Research On The Legal Protection Of New Plant Varieties Rights

As a crucial intellectual property,plant variety right's legal protection concerns the establishment of intellectual property law system,the development of agroforestry ecology and the construction of ecological civilization.With the development of breeding technology and the growth of international trade,the limits of China's legislation system of plant variety protection have been more and more obvious.The legal level of Regulations on the Protection of New Varieties of Plants is low,and can no longer meet the need of protecting new plant varieties in China;the legislative content is not complete,and lacks regulations on priority right and exhaustion of right;the application of farmer's right and punitive damages is not clear,and the benefit share system of genetic resources has not yet been established.This is because of the legislative lag and the weak awareness of protecting variety rights.There are some successful experience on legislation to protect variety right overseas:the U.S.employs a system combining specialized law and patent law,and has formed a complete legislative system to protect new plant varieties;in Japan,the protection covers all the plant varieties,the scope of breeder's right is rather broad;India introduces benefit share system of genetic resources into protection system of new plant variety,and gives same protection to farmer's right as to breeder's right.Taking examples by international agreements and legislative experience in particular countries,there are several methods to complete legislative content of China's new plant variety right:raise the legal level of new plant variety protection,complete the legislative content of new plant variety right;integrate the Regulation on the Protection of New Varieties of Plants and the Seed Law,issue the Plant Variety Protection Law basing on the principle of encouraging innovation and equity interest.The Plant Variety Protection Law can enlarge the protection scope of China's new plant variety by installing protection for substantial derived species,enlarging the protection scope of varieties and enlarging the protection scope of variety right;complete the right restriction system by installing the principle of right exhaustion and priority right and defining the application of farmer's right.Meanwhile,establish the benefit share system of genetic resources,complete the regulation of punitive damages,to enforce powerful protection for new plant variety right.