Discussion Of Tort Liability Of Intellectual Property Of Transgenic Crop

In recent years, the topic related to transgenic crop is concerned widely. Transgenic crop refers to acquiring fine property of crop through applying transgenic technology. After being transferred target gene, transgenic crop can gain good properties such as high yield. Anti-insect pest and frost resisting and bring about giant benefit to human society.Transgenic crop belongs to plant. It has the attribute of self-replication. Different from traditional industrial product, it has its feature. In the development, creation, production and sale link of transgenic crop, various intellectual properties generate correspondingly. There are many kinds of related intellectual properties, such as trademark right, geographical sign etc., but some intellectual properties is not different from traditional agricultural product or industrial product in right protection owing to the particularity of transgenic crop. Such intellectual properties are not the object discussed in the paper. The paper mainly discusses tort liability of intellectual property closely related to the particularity of transgenic crop, namely tort liability of new variety plant right of transgenic crop and tort liability of related patent right of transgenic crop.There are various forms of patent rights related to transgenic crop. A few countries such as America grant patent right to plant, while International Union for the Protection of New Varieties of Plants(UPOV)(1978) is signed in our country. According to this convention, our country doesn’t grant patent right to the transgenic crop, but our country grants method patent right to preparation method of transgenic crop. People can apply for product patent by virtue of the needed related products in preparing transgenic crop(such as gene sequence fragment of good property). For transgenic crop, our country selects the protection of right of new variety of plant.No matter related patent right of transgenic crop or new variety right of plant, both of them have common characteristics: it’s an intellectual property and objective existence, and it is intangible; for obligee, it’s a kind of absolute right and right to control, and it is exclusive; the intellectual property can be used by public if it’s beyond the term of protection. The term of protection is fixed and timely; application should be based on the law in the country and region, it’s protected only in the applied place and it is regional; the form, content, application and protection of right are determined according to the law. It is legal.The key component of tort liability of intellectual property of transgenic crop is the necessary condition of identifying whether the doer constitutes tort behavior and bear civil liability or not, which is the basic element of tort liability components. Tort liability of intellectual property of transgenic crop includes four basic elements and two special elements. The basic element is: 1. Tort that invades the right in the protection scope of obligee; 2. Fact of damage or profit and loss damage fact possessing obstacle caused to personal right and property right of obligee; 3. There is causal relationship between damage fact and tort of doer; 4. Doer has intentional or negligent subjective fault. Special elements are: 1. With production as the purpose; 2. Without permission of obligee.The analysis of key component of tort liability of transgenic crop is according to the doctrine of presumption to implement burden of proof reversed and determine the content of responsibility borne by infringer finally. If infringer possesses the exclusiveness of intellectual property of obligee to manufacture related product with transgenic crop, infringer should bear the liability of stopping infringement; if the infringer causes adverse effect on the transgenic crop related products in the market, such as counterfeit patent right of others or right of new variety of plant, infringer should bear the liability of eliminating the effect; if the infringer causes profit and loss damage to related property right of obligee, such as selling related product with transgenic crop, the infringer should bear the liability of compensating the loss. The law stipulates the liability exemption cases, such as produce or use related transgenic crop product with the purpose of scientific research; the nation approve the implementation of patent right forcibly for the sake of public interest. In the case of liability exemption, it doesn’t mean the doer doesn’t damage the intellectual property of obligee on transgenic crop, it only means that the doer doesn’t need to bear the liability.The paper teases key components of tort liability such as the tort, damage fact and causal relationship in the perspective of civil law, patent law, tort liability law through investigation, analysis and comparison method according to technical characteristics of transgenic crop; combines particular product attribute of transgenic crop to analyze bearing form and compensation of tort liability systematically and answers the focus issue in basic problem and practice of intellectual property tort liability of transgenic crop. The paper hopes to provide help for solving the intellectual property tort dispute of transgenic crop and provide reference for related personnel in the transgenic crop field.