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| EPO Practice Regarding Plant Innovations and Its Illumination |
| LI Ju-dan |
| College of Applied Arts and Science of BeIjing Union University, Beijing 100191, China |
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Abstract European Union and EPO managing the examination of patent applications and the grant of European patents, had seek how to offer patent protection for plant innovations in order to encourage innovation in biotechnology breeding industry since 1980s. There were two main reasons for such a policy made by European Union, one was United States had provided patent protection for living material produced by genetic engineering in Chakrabaty in 1980 before European, another was the traditional protection systems of plant breeding by the right of the breeder given by UPOV failed to satisfy the development of modern biotechnology industry. From Ciba—Geigy case decided by the Technical Board of Appeals in 1983, EPO decided to provide the patent protection for propagating material for cultivated plant. In Lubrizol case in 1988, EPO confirmed that the hybrid seeds or plants should be protected by patent. In Plant Genetic Systems case in 1995, the Technical Board of Appeal thought that plant cells, non-biologically transformed, were patentable. In Novartis case in 1999, Transgenic Plant was confirmed to be protected by patent. The above-mentioned four cases were fundamental cases regarding plant breeding innovation handled by EPO, which interpreted at length EPC Art. 53(b), key provision dealt with whether plant invention can be get patent or not, and showed that intellectual property protection policy change of EU on living material, and indicated that patent system would be a powerful measure to protect biotechnology breeding innovation. Nowadays, China thinks highly of the development of modern biotechnology industry as a strategic emerging industry in the future. From the experiences of European and United States, China should consider more proactive intellectual property policies to support and encourage innovation in the biotechnology breeding industry, and should provide patent protection for plant innovation as soon as possible.
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Received: 10 December 2012
Published: 25 May 2013
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[5] Novartis "Transgenic Plant". EPOR,2000: 303.
[6] 陈红,刘平,张新明,等.我国建立实质性派生品种制度的必要性讨论.农业科技管理,2009,1:10-12. Chen H,Liu P, Zhang X M, et al. Discussions on necessity of establishment of EDV system in China.Management of Agricultural Science and Technology 2009,1:10-12. |
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