Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain

Zhang Xiaodong

doi:doi:10.11648/j.ijls.20210401.16

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Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain

Zhang Xiaodong

Published in International Journal of Law and Society (Volume 4, Issue 1)

Received: 17 February 2021 Accepted: 3 March 2021 Published: 17 March 2021

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Abstract

Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.

Published in	International Journal of Law and Society (Volume 4, Issue 1)
DOI	10.11648/j.ijls.20210401.16
Page(s)	47-53
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2024. Published by Science Publishing Group

Keywords

Deposit Number Limited Claim, Strain, Interpretation of Claim, Furnishing of Deposited Strain

References

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[2]	United States v. Bottone, 365 F. 2d 389 (1966).
[3]	Diamond v. Charkrabarty, 447 U.S. 303 (1980).
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[5]	Anna-Ida Johnsson Holmberg, PetterMelin, Jens P. Levenfors, Ingvar Sundh. Development and evaluation of SCAR markers for a Pseudomonas brassicacearum strain used in biological control of snow mould [J]. Biological Control, 2009, 48 (2): 181-187.
[6]	WX31871, Judgment of Reexamination and Invalidation Department of the Chinese National Intellectual Property Administration. http://reexam-app.cnipa.gov.cn/reexam_out2020New/searchdoc/decidedetail.jsp?jdh=31871&lx=wx, last visited Jan. 22, 2021.
[7]	Schoch CL, Seifert KA, Huhndorf S, et al. Nuclear ribosomal internal transcribed spacer (ITS) region as a universal DNA barcode marker for Fungi [J]. Proceedings of the National Academy of Sciences of the United States of America, 2012, 109 (16): 6241–6246.
[8]	Organism name: Hypsizygusmarmoreus (basidiomycetes). ASM160531v2. [GenBank] IDs: 1834041 [UID] 6946218, Date: 2018/07/25, https://www.ncbi.nlm.nih.gov/assembly/GCA_001605315.2/, last visited Jan. 22, 2021.
[9]	He Peixin. Advanced Microbiology. China Light Industry Press, first edition in August 2017: 298.
[10]	Gregory B. Sephton. Biotechnology: The Doctrine of Equivalents and Infringement of Patented Proteins [J]. Suffolk University Law Review. 1991, 25 (4): 1035 -1070.
[11]	Harold C. Wegner. Equitable Equivalents: Weighing the Equities to Determine Patent Infringement in Biotechnology and Other Emerging Technologies [J]. Rutgers Computer & Technology Law Journal, 1992, 18 (1): 1-50.
[12]	Microorganisms Deposits and Samples (2001 - 2019), Source: WIPO Statistics Database (August 2020), https://www.wipo.int/treaties/zh/registration/budapest/, last visited Jan. 22, 2021.
[13]	U.S. General Accounting Office. Report to Congressional Committees GAO-01-49, Intellectual Property: Deposits of Biological Materials in Support of Certain Patent Applications (Oct. 2000), www.gao.gov/new.items/d0149.pdf, last visitedJan. 22, 2021.
[14]	Section E: Requirements of Industrial Property Offices of States Party to the Budapest Treaty and of intergovernmental Industrial Property organizations. https://www.wipo.int/export/sites/www/treaties/en/registration/budapest/guide/pdf/section_e.pdf, last visitedJan. 22, 2021.
[15]	Streitz W D, Bennett A B. Material transfer agreements: a university perspective [J]. Plant Physiology, 2003, 133 (1): 10-13.

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APA Style

Zhang Xiaodong. (2021). Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain. International Journal of Law and Society, 4(1), 47-53. https://doi.org/10.11648/j.ijls.20210401.16

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ACS Style

Zhang Xiaodong. Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain. Int. J. Law Soc. 2021, 4(1), 47-53. doi: 10.11648/j.ijls.20210401.16

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AMA Style

Zhang Xiaodong. Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain. Int J Law Soc. 2021;4(1):47-53. doi: 10.11648/j.ijls.20210401.16

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@article{10.11648/j.ijls.20210401.16,
  author = {Zhang Xiaodong},
  title = {Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain},
  journal = {International Journal of Law and Society},
  volume = {4},
  number = {1},
  pages = {47-53},
  doi = {10.11648/j.ijls.20210401.16},
  url = {https://doi.org/10.11648/j.ijls.20210401.16},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210401.16},
  abstract = {Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.},
 year = {2021}
}

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TY  - JOUR
T1  - Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain
AU  - Zhang Xiaodong
Y1  - 2021/03/17
PY  - 2021
N1  - https://doi.org/10.11648/j.ijls.20210401.16
DO  - 10.11648/j.ijls.20210401.16
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 47
EP  - 53
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20210401.16
AB  - Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.
VL  - 4
IS  - 1
ER  -

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Author Information

Zhang Xiaodong

Law School, East China University of Science and Technology, Shanghai, China

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Plain Text BibTeX RIS

APA Style

Zhang Xiaodong. (2021). Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain. International Journal of Law and Society, 4(1), 47-53. https://doi.org/10.11648/j.ijls.20210401.16

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ACS Style

Zhang Xiaodong. Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain. Int. J. Law Soc. 2021, 4(1), 47-53. doi: 10.11648/j.ijls.20210401.16

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AMA Style

Zhang Xiaodong. Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain. Int J Law Soc. 2021;4(1):47-53. doi: 10.11648/j.ijls.20210401.16

Copy | Download

@article{10.11648/j.ijls.20210401.16,
  author = {Zhang Xiaodong},
  title = {Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain},
  journal = {International Journal of Law and Society},
  volume = {4},
  number = {1},
  pages = {47-53},
  doi = {10.11648/j.ijls.20210401.16},
  url = {https://doi.org/10.11648/j.ijls.20210401.16},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210401.16},
  abstract = {Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.},
 year = {2021}
}

Copy | Download

TY  - JOUR
T1  - Research on the Scope of Deposit Number Limited Claim of Strain Patents and the Furnishing of Deposited Strain
AU  - Zhang Xiaodong
Y1  - 2021/03/17
PY  - 2021
N1  - https://doi.org/10.11648/j.ijls.20210401.16
DO  - 10.11648/j.ijls.20210401.16
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 47
EP  - 53
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20210401.16
AB  - Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.
VL  - 4
IS  - 1
ER  -

Copy | Download