6 research outputs found
A Comparative Study on Human Embryonic Stem Cell Patent Law in the United States, the European Patent Organization, and China
With the recent developments in biotechnology, associated patent law issues have been a growing concern since the 1980s. Among all the subcategories within the general field of biotechnology, human embryonic stem cell research, as one of the most controversial, is receiving different patent system treatment in different countries. China explicitly opposes the patentability of hESCs in its patent regulations on the basis that patenting hESCs is contrary to morality and the public interest. Similarly, the EPO, relying on ambiguous language in the European Patent Convention [EPC], excludes hESCs from patentability by broadly interpreting the morality clause of the EPC. In contrast, the United States has become the main progenitor of hESC patents. By analyzing the reasons to grant or deny patents on hESCs, and considering patent law doctrines and justifications, this dissertation reaches two conclusions. First, patent law should not include a morality clause and should only take into consideration technical concerns. Moral issues should be left to other mechanisms such as administrative law. This is an approach deeply rooted in the American patent system, but not in China or the EPO. Second, by reviewing the requirements of patentability such as novelty, non-obviousness and utility, it can be concluded that hESCs themselves are not patentable because they lack a specific concrete utility and, since they already exist in nature, they lack novelty as well. However, hESC production processes and derivative products are patentable
The Reformation of Legal Regime for Intellectual Property Protection of Plant Varieties in Thailand
PhDThailand’s plant protection regime presents a unique sui generis plant protection
system, which is used as a model by several developing nations. The current Thai
Plant Variety Protection (PVP) law has attracted some criticism, and whether or
not farmers and breeders actually benefit from the system is in doubt. The
questions this situation raises are: has Thailand adopted clear, coherent, and
workable rules for plant variety protection in response to the needs of the nation?
Is the introduction of intellectual property rights (IPRs) in agriculture via a PVP
regime a desirable and contributory factor to the development of Thailand? More
precisely, how might such an IPR regime be made compatible with Thailand’s
development needs, bearing in mind the obligations the country has accepted
through its membership of the WTO and adherence to the TRIPS Agreement?
This thesis attempts to address these questions.
By highlighting the salient features of the Thai plant protection regime, this
thesis addresses the major concerns of the rights of farmers, local communities,
and plant breeders. It is suggested that the protection of plant varieties is vital to
Thailand, considering the fact that agriculture represents a fundamental economic
activity and the livelihood of a large section of the total population; therefore,
introducing IPRs in agriculture via the PVP regime is critical to the development
of agriculture in Thailand. Thus, a new developmental approach to the IP
protection of plant varieties is desirable to ensure the unique needs of the nation the validity of national legislation, and the long-term promotion of agricultural
development and sustainability in Thailand.
Thailand can provide a more coherent framework for plant variety protection
by carefully calibrating the PVP provisions and establishing a coherent set of
rules in the form of a new legislative framework. It is concluded that a number of
possible elements are available from a variety of instruments that exist in
international law, notably the TRIPS Agreement, the UPOV Convention, the
CBD, and the ITPGRFA. Lastly, the proposed regulatory reforms suggest that
Thailand’s PVP provisions should be amended in three major areas, including (1)
provisions for the rights of farmers and local societies, (2) legal protection for
plant breeders’ rights, and (3) institutional apparatus governing plant protection issues in Thailand.Herchel Smith Funding Board, and the Faculty of Law, Chiang Mai University, Thaila