Study on the Access to and Benefit Sharing of Plant Genetic Resources and Intellectual Property Right Protection of Biotechnology
|關鍵字:||植物遺傳資源;利益分享;智慧財產權;生物技術;TRIPs;CBD;Benefit Sharing;Access to;IPRs|
By the rapid progress of biotechnology, our quality of food and medical service has been highly raised. To facilitate the continuing development of biotechnology, it is a huge incentive to provide inventors intellectual property rights protection (IPRs). However, these plenty of great inventions are resulted from natural genetic resources. Though the value of plant genetic resources cannot be revealed without the biotechnology, this logic also applies when there are no genetic resources available as raw material for biotechnology research. Therefore, how to reconcile the benefit between the owners of plant genetic resources and biotechnology inventors becomes the most important issue. Since the conclusion of the Agreement on Trade-Related Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO), the protection of IPRs has marched from domestic level towards global standards. Every WTO members are required to provide IPRs protection to biotechnology inventions. On the other hand, the United Nations Convention on Biological Diversity (CBD) is based upon the principle of sustainable development, requiring the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, inter alia, by appropriate transfer of technologies. Thus, in the international society, there is a growing attention on the compatibility of the principles honored by both regimes, underling the inherent inconsistence between the developed and developing nations on this issue. Accordingly, the question could also arise as to whether there is a conflict between TRIPs and CBD in the light of their objectives and practices. Furthermore, how much legislative flexibility the sui generis system of TRIPs 27.3(b) really suggests still remains unknown. This thesis rethinks the role of international law and legal concepts, studying the objectives and principles of TRIPs and CBD, and trying to examine the interaction between both regimes through national practices. By analyzing theses different aspects of view in detail, this thesis finds that mutual contradiction of the provisions between TRIPs and CBD are unlikely to happen, no matter in nature or implications of both treaties. In addition, patent system and benefit sharing should be able to implement in a way of mutually supported and thus reach the win-win goal.
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