Examination is achieving the rigorous protection of transgenic plants by Patent Law and New plant Species Protection Ordinance.