論我國轉(zhuǎn)基因植物生產(chǎn)方法專利侵權(quán)判定標(biāo)準(zhǔn)的完善
發(fā)布時(shí)間：2018-07-14 08:26
【摘要】：轉(zhuǎn)基因植物是以轉(zhuǎn)基因技術(shù)為基礎(chǔ)而培育出的具有新型性狀的植物。關(guān)于轉(zhuǎn)基因植物知識產(chǎn)權(quán)保護(hù)的爭議存在已久,立法機(jī)關(guān)對于此的立法可能會影響到整個(gè)社會看待轉(zhuǎn)基因植物這一事物的角度,我國能否加快腳步加入國際領(lǐng)先水平的行列,相關(guān)政策及法律法規(guī)的制定或完善顯得尤為重要。目前,我國關(guān)于轉(zhuǎn)基因植物的知識產(chǎn)權(quán),有兩種保護(hù)途徑。其一是植物品種權(quán)保護(hù),其二是生產(chǎn)方法專利權(quán)保護(hù),而目前,我國《專利法》關(guān)于轉(zhuǎn)基因植物生產(chǎn)方法專利保護(hù)存在著明顯不足,導(dǎo)致發(fā)明人在獲得相應(yīng)專利權(quán)后,難以對侵權(quán)人的行為進(jìn)行有效制止。本文從創(chuàng)世紀(jì)公司分別與河北冀農(nóng)公司及山東圣豐公司的兩起訴訟出發(fā),試圖找到某些不足之處并試圖完善相關(guān)侵權(quán)判定規(guī)則。本文主要由四項(xiàng)內(nèi)容展開,其中文章的第一、二部分為寫作背景,通過對我國《專利法》、《專利審查指南》相關(guān)法規(guī)的比較,發(fā)現(xiàn)上述法律法規(guī)僅對轉(zhuǎn)基因植物方法專利作了定性規(guī)定,對相關(guān)侵權(quán)行為作一般處理。文章第三部分對上述兩起案件進(jìn)行詳細(xì)分析,從案件爭議產(chǎn)生緣由及評析爭議焦點(diǎn)入手,發(fā)現(xiàn)如果對轉(zhuǎn)基因植物生產(chǎn)方法專利的侵權(quán)行為與其他發(fā)明作一般處理,會使得案件審判結(jié)果明顯失去公平性,法官在無特殊規(guī)則可參照的情況下最終導(dǎo)致案件審判結(jié)果的混亂。本部分最后針對爭議焦點(diǎn)的癥結(jié)所在,提出需要解決的幾個(gè)問題及其解決方法,即轉(zhuǎn)基因植物與一般雜交獲得新性狀植物的關(guān)系、轉(zhuǎn)基因植物所含目標(biāo)基因的特殊作用和地位及方法專利中的基因產(chǎn)品應(yīng)當(dāng)采取的保護(hù)范圍。文章第四部分針對上述所提出的問題進(jìn)行逐一解答,并在此基礎(chǔ)上,試圖構(gòu)建出轉(zhuǎn)基因植物生產(chǎn)方法專利侵權(quán)判定標(biāo)準(zhǔn)。經(jīng)過分析,提出在判定侵權(quán)事實(shí)時(shí),可以通過相同序列判定、類似序列判定以及等同序列判定等三種判定原則的相互配合達(dá)到基本公平的審判效果。其次,本部分還對各種判定原則的具體內(nèi)容進(jìn)行了大致的界定,作為相關(guān)法律法規(guī)修訂的建議。
[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.
【學(xué)位授予單位】：華中科技大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2016
【分類號】：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.
【學(xué)位授予單位】：華中科技大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2016
【分類號】：D923.42
【參考文獻(xiàn)】
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