【Abstract】 China, an emerging country in the world, has attached more and more importance to this field. However, improvements are still needed for the better implementation and coordination of these international conventions, especially in TRIPS and UPOV.?
【Key Words】 Intellectual Property, Plant, International Law, China??
1 Implementation of TRIPS in China?
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members. As an originate member of GATT, however, an intellectual property rights regime for plant varieties was slow to evolve in China. ?
China agreed to provide intellectual property protection in accordance with TRIPS in preparation to join the WTO. If it does not belong to self-executing treaties or conventions, the member state should establish new laws or amend the domestic laws and regulations to execute it. In order to comply with TRIPS, China was required to "provide for the protection of plant varieties either by patents or by an effective sui generis system or any combination thereof." However, after amending the Patent Law in 2008, the TRIPS requirement still conflicts with Article 25(4) of China"s Patent Law, which provides that methods for producing plant varieties are eligible for patent protection although the plant varieties themselves are not patentable. Hence, Chinese government must amend our own patent laws or develop an alternative plant protection system in order to comply with TRIPS. Otherwise we will confront international lawsuits.?
2 Adopting of UPOV in China?
China ratified the International Union for the Protection of New Varieties of Plants (UPOV) 1978 Act on April 23, 1999, but has not yet acceded to the UPOV 1991 Act. Hence, China is not obligated to follow Article 3(2) of the 1991 Act that requires that new members provide protection for all plant genera and species within ten years of accession. Currently, foreign applicants are limited to the eighteen genera and species that include several plants that are grown principally in China, and exclude several major crops such as cotton and wheat.?
The protections of plant varieties under Council Regulations are weaker than that afforded in the United States. In China, only certain designated plant varieties are protected and the term of protection for most plant varieties is only fifteen years. It is limiting protection only to genera or species of plants finalized and published by government authorities. It provides protection for only fifteen years for plants other than vines, forest trees, fruits trees, and ornamental trees, unlike in the United States where all plants varieties are protected for twenty years. The initial list of plants protected under the Council Regulations consisted of only eighteen genera and species, including rice, corn, Chinese cabbage, and potato. ?
3 Some Thoughts?
The existence of multiple methods of plant intellectual property protection within and between countries has created a myriad of problems. The development of a single global system of protection is highly desirable. ?
The Note is opposite to the idea that those countries with multiple methods of intellectual property protection for plants should absorb all of the forms of protection into one system, preferably the regular patent system. Developed countries control high-technology and transnational corporations. Business is business. World should set up a popular standard for developing countries while a higher standard for developed countries. More and more regional or global organizations should be set up to help developing countries so that the latter can get technology and information support from the former. China needs more fair organs under the United Nations frame and NGOs. Attempting to distinguish a plant variety entitled to sui generis protection from a more generic plant entitled to patent protection creates unnecessary ambiguities and complexities. In addition, the research and save seed exemptions provided by a sui generis system are ineffective in countries that provide utility patent protection for the same plant varieties, since utility patents have no such exemptions.?
Then, patent protection is the strongest form of intellectual property rights protection available for indigenous peoples in developing countries. The fact that traditional plants varieties are developed over many generations by communities of inventors should not make them ineligible for patent protection. Traditional plant varieties should be eligible for patent protection just as large groups of scientists in the developed world currently obtain patents on inventions developed in corporate research laboratories. Thus, this Note recommends that China invest effort in creating or change intellectual property protection mechanisms to serve the needs of their communities, by allowing patent rights for communities at an affordable cost.?
Last, China must educate local judicial and law enforcement personnel on the benefits of plant variety protection to ensure cooperation in enforcement of intellectual property rights. Success in changing cultural views will likely depend on the impression created by the presence of developed countries, namely evidence of equitable compensation of indigenous peoples, and valuable returns on sharing traditional knowledge in the form of improved plant varieties that can be used in local agriculture or horticulture. At the beginning of 2010, Beijing government made the first Strategy for Plant Conservation in China, other governments should follow it.??
【Reference】?
［1］ Amy Nelson, Is there an international solution to intellectual property protection for plant, 37 GWILR 997, 1025-1028 (2005).?
［2］ Yi Huang, Weishuang Zheng, Dynamics in international implementation of the Convention on Biological diversity, 97 BIODIVERSITY SCIENCE 97, 97-105 (2009).