Research On Protection System Of Substantive Derivative Varieties

Under the background of biotechnology breeding,the development of science and technology has a great influence on the innovation of new plant varieties,and also poses a challenge to our protection system.In practice,there are many modification breeding phenomena,which leads to the variety simplification of Chinese seed industry,the number of infringement disputes increases,and the amount of infringement increases year by year.The legitimate rights and interests of relevant right holders are not well protected,thus limiting the development of national seed industry.In order to balance the interests between the original variety owner and the breeders who use the variety for breeding,the Seed Law of the People’s Republic of China(hereinafter referred to as the Seed Law),which was implemented in March 2022 under the background of the Action Plan for the Revitalization of the Seed Industry,has clarified the protection system of substantial derivative varieties.Although the Seed Law defines this protection system at the legal level,its implementation methods and steps are stipulated by The State Council.Secondly,since the implementation of the new law,although the case judgment focuses on cracking down on the source of infringement,taking into account the interests of farmers,but there is still a lack of specific judgment norms,so that it cannot give full play to its value.Besides,in practice,on the one hand,the rights of people with new plant varieties are expanded with the object of rights;On the other hand,convenient,efficient and low-cost modified breeding has broken the balanced development of seed industry,making the current system unable to keep pace with the changes of The Times and legislation lagging behind practice.How to balance the interests of various subjects from the legal level has become a big problem.At present,there are still problems such as lack of unified identification system,commercialization barrier,narrow scope of protection,lack of corresponding disclaimer and unclear identification of tort.Therefore,by comparing the protection status of foreign countries and related restrictions,successful experience of foreign countries is summarized.It is necessary to standardize the system through the legislative level to meet the needs of the development of The Times.First,the most important thing at present is to set a unified judgment standard;Second,open licensing system can be introduced to implement different subsidy policies for different farmers;Thirdly,the protection list should be expanded as soon as possible in an orderly manner,a fair business environment should be created,and the germplasm bank should be gradually established to prevent the leakage of resources.Fourthly,in order to balance the interests of all parties,we can learn from the advanced experience of EU and other countries,set up the preemptive right,improve the exemption of compulsory license and other reasons;Fifth,define the connotation of "commercial purpose" according to the types of plant varieties,and clarify the boundary between production behavior and use behavior in practice.In this regard,we should further improve the specific contents from the perspective of national intellectual property strategy,build a system suitable for our national conditions and enable the interests of all parties to achieve a dynamic balance,so as to promote the development of breeding innovation,in order to better guide the legal activities in the future period of time.