Research On Patentable Protection Of New Plant Varieties In China

Nowadays,as a new achievement of human intellectual labor,new plant varieties have increasingly become one of the most active factors in agricultural technological innovation,and play an increasingly important role in promoting agricultural development.Moreover,new plant varieties are an important part of the protection of agricultural intellectual property rights,and they are also a very important part of the TRIPS Agreement in the field of agricultural intellectual property rights.However,at present,the Patent Law of our country stipulates that new plant varieties can not be granted patents.The Patent Examination Guide also interprets "plant varieties" as "plants",and holds that plants are living objects that cannot be protected by patents.Therefore,strengthening the protection of the right to new varieties of plants has become a top priority in China.At present,the developed countries represented by the United States and Japan adopt the most intensive patent law to protect new plant varieties,strengthen the rights of commercial breeders,and maximize their interests as the primary purpose;while the developing countries represented by Southeast Asia,Africa and Latin America pay more attention to protecting farmers' rights and interests,expand farmers'rights through CBD conventions and ITPGR conventions,and protect their own students.No outflow of genetic resources.China's legal system for the protection of new plant varieties has gradually improved with the development of society,and through the"Regulations on New Plant Varieties" this administrative regulation to enhance the rights of breeders,to stimulate innovation and further development in the field of biotechnology.However,there are still many drawbacks,such as the narrow object of rights protection,simple and vague content and difficult to implement,which to a large extent affect the development of bio-intellectual property in China,especially in the field of genetically modified animals and plants.This paper will focus on the further improvement of the legal protection of new plant varieties in China and the improvement of the system.The first part describes the general situation of the protection of new plant varieties,including the related concepts of new plant varieties,the three most common protection modes in the world:the special law protection mode,the patent law protection mode and the parallel protection mode of the special law patent law.The current situation of legal protection of new plant varieties in China was introduced.The second part elaborates the defects and deficiencies of laws and regulations such as "Regulations on the Protection of New Plant Varieties","Seed Law" and "Patent Law" which are mainly involved in the protection of new plant varieties in China through a more detailed analysis of the problems existing in the protection of new plant varieties.The third part talks about the development trend of the inevitability and feasibility of the patent protection of new plant varieties in China,and further demonstrates the future development trend of the patent protection of new plant varieties by drawing on the practical experience of international practices.The relationship between UPOV,TRIPS,CBD conventions and ITPGR conventions was compared and analyzed,and the feasibility of patent protection for new plant varieties in China was examined through these international treaties.The possibility of patent granting for new plant varieties is measured by three essential conditions of patent granting:novelty,creativity and practicability.The last part is mainly about the exploration and Prospect of the patent protection of new plant varieties in China and the related challenges that China will face soon.Although there are still many disputes on the application of genetically modified biotechnology,the development and utilization of biological genetic resources and many other problems still plague many scholars in China.More experts and scholars believe that the current situation in China is not suitable for the full use of the international developed countries to protect the full range of strong patents for new plant varieties.But we should know that there are innumerable obstacles to the implementation of any law at the beginning.It is important to protect "ecological security" and "biodiversity",but we can't put our hands on it.As a member of the International Convention on the Protection of New Varieties of Plants,it is a key link for all-round development to actively respond to and improve the current legal protection system for new varieties of plants in China,and to keep pace with the international community in a timely manner,based on national conditions.The purpose of this paper is to appeal to our country to conform to the international development in the field of new plant varieties through the overall trend of international environment and legislation.Through a detailed analysis of the inadequacies of the current legislation on new plant varieties and the substantive conditions for the patentability of new plant varieties,it is suggested that China should incorporate new plant varieties and their"biological production methods".In addition,new plant varieties that meet the substantive and formal requirements of patents are granted patent rights within the scope of patentable objects.