论我国转基因植物生产方法专利侵权判定标准的完善
发布时间：2018-07-14 08:26
【摘要】：转基因植物是以转基因技术为基础而培育出的具有新型性状的植物。关于转基因植物知识产权保护的争议存在已久,立法机关对于此的立法可能会影响到整个社会看待转基因植物这一事物的角度,我国能否加快脚步加入国际领先水平的行列,相关政策及法律法规的制定或完善显得尤为重要。目前,我国关于转基因植物的知识产权,有两种保护途径。其一是植物品种权保护,其二是生产方法专利权保护,而目前,我国《专利法》关于转基因植物生产方法专利保护存在着明显不足,导致发明人在获得相应专利权后,难以对侵权人的行为进行有效制止。本文从创世纪公司分别与河北冀农公司及山东圣丰公司的两起诉讼出发,试图找到某些不足之处并试图完善相关侵权判定规则。本文主要由四项内容展开,其中文章的第一、二部分为写作背景,通过对我国《专利法》、《专利审查指南》相关法规的比较,发现上述法律法规仅对转基因植物方法专利作了定性规定,对相关侵权行为作一般处理。文章第三部分对上述两起案件进行详细分析,从案件争议产生缘由及评析争议焦点入手,发现如果对转基因植物生产方法专利的侵权行为与其他发明作一般处理,会使得案件审判结果明显失去公平性,法官在无特殊规则可参照的情况下最终导致案件审判结果的混乱。本部分最后针对争议焦点的症结所在,提出需要解决的几个问题及其解决方法,即转基因植物与一般杂交获得新性状植物的关系、转基因植物所含目标基因的特殊作用和地位及方法专利中的基因产品应当采取的保护范围。文章第四部分针对上述所提出的问题进行逐一解答,并在此基础上,试图构建出转基因植物生产方法专利侵权判定标准。经过分析,提出在判定侵权事实时,可以通过相同序列判定、类似序列判定以及等同序列判定等三种判定原则的相互配合达到基本公平的审判效果。其次,本部分还对各种判定原则的具体内容进行了大致的界定,作为相关法律法规修订的建议。
[Abstract]:Transgenic plant is a new type of plant which is based on transgenic technology. The dispute on intellectual property protection of transgenic plants has existed for a long time. The legislature's legislation on this issue may affect the whole society's view of the issue of genetically modified plants. Can China speed up its pace to join the ranks of the international leading level? The formulation or perfection of relevant policies and laws and regulations is particularly important. At present, there are two ways to protect the intellectual property of transgenic plants in China. One is the protection of plant variety rights, the other is the patent protection of production methods. At present, there are obvious deficiencies in the patent protection of transgenic plant production methods in China's Patent Law, which leads the inventor to obtain the corresponding patent right. It is difficult to effectively stop the behavior of the infringer. Based on the two lawsuits of Chuanji Company, Hebei Jinong Company and Shandong Shengfeng Company, this paper tries to find some deficiencies and perfect the relevant rules of tort judgment. The first and second parts of the article are divided into writing background, through the comparison of the relevant laws and regulations of Patent Law and Patent examination Guide of our country. It is found that the above laws and regulations only provide qualitative provisions for the patent of transgenic plant methods, and generally deal with the related infringement acts. In the third part of the article, the author makes a detailed analysis of the above two cases, starting with the cause of the dispute and the analysis of the focus of the dispute, and finds out that if the infringement of the patent on the production methods of transgenic plants and other inventions is generally dealt with, The result of the trial will obviously lose its fairness, and the judge will lead to the confusion of the result of the trial without special rules. In the end of this part, aiming at the crux of the controversy, several problems need to be solved and their solutions are put forward, that is, the relationship between transgenic plants and general hybrid plants to obtain new traits. The special role and status of target genes contained in transgenic plants and the scope of protection to be taken by gene products in patented methods. In the fourth part, the above questions are answered one by one, and on this basis, the author tries to construct the patent infringement judgment standard of transgenic plant production method. After analysis, it is put forward that the basic fair trial effect can be achieved by the cooperation of the three judgment principles: the same sequence judgment, the similar sequence decision and the equivalent sequence decision. Secondly, this part also gives a general definition of the specific content of various judgment principles, as a proposal for the revision of relevant laws and regulations.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.42
[Abstract]:Transgenic plant is a new type of plant which is based on transgenic technology. The dispute on intellectual property protection of transgenic plants has existed for a long time. The legislature's legislation on this issue may affect the whole society's view of the issue of genetically modified plants. Can China speed up its pace to join the ranks of the international leading level? The formulation or perfection of relevant policies and laws and regulations is particularly important. At present, there are two ways to protect the intellectual property of transgenic plants in China. One is the protection of plant variety rights, the other is the patent protection of production methods. At present, there are obvious deficiencies in the patent protection of transgenic plant production methods in China's Patent Law, which leads the inventor to obtain the corresponding patent right. It is difficult to effectively stop the behavior of the infringer. Based on the two lawsuits of Chuanji Company, Hebei Jinong Company and Shandong Shengfeng Company, this paper tries to find some deficiencies and perfect the relevant rules of tort judgment. The first and second parts of the article are divided into writing background, through the comparison of the relevant laws and regulations of Patent Law and Patent examination Guide of our country. It is found that the above laws and regulations only provide qualitative provisions for the patent of transgenic plant methods, and generally deal with the related infringement acts. In the third part of the article, the author makes a detailed analysis of the above two cases, starting with the cause of the dispute and the analysis of the focus of the dispute, and finds out that if the infringement of the patent on the production methods of transgenic plants and other inventions is generally dealt with, The result of the trial will obviously lose its fairness, and the judge will lead to the confusion of the result of the trial without special rules. In the end of this part, aiming at the crux of the controversy, several problems need to be solved and their solutions are put forward, that is, the relationship between transgenic plants and general hybrid plants to obtain new traits. The special role and status of target genes contained in transgenic plants and the scope of protection to be taken by gene products in patented methods. In the fourth part, the above questions are answered one by one, and on this basis, the author tries to construct the patent infringement judgment standard of transgenic plant production method. After analysis, it is put forward that the basic fair trial effect can be achieved by the cooperation of the three judgment principles: the same sequence judgment, the similar sequence decision and the equivalent sequence decision. Secondly, this part also gives a general definition of the specific content of various judgment principles, as a proposal for the revision of relevant laws and regulations.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.42
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