China’s Patent Law revised in 2008, introduces a new stipulation that “No patent right shall be granted for any invention-creation which is completed on the basis of genetic resources of which the acquisition or use breaches the stipulations of related laws and regulations” (Article 5 Paragraph 2). In order to ensure the implementation of this stipulation, the revised Patent Law introduces a further stipulation that “an applicant who files a patent application for an invention-creation completed on the basis of genetic resources shall in the patent application document indicate the direct and original source of the genetic resources; the applicant unable to indicate the original source of the genetic resources must provide an explanation” (Article 26 Paragraph 5).
“The purpose of the new stipulation is to regulate the act of acquiring and using genetic resources by way of violating the Convention on Biological Diversity and the related stipulations of China’s laws”, commented Edward E. Lehman, Managing Director of Lehman, Lee & Xu.