benefit sharing from intellectual property rights of plant...

Benefit Sharing from Intellectual Property Rights of Plant Resources—Cases in China

CASTED,China3-7-2008

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

• 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.


• 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.


• 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.


• 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.


• According to the Convention, the biological resources in one country is considered as a part of statesovereignty.

• 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”.


• 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;


• 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;


• 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 ;


• 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.


• 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.


• 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.


• 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.

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