China’s Disclosure of Origin law.
On 1 October 2009 China amended its patent law to require the disclosure of the origin of a genetic resource used in an invention for which patent protection is sought. Similar provisions are already in force in Bolivia, Colombia, Ecuador, Peru, Belgium, Brazil, Costa Rica, Denmark, Egypt, India, Norway, South Africa, Sweden, and Switzerland.
One goal of these provisions is to ensure that the providing country obtains some of the benefits from products developed using resources obtained within its borders. China is a country with abundant genetic resources and victim to a drain of genetic resources by biopiracy. For example, genetic materials from wild soybeans, Chinese gooseberry and even the famous Beijing duck have been taken away to develop hybrids which are patented then imported back into China.
Aiming to protect Chinese genetic resources, amendments to Article 5 and Article 26 of Chinese patent law regulate the use of genetic resources in a patent:
- Under the amended Article 5, if the acquisition or use of genetic resources violates relevant laws and regulations of China, then no patent will be granted for any invention that relies upon such genetic resources.
- Amended Article 26 further requires that, for an invention that relies on such genetic resources, an applicant must disclose in the patent application the direct and the original source of such genetic resources, and if the applicant cannot identify these, he or she must specify reasons for the failure to do so. Failure to comply with such disclosure requirements could result in the denial or invalidation of a patent.
For now, the practical implications of the amended law are that an applicant must fill in and submit a form prepared by China’s State Intellectual Property Office (SIPO), named “Form for disclosure of the source of genetic resources”, to indicate the source of the genetic resource. If the applicant cannot indicate the source, he or she must state why not.