Research On Patentability And Benefit Balance Of Human Genes

Gene technology has broad prospects for development and great application value.In order to encourage the innovation of gene technology,promote the dissemination of advanced knowledge and promote the development of gene industry,most countries in the world have incorporated it into the object scope of patent system.But because of the special nature of gene itself,it has been widely disputed since it was granted a patent.Among them,the controversy about human gene patent is particularly prominent.The main issues involved include whether human gene is patentable or not,and the licensing conditions of human gene patent.At the same time,the granting of human gene patents has also led to intense conflicts between gene patentees and gene resource providers,gene follow-up researchers and consumers of gene products.It is urgent to balance the interests of all parties through a reasonable interest balance mechanism.The judgment of Myriad case in the United States in 2013 once again brought human gene patent to the forefront of the storm,triggering a new round of discussion on human gene patent.Based on this case,this paper makes an analysis and Discussion on the issues involved in human gene patents.Firstly,with Myriad case as the starting point,this paper expounds the basic case and the focus of controversy of Myriad case,and leads to the consideration of whether human gene is patentable and how to balance the conflict of interests caused by human gene patent.Secondly,it demonstrates the patentability of human gene,including the dispute between invention and discovery of human gene,the analysis of advantages and disadvantages of granting human gene patent right and the identification of "three characteristics" of patent,and draws the conclusion that human gene is patentable.Thirdly,it elaborates the conflicts of interest caused by human gene patents,combs the manifestations of conflicts of interest,and analyses the causes of conflicts of interest.Then it explores the balance mechanism of interest conflicts,expounds the theoretical basis of benefit sharing,and puts forward five balance modes: resource providers and researchers share gene patents,resource providers enjoy gene patents and product rights,researchers pay for the use of gene resources,resource providers share the economic benefits of gene patents,and shorten the protection period of gene patents.Finally,some suggestions on perfecting human gene patent in China are put forward.China should adhere to the patentability of human genes,establish strict and detailed patent examination standards on this basis,and add the balance mechanism of conflicts of interests caused by human gene patents.Figure 0;Table 0;Reference 46.