Research On The Benefit Sharing Pattern Of The Intellectual Property Derived From Genetic Resource

The relations between the genetic resource and the intellectual property system are close and complicated. With the development of biotechnology, the genetic resource has become a kind of important strategic resources. It is an important issue how to use the intellectual property to strengthen the protection of the genetic resource and promote the benefit sharing.Firstly, this thesis analyses, with position of absence of property right, that the open access of genetic resource would lead the common tragedy. And the open access institution would harm the conservation, development and benefit sharing of genetic resource. This thesis considers that the definition and enforcement of property right on genetic resource is the foundation of subsequent benefit sharing. The most important value of genetic resource is the genetic and biochemical information contained in genetic resource, but the property right protection could not extend to the information product. Therefore, this thesis researches the possibility and the difficulty of operation of using the current intellectual property system to protect the genetic resource directly. Some kinds of intellectual property systems could be used to protect the genetic resource directly, such as the geographic indications, trademark and the trade secret. At the same time, using the intellectual property system will cause some problems.This thesis makes it an emphasis to discuss the using of the bioprospecting agreement to carry out the benefit sharing based on the genetic resource. Because of the diversification of the genetic resource and the development, the bioprospecting agreement is a good measure to lower the transaction costs. With Nash-Bargarning model, this thesis analyses the probability of benefit sharing by using bioprospecting agreement, and the question should be regarded. By studying the existing cases, this thesis raises that the long-term intellectual property benefits are more important than the short-term cash income, and designs the instruction principles of benefit sharing of intellectual property, which matches conditions of our country.This thesis also researches the multilateral benefit sharing mechanism of the intellectual property in the field of the agriculture genetic resource. The benefit sharing of the genetic resource in the traditional agriculture field is benefit sharing without the intellectual property. With the extending of the intellectual property in the agriculture field continuously, the exchange and usage of the agriculture biotechnology and the agriculture genetic resource have been restricted, and this would cause the food crisis. By studying the patent pool model, this thesis raises that we could share the intellectual property benefit by patent pool, on the base of the patent we holding.The thesis also researches the disclosure requirements of the origin of the genetic resources in the patent application. The disclosure obligation in the patent law would monitor the mechanism of intelligent property right benefits sharing based on the genetic resources, also reduce the occurrence of the biopiracy. This thesis analyses the linkages between the genetic resources and the invention to determine triggering of the obligation. The disclosure requirements should be the mandatory requirements to determine the patentability, the breaching of the obligation may be subjected to scathing sanctions, which would lead the applicant carry out the obligation better.