On The Legislation Of New Plant Variety Restriction

As a kind of intellectual property rights,the right of new plant varieties is to encourage breeding innovation,improve the quality of varieties,protect farmers 'right to retain seeds and public interests,and promote the balance of breeders,farmers and public interests.From the 1978 text to the 1991 text of the International Convention for the Protection of New Varieties of Plants(hereinafter referred to as the UPOV Convention)issued by the International Union for the Protection of New Varieties of Plants,it can be seen that the Convention on the Protection of New Varieties of Plants led by developed countries strengthens the rights of breeders Protection has correspondingly reduced the scope of farmers 'ability to exercise their rights.The existing protection system for new plant variety rights in China is inadequate from China's current breeding innovation capacity,and the infringement of new plant variety rights is more serious.Therefore,the law tends to crack down on infringement and improve the protection of breeders' rights,which will lead to excessive rights.Protection may cause rights holders to abuse their rights and infringe on the benefits that other subjects can obtain from the variety.In order to effectively play the role of the new plant variety system,the right restriction system should be perfected and fully utilized to regulate breeders to exercise their rights,rather than reduce the existing level of protection.This article will mainly discuss the legal basis for the restriction of new plant variety rights,sort out the relevant legislative provisions of our country,and classify the restrictions on new plant variety rights as farmers 'own reproduction,exemption from breeders,and compulsory licensing of new plant variety rights.At present,the existing problems of legislation on new plant variety rights are analyzed,and the relevant legislative contents of international conventions,the European Union and India are analyzed for reference.Finally,legislative suggestions for improving the restriction of new plant variety rights in China are put forward.The first part is an overview of the new plant variety rights.First define the concept of new plant variety rights,analyze its nature and characteristics,then analyze the legal basis for restricting new plant variety rights,and finally restricting the right has certain practical significance,that is,to encourage innovation,protect farmers' rights and public interest,promote the balance of interests.The second part is the legislative status and existing problems of the restriction of new plant variety rights in China.First of all,it is necessary to sort out the provisions on the restriction of new plant variety rights in China's current legislation,which can be divided into farmers' self-propagation and self-use,breeder exemption and compulsory licensing system for new plant variety rights.Secondly,analyze the relevant legislative provisions,and refine the problems existing in China's current legislation,that is,the subject judgment standard of "farmers' self-propagation and self-use" is not clear enough,and the specific circumstances of compulsory licensing stipulate that there is a conflict between upper and lower laws,compulsory licensing There are no specific criteria for reasonable application.The third part is the current status of extra-territorial legislation on the restriction of new plant variety rights and its enlightenment to China.First,sort out the provisions of the international treaty on restrictions on the rights of new plant varieties.From the development of the UPOV convention led by developed countries to the ITPGRA and CBD conventions,it can be seen that the UPOV convention has greater and greater protection rights for breeders,and the protection has become stronger and stronger,which will restrict farmers from retaining seeds accordingly.Rights and public interests,while the ITPGRA and CBD conventions stipulate relevant benefit sharing systems from the perspective of protecting farmers 'rights.Secondly,the relevant legislation on the restriction of new plant variety rights in the EU and India has been sorted out,which has certain enlightening significance for the improvement of the restriction on new plant variety rights in China.Strengthen the protection of farmers' right to retain seeds.The last part is related to legislative suggestions on the restriction of new plant variety rights.First of all,the basic principle of restriction on the rights of new plant varieties should be clarified at the macro level,that is,starting from the national conditions of China and the principle of balancing interests.Then on the micro-system,starting from the problem itself,drawing on the effective experience from outside the region,and combining with the actual situation in China,put forward suggestions to improve the relevant micro-system,by establishing and perfecting the new plant variety restriction system that suits China's national conditions as soon as possible,and clear the boundaries of rights It can make the new plant variety rights system more effectively promote breeding innovation and the protection of farmers' right to retain seeds,and promote a dynamic balance between the interests of breeders,farmers and public interests.