in collaboration with MINISTRY OF INDIAN COUNCIL OF ENVIRONMENT & FORESTS MEDICAL RESEARCH International Conference on Access and Benefit Sharing for Genetic Resources March 6-7, 2008, Magnolia Hall, India Habitat Centre, Lodhi Road New Delhi, India Benefit Sharing from Intellectual Property Rights of Plant Resources Cases in China CASTED,China 3-7-2008
Three trends of thoughts on intellectual property rights rise along intellectual property rights skepticism, counter intellectual property rights and theory of ossification of intellectual property rights. Chinese experts also have different opinions.
With the appearance of series of cases, government and some experts lay their eyes on the benefit sharing from intellectual property rights of natural resources.
1. Cases Chinese gooseberry case:chinese gooseberry has 66 species, with 4 species in neighbor countries and 62 in countries. In 1904, a New Zealand teacher took the seeds from China back to New Zealand. Now Chinese gooseberry becomes the strut of export industries in New Zealand, making 30 million dollars as annual production value.
1. cases Camptotheca acuminata Decne(XISHU) case: In 1911, an American collected the seeds of Camptotheca acuminata Decne in China and took them back to the U.S.A. the adventitious plant programming department of the U.S.A. came to China twice in 1927 and 1934 to collect this kind of seeds. they applied and got the American plant patent.
1.cases As a kind of intellectual properties, patent only covers technical innovation projects. However, in 1980 the U.S Supreme Court rewrote the history of patent by judging a bacterium organism that could digest axunge as a patent. From then on, bioengineering companies began to apply patents on genetic resources and genetically modified animal and plant models such as animalcule, gene, cells and embryos. This kind of patent is called Patent on Life.
1.cases The seeds of Camptotheca acuminata Decne were provided for the filtration of the American Institute for Cancer Research, who extracted an important anticancer ingredient camptothecin. Smithkline corporation, a copartner of the Institute, developed a ramification of camptothecin Topotecan, got the patent and won mint profits.
1.cases Soybean case: China is the country of origin of soybean, owning 90% of the known species of soybean in the world, mounting to 6000 and even more. At the same time, soybean is also one of the earliest food Chinese people ate and planted, which can dates back to 4000 years ago. Until now China is still one of the largest soybean-production countries.
1.cases The one who earliest found that Monsanto applied international patent for Chinese wild soybean is a German member of the Green and Peace Organization in 2000. At that time China didn t pay a lot attention on that. However, there was a fierce argument about the patent on life in the aspect of propagation breeds.
1.cases Monsanto was founded in 1901, located in St. Louis, Missouri, the U.S.A. Until now it has grown into a biotechnological company owning 9 billion assets and hundreds and thousands of employees, majoring in agricultural pesticide,biochemical industry, medicament, edulcorant and food additives.
1.cases The event of Monsanto applying for the soybean patent is especially discussed as an important section in The Enclosure Movement in the New Century Patent on Life. As a protected species in China, wild soybean is forbidden to be taken abroad.
2. Opinions of the benefit sharing in China Ⅰ It s the right time to amend the intellectual property system. Intellectual property right system is always considered as the impetus of the development of industries and cultures. However, recently it becomes the stumbling block of realizing biodiversity, continuously using and impartially sharing benefits. The rights of the primary habitants, local communities, farmers and consumers has been violated.
2. Opinions of the benefit sharing in China Ⅱ We can provide biological species resources, but we also should share the fruit and profits they bring. Except for the mint benefit from the fee, biological resource products (such as medicines ) and intellectual property rights, we also should get the benefit from stuff training and the establishment of systems and methods.
2. Opinions of the benefit sharing in China Ⅲ Species have their rights. If some companies and individuals do not get the new technologies or patents through import or export way, without the permission of the owner country, every country should not give them corresponding intellectual property.
2. Opinions of the benefit sharing in China Ⅳ Mainly focus on business users and academic users, at the same time but differently. It will be more strict to the business users like medical companies, while it will guarantee the research autonomous right of academic organizations such as universities and research institutions.
