The two have the following main differences:
1. The essential attributes of new plant varieties and invention patents are different.
New plant varieties are not inventions, but only the transformation of existing plants. New plant varieties are the improvement and utilization of the original products in nature, not brand-new products created by people, and cannot be produced by industrial methods, so they do not have creativity in the sense of patent law, so the patent law stipulates that the invention patent right shall not be granted. Invention-creation as mentioned in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement. It mainly includes product invention and method invention. Compared with invention patents, new plant varieties are transformation and creation. The former is the result, the latter is the procedure; The former maintains stability while the latter pursues development.
2. The authorization conditions of new plant variety right and invention patent right are different.
An invention granted a patent right shall be novel, creative and practical. The new plant variety applying for variety right shall have novelty, specificity, consistency, stability and proper name. Compared with the two, except for the different novelty standards, the main differences are as follows: patented inventions should be creative and practical; New plant varieties granted variety rights only require specificity, not creativity and practicality.
3. The protection scope of new plant variety right and invention patent right is different.
The International Convention on the Protection of New Varieties of Plants and the Regulations on the Protection of New Varieties of Plants in China clearly stipulate the scope of protection of variety rights, that is, the breeding materials of authorized varieties. Although the specification of variety rights includes a detailed description of the pedigree, cultivation process and the source and name of the parents or other propagation materials used, the applied varieties can no longer be cultivated according to the contents disclosed in the specification, and the contents of the specification are not the carrier of genetic information of new plant varieties, so it is unnecessary and cannot be the scope of variety rights protection. The genetic information of new plant varieties is passed down from generation to generation through propagation materials, which are the protection scope of variety rights. Variety right protects the real thing and is the material that can cultivate new varieties.
The scope of protection of the invention patent right is the content of its claim. The claim shall be based on the specification, clearly and briefly defining the scope of patent protection; The description shall give a clear and complete description of the invention, which shall be subject to the realization of the technical personnel in the technical field. The technical personnel in the technical field to which the invention patent belongs can reproduce the invention according to the technical scheme disclosed in the specification, and the idea of the invention patent can be passed down from generation to generation through the specification, and the content of its claim is the protection scope of the invention patent. Invention patents protect creativity, which is a technology that can manufacture patented products.
4. The production methods and consequences of new plant varieties and patented products are different.
Although reproductive materials and patented products of authorized varieties can be produced, the production methods and consequences are different.
The mode of production of patented products is manufacturing; Copy patented products by manufacturing. Manufacturing is the production of things that are not available, such as making cars with accessories; The nature and form of finished products are different from the raw materials used. This kind of production is to change one article or substance into another, and a qualitative change has taken place.
The production mode of new plant varieties is reproduction; The propagation of new plant varieties is achieved through propagation. Reproduction is primitive production, such as sowing melons and beans; The characteristics of harvested melons or beans are the same as those of planted melons or beans. This production is only quantitative change, not qualitative change.
5. The production of authorized varieties and patented products depends on the obligee and propagating materials to different degrees.
The production of authorized varieties depends on the variety owner.
Breeding materials of authorized varieties must come from the variety owner (including direct or indirect, legal or illegal). Without the breeding materials provided by the variety owner, it is impossible for anyone to produce authorized varieties and their breeding materials according to the detailed description of the breeding process and methods, including pedigree, breeding process and the source and name of parents or other breeding materials used in the application announcement. Without the provision of the variety owner, it is impossible for anyone to obtain the reproductive materials of the authorized variety. The production of authorized varieties depends on the legal authorization of variety owners and the provision of breeding materials.
Patented products are different. The technical personnel in the technical field can realize the patent by knowing the applicant's clear and complete description of the invention from the published patent application specification. The production of patented products has no dependence on the patentee.
(2) The production of authorized varieties depends on propagating materials.
Without the propagating materials of authorized varieties, it is impossible for anyone (including the licensee who exercises variety rights or the transferee who transfers variety rights and all technicians in their technical fields) to produce authorized varieties and their propagating materials. With the breeding materials of authorized varieties, anyone who doesn't know the breeding process and method of authorized varieties (including pedigree, breeding process and specifying the source and name of parents or other breeding materials used) can "sow as you sow" even if he is not a technician in this technical field. That is to say, the production of reproductive materials of authorized varieties has absolute and unique dependence on the reproductive materials of authorized varieties.
Patented products are different from authorized varieties. Technicians in this technical field can manufacture patented products as long as they know the applicant's clear and complete description of the invention from the published patent application specification, and there is no patented product. The manufacture of patented products depends on patented technology and has no dependence on patented products.