Unique features of China’s protection regime for biotechnology patents

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    The biotechnology industry is highly reliant on patent protection. Due to the extreme complex and unpredictable nature of living things, biotech patents are distinctive in terms of patentability of subject, disclosure sufficiency of the specification and support requirements of the claims. China has developed an examination and protection regime for biotech patents full of its own particular quirks of which foreign investors should be aware.

    Gene patentability

    The US Supreme Court’s controversial Association for Molecular Pathology vs Myriad Genetics decision may have triggered debate over the patentability of genes, but China’s policy on granting patent protection to isolated genes has not been seriously challenged to date. Pursuant to the Patent Law, a gene or DNA fragment that has been isolated or extracted from nature for the first time may be accorded patent protection if its base sequence has not been documented in prior art, it has industrial value and can be duly characterized.

    Wu Li
    Wu Li

    The focus of Chinese gene patent debates is currently more concentrated on whether it should be expressly required that claims for gene patents be limited to the function or application of the gene sequence. Pursuant to the Patent Law, gene sequences are granted a scope of protection equivalent to that for ordinary chemical substances – an absolute protection.

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    Wu Li is a senior consultant of AnJie Law Firm. He can be contacted on +86 10 8567 5952 or by e-mail at wuli@anjielaw.com

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