Sun Haoliang Hebei Law Science  Vol.23, No.7

Abstract:The problem of protection of gene patent is long-standing. Usually, the focusof argument is the problem that gene is invention or discovery. Actually, itdoes not be crucial that gene is invention or discovery. Any design of systemis to promote social development, if advantage of protection of gene patent islarger than disadvantage, can promote the development of gene technology,should confer gene patent right, otherwise should not authorize. Evidently,gene should be discovery, however advantage of protection of gene patent islarger than disadvantage, so our country should confer gene-patent right.

Thisarticle can be divided into four parts:

1,The battle of invention and discovery about gene. The principle that scientificdiscovery can not be patentable has been adhered since the patent system hascome into being. Whether the gene can be granted as an invention or a kind of discoveryis so essential. Some think that gene is naturally occurring and it isn’t akind of new material created by mankind. If gene technology is patentable,basic knowledge and information in the field of human gene would be fullyoccupied by the personals just in a few years. Some others think that it is amethod that we grant it as a patent which can make gene sequence isolate fromorganism.

2,The essence of the discussion about the gene patent protection. It is believedthat the patentability of genes is not whether it isa scientific discovery,buta reformation and an application of gene and in what circumstances it couldbe as an invention.

3,The analysis of advantages and disadvantages about the gene be granted as a patent.It mainly analyzes from three perspectives. (1) Whether the gene patent wouldprevent the development of gene technology or not. (2) Whether the gene patentwould undermine the interests of others. (3) Whether the gene patent would hurtthe profits of the developing countries.

4,The conclusion. The debate of whether gene is an invention or a discovery ismeaningless. The concept of invention and discovery may be changeable in somecases. And there is no question that gene can be patented no matter fromfeasibility or the trends in its development.