Research On The Protection System Of Genetic Resources In Our Country

Genetic resources play a crucial role in biotechnology and the development of human society.The phenomenon of biological plagiarism led to the implementation of the Convention on Biological Diversity(CBD),which confirmed three principles: the principle of prior informed consent,the principle of mutually agreed terms and the principle of equitable benefits sharing.As the side of contracting parties,our country introduced source disclosure system on genetic resources in the third modification of Patent Law of the People's Republic of China(hereinafter referred to as the Patent Law).Because of the limitations of law and the complexity of reality,the source disclosure system still has many insufficiencies,which requires subsequent legal adjustments to be perfect.The implementation of the Nagoya protocol provides an international legal basis for Access and Benefit Sharing(ABS)of genetic resources.The implementation of the source disclosure system needs to be cooperated with the perfect genetic resources legal system and ABS system.However,the current legal system in China still lacks the specific legislation and ABS system of genetic resources.This paper will take the concept of invention-creation based on genetic resources as the starting point,combining with practice experience to exam the legal dilemma of source disclosure system,ABS system and other aspects,and suggest for improvements.In addition of the introduction and conclusion,this paper consists of four chapters.The first chapter starts with the definition of the concept of genetic resources to demonstrate the characteristics and value of genetic resources.Genetic resources refer to materials with practical or potential value,which contain genetic functional units from plants,animals,microorganisms or other sources.Genetic function refers to the ability to propagate a phenotypic trait or characteristic from parents to offspring which can replicate the organism as a whole.Genetic resources have characteristics of locality,complexity and reproducibility,and important ecological and economic values.In Patent Law,it only can be considered as the completed invention and creation based on genetic resources under the condition of the separation,analysis and treatment of genetic functional units.The second chapter is about the current protection situation of genetic resources in our country.China has abundant genetic resources,but the loss of the resources is also severe.China is suffering from the biopiracy,with large amount of genetic resources being lost overseas.The law of genetics resources can be found in different levels of legal documents,without specific legislation on the protection of genetic resources in our country.However,the relevant departments are actively promoting the drafting of the legislation on the protection of genetic resources.At present,although China has set up a general framework for genetic resources,it lacks of specific laws on genetic resources,and some laws are difficult to realize their effectiveness due to the low level or weak operability.The legal system of genetic resources is not perfect,and patent system is still a necessary approach to protect genetic resources.Although the patent law has made preliminary provisions on genetic resource related inventions,its effectiveness is obviously lacking and needs to be further improved.The patent system plays an important role in regulating ABS.Only the compatibility of the two can ensure the protection of genetic resources.So far,China lacks the institutional arrangement of ABS,so it is necessary to accelerate the construction of ABS system.The third chapter analyzes the source disclosure system of genetic resources in China.The original intention of the source disclosure system is to ensure the legitimacy of the source of genetic resources,and it is also a system designed for the realization of equitable benefits sharing.However,due to the limitation of law and the complexity of reality,the system still has many defects.Firstly,China has a relatively narrow definition of the scope of genetic resources,which cannot play a good regulatory role in some biopiracy phenomenon.The author believes that derivatives should be included in the concept of genetic resources,which will be conducive to the goal of protecting genetic resources.Secondly,China's patent applications do not need to submit the evidence of prior informed consent and benefits sharing,which may make it possible for patent applicants to obtain patent authorizations through fraud,and the legitimate rights and interests of stakeholders will be impaired.The last but not least,China has not set up corresponding legal liability for non-performance or false performance of the disclosure obligation.The author suggests that the act should be included in the legal reason for requesting the invalidation of the patent,which means that the violation of obligation cannot obtain patent authorizations.The fourth chapter is the discussion on the construction of ABS system.The most prominent problem of current ABS system in China is the lack of comprehensive legislation,and it is of the great significance to introduce comprehensive laws on the protection of genetic resources.Under the guidance of comprehensive legislation,various levels of legal provisions are perfected and refined.In addition,the administrative supervision departments involved in the management of genetic resources are chaotic and cannot meet the actual needs,so it is urgent to establish a supervision coordination system for genetic resources.The current legal system mainly regulates the acquisition of genetic resources in principle,but it lacks detailed regulatory on the details of supervision.In the author's opinion,a prior informed consent system should be introduced to assist the management of genetic resource acquisition activities,and a benefit sharing system should be set up at the stage of achievement of genetic resource research and development.