3. Attitudes of Chinese government to the benefit sharing of plant resources Ⅰ Join in the Convention of Biology Diversity China is one of the earliest countries who joined in the Convention of Biology Diversity. In 1980 s China became CITES members.
3. Attitudes of Chinese government to the benefit sharing of plant resources According to the Convention, the biological resources in one country is considered as a part of state sovereignty. The acquirement of the resources should get the permission of the holder country, and the holder country has the right to get the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.
3. Attitudes of Chinese government to the benefit sharing of plant resources Ⅱ Regulations of the State Council The Wild Plants Protection Ordinance,1996; The Regulations On Protection Of New Varieties Of Plants, 1997; The Seeds Law. 2000;
3. Attitudes of Chinese government to the benefit sharing of plant resources Ⅲ Rgulations of Ministry of Agriculture Rules For The Regulations On Protection Of New Varieties Of Plants. (Agriculture Part), 1999; The Listing of The New Varieties Of Agricultural Plants On Protection (the first part),1999; the Regulations on the Control of Seed ; Regulations of the Agricultural Seed, 1991;
3. Attitudes of Chinese government to the benefit sharing of plant resources Ⅲ Relative regulations of Ministry of Agriculture the Interim Regulations on the Control of the Import and Export of Agricultural Seed ; Administration of the Examination, Approval and Registration of Foreign-invested Crop Seed Enterprises Provisions,1997; The Interim Measures on Agricultural Seed Production And Management in 1998 ;
3. Attitudes of Chinese government to the benefit sharing of plant resources Ⅳ Regulations of the Ministry of Forestry Rules For The Regulations Of Protection Of New Varieties Of Plants. (Forestry Part) in August of 1999; The Listing of The New Varieties Of Forestry Plants On Protection (the first part) 1999; The Listing of The New Varieties Of Agricultural Plants On Protection (the second part) 2000; Regulations for the Management of the Protection of Wild Medicinal Materials.
3.Attitudes of Chinese government towards benefit sharing from plant resources These regulations have specific terms on the management and protection of genetic resources, the rights and profits of the genetic resource owners and foreign exchanges. The regulations make principled rules on the rights, duties, responsibilities and benefits.
3.Attitudes of Chinese government towards benefit sharing from plant resources The Seeds Law regulated that we carry out the protection system of the new varieties of plants and the legal rights of the holders of the species of plants. The breeders will get corresponding economic benefit from the application and extension of the chosen species of seed.
3.Attitudes of Chinese government towards benefit sharing from plant resources According to the Importing and exporting crop seeds (seedlings) Interim Measures, to provide germplasm resources to foreign countries, its administration should be in accordance with the classification directory of crop germplasm resources.
3.Attitudes of Chinese government towards benefit sharing from plant resources The examination and approval procedures should be transacted by the Institute of Crop Germplasm Resources, Chinese Academy of Agricultural Sciences. The examining and approving should be transacted by the administrative departments in charge of agriculture, State Council of the People s Republic of China.
4. The next step 1.China is comprehensively promoting the protection and management of biological species and resources. At the same time, efforts are being intensified to the drafting and establishing of the biological species resources legislation.
4. The next step The legislation of the protection and management of biological species and resources is not only the internal demand of protecting the ecological environment and promoting Chinese economy development, but also the important measure of preventing the loss of biological species and conserving biological diversity. It s the demand of fulfilling the obligation of Convention on Biological Diversity.
4. The next step 2.Further definitude the access methods and technical standards of agricultural genetic resources. The pursuant international standards, guidelines and recommendations should be specified, and the life and health of human and animals should be ensured.
4. The next step 3.The rights and interests of the equity inventors, the definition, distribution and protection policies of the various interests should be made clear. Especially for the commercial production.
4. The next step 4.Corresponding regulations should be made on the problem of the transgenic plants releasing s impacts on human and environment and safe biological handling methods and so on.
4. The next step 5.Improving the related people s awareness of biological rights and interests. No matter users, providers, researchers or common people have to pay more attention to access procedures instead of taking and using at will.
4. The next step 6.Obtain economic, technological, intellectual property rights and capacity building proceeds while promoting the conservation of biological diversity. 7.Legal guarantee.