Perfecting Criterion Of Transgenic Plants Production Method Patent Infringement Of China

Intellectual property disputes of transgenic plant, which is based on transgene technology has been lasting for a long time. How the public regard to this issue depends on legislation of the country. It is important for China’s joining international leading level of biotechnology, to perfecting related laws and regulations. At present, China offers two ways for intellectual property protection of transgenic plant, as one is plant varieties protection and the other one is production method patent protection. Protection for production method patent is so inadequate that inventor could not stop infringement after being patented.This article based on two litigations of Bio-t vs. Hebei Jinong Seed Industry and Bio-t vs. Shofine, attempting to find out any inadequate point, and perfect related regulations. This article has four main contents. The first and second part describe the background of this article. Through comparison of Patent Law of the People’s Republic of China and Guidelines for Patent Examination 2010, finding out that these two regulations just regard issues of transgenic plant production method patent as normal patent issues.The third part of this article analyses the two litigations above, through analyzing reasons and dispute focus during trial. Finding out that general treatment of these kind of issues, trial results will finally become unfair and chaotic, for there is no specific regulations for the judge. At the end of this part, I put forward three questions needed to be answered and solutions, against disputes focus. The three questions include: 1. Relationship between transgenic plant and plants gain features by chromosome crossing-over; 2. How special is the gene consisted in transgenic plants; 3. What is the scope of protection for gene production in the context of method patent.The forth part of this article answer the three questions above, and attempting to construct transgenic plants production method patent infringement criterion based on these answers. Through analysis, putting forward three new concepts and attempting to improve fairness in trails with interworking of them. Secondly, this part would broadly define the three concepts as suggestions for amendment of related laws or regulations.