实质性派生品种制度的缘起、困境与因应

实质性派生品种(EDV)制度旨在防止修饰性育种,鼓励原始创新,但中国品种权法律制度尚未引入该制度。为此,特分析其缘起、实施困境与应对之策,以期为我国引入该制度有所助益。EDV制度很大程度上缘起于对育种豁免的限制。就事实效果而言,EDV制度并不影响他人利用原始品种进行育种研究;就法律效果而言,EDV制度对育种豁免有一定的限制,利用受保护品种培育的EDV,其商业化须经原品种权人授权。实施EDV制度可能会面临"实质性"判定难、派生品种商业化利用障碍,以及农民负担增加等困境。基于专业技术的考虑,应由品种授权部门确定EDV的阈值判定标准,法院在品种侵权纠纷中适用判定标准裁判,并借助技术调查官制度以解决"实质性"判定的难题;引入责任规则以化解派生品种商业化的障碍;通过国家补贴以减轻EDV制度可能给农民增加的成本负担。据此建议,如引入EDV制度,应做好相关配套制度设计。

Origin,implementation difficulties and countermeasures of essential derived variety system

The essential derived variety (EDV) system is helpful to prevent modified breeding and encourage original innovation. However, this system has not been introduced into the legal protection system of variety rights in China. Therefore, the present assay systematically analyzed the origin, implementation difficulties and countermeasures of EDV system. The EDV system stems from the restriction of breeding exemption. As far as factual effects are concerned, the EDV system does not affect others to use original varieties for breeding. In terms of legal effects, the EDV system has certain restriction on breeding exemption, so the commercial use must be authorized by the original variety owner. The implementation of the EDV system may face difficulties in judging essential, obstacles to the commercialization of derived varieties and increasing the burden on farmers. Based on the consideration of professional technology, the judgment standard of threshold should be determined by the department of variety authorization. The court should apply the judgment standard in the dispute of variety infringement, to appropriately judge “essential” by means of the technical investigation officer system. Liability rules should be introduced to remove the obstacles in commercialization of derived varieties. And state subsidies should be adopted to alleviate the cost burden that the EDV system may impose on farmers. If the EDV system were introduced into China, the relevant supporting systems should be well designed.