China has implemented the protection of biotechnological intellectual property rights since mid 1980s. The Patent Law enacted on April 1, 1985, protects the invention of biotechnology, including the invention of the production methods of animal and plant varieties and medicines. The Patent Law amended on January 1, 1993 lists most of the products and materials modified by biotechnology into protection. However, the 4th Provision of Article 25 of the law stipulates that animal and plant varieties shall not be granted with patents.
Article 27 of the Intellectual Property Right Agreement Related to Trade (including the Trade of Fake Commodities) stipulates that new plant varieties are protected under patent system, effective special system, or any kind of combined system. In connection to the legislation and national economic development in China, and in the meantime to make preparation for entry into relevant international treaties and WTO, China issued the Regulation of New Plant Variety Protection (hereinafter referred to as Regulation) on April 30, 1997. The agriculture part and forestry part of Implementation Measures of the Regulation of New Plant Variety Protection have been put to implementation, which makes the law more perfect. Up to now, 18 species and genera in the first batch were protected, such as rice, corn, Chinese cabbage, potato, chrysanthemum, dianthus, Calamus, purple flower lucerne, grassland early grain, Chinese white poplar, paulownia, China fir, magnolia, peony, plum, rose, and camellia.
According to the stipulations of the Regulation, China has accepted applications of new plant varieties, and authorized the applications that meet the requirements. By the end of 2000, China had accepted 392 applications of new plant varieties home and abroad and authorized the application of 68 varieties. In addition, the Supreme Court issued the Explanations of the Issues in the Inquisition of Cases of New Plant Variety Disputes. The promulgation of the legislative explanation will play an active role in ensuring that the People's Courts accept and make fair inquisition of the cases related to the disputes of new plant varieties and ensuring the consistent enforcement.
China ratified the Paris Treaty of Industrial Property Right Protection in 1984, participated in the World Intellectual Property Right Organization in 1989, ratified the Madrid Agreement of Registered Trade Marks in 1989, and on 23 April 1999, China became the member of the International Convention on New Plant Varieties Conservation, thus preliminarily achieving the match with the international intellectual property right system.
During the negotiation process of the International Agreement on Botanical Genetic Resources, China fully supports the principles of CBD, actively promotes the multilateral system for access and benefit sharing of botanical genetic resources. China is committed to providing germplasm resources for the multilateral system according to the two principles of food security and inter-dependence. Within the multilateral system, China actively promotes convenient access, and stick to the principle of fair sharing of benefits from genetic resources acquired from the multilateral system, and holds that farmers’ rights should be realized.
According to the three major objectives of the Convention on Biological Diversity and the requirements of international economic development, China has formulated the legal frameworks of intellectual property right protection and technology transfer. But the systems of laws and regulations are not so perfect and need to be improved. China shall conduct work actively in the following fields in future:
(1)To improve national laws and regulations favorable to technologies of biodiversity conservation and sustainable utilization, including the access to and transfer of biotechnologies and the fair sharing of benefits;
(2)To conduct researches on protection and benefit sharing of wild varieties and primitive plants planted by farmers as well as traditional knowledge;
(3)To enhance training on technologies of biodiversity conservation and sustainable utilization, and technologies of genetic resource utilization that do not cause significant damage to the environment;
(4)To actively participate in the negotiation of the Convention on Biological Diversity and the International Agreement on Botanical Genetic Resources and promote the establishment of multilateral system for access to and benefit sharing of genetic resources;
(5)To enhance international cooperation and the access to the advanced technologies of biodiversity conservation and sustainable utilization in the fair and most favorable conditions, as well as the technologies of genetic resource utilization that do not cause significant damage to the environment.