The legal system of sharing and the benefits of acquiring American review of biological genetic resources
                                 -- to American National Park Management Center
                                                      Wang Mingyuan
Abstract: share and benefit the establishment and perfection of legal system access to genetic resources, has become an important content of ecological security and sustainable development. This paper examines the American share different models and methods in practice for the artificial cultivation of resources and natural resource use and benefit in the biological genetic resource acquisition, and through the American natural genetic resources are the most abundant and concentrated practice National Park in this aspect research, introduces and comments on the USA biological genetic resources the basic framework and benefit sharing legal acquisition and benefits system.
Keywords: genetic resourcesObtainBenefit sharing
Wang Mingyuan, doctor of law. Associate Professor, Tsinghua University School of law, executive director of environmental resources and energy law research center of Tsinghua University.
A
LeadWords
   Biological diversity on science and technology and economic and social development plays a more and more important role. Although the biological genetic resources has long been an important raw material for agriculture and medicine, but the development of modern biotechnology, also opened a new. With the improved genetic control,Demand for agricultural genetic resources has increased significantly, although this needs many of the domesticated species gene demand, but the characters of biological genetic improvement of people constantly pursuit, the wild species began to search for new genes into. People increasingly aware of the diversity in the wild creatures, there is far from the development of the rich resources and wealth. Obviously, the protection and sustainable utilization of biodiversity is the two run parallel themes, and in the process of acquisition and Hui Yi Building and sharing system is the central resource, biological genetic link, for the international community and the world.
   In the United States, approximately 2 5 % of hospital prescription drugs, the active ingredients are extracted or derived from plants. These derived from plant
The drug, its sales in twentieth Century reached 80 in the early 1980s to about $5000000000, 90 in the mid-1990s to $15500000000, to 2 1 at the beginning of the century, has reached 40000000000. In the field of agriculture, biological technology also leads to more use of biological diversity in agricultural production. Genetic diversity hasThe main raw materials of agricultural research in , only to the 90's, up to America agricultural production 1960 - 1990 annual income halfOn the. [Although the past] only crop relatives could be used in breeding programs, but now based world the biota from can to use.
   In the protection of biological genetic resources, on the one hand America enacted a series of laws and regulations, on the other hand, the United States established capital source perfect preservation system. In addition to -- national seed seed bank maximum storage Laboratory (N S S L), America many areas and specific species the genetic biodiversity research and practice, and using the protection of genetic resources are mainly concentrated in the field of plant genetic resources, so this paper involved genetic resource conservation and management, mainly in the aspects of. 
  
  Library (such as grains, vegetables), America National Plant Germplasm System (hereinafter referred to as the N P G S ) comprises 19 organizations and institutions, mainly responsible for plant germplasm collection, collation, preservation, identification, improvement and promotion work. USA government attaches great importance to introduce variety from the countries of the world to be modified, all kinds of plant genetic material collected so far has reached 550, 00 0 . American Congress also approved the Ministry of agriculture on animal and plant gene (including micro biological gene) research project, aims to collect more widely and identification of various types of biological genetic resources. N P G S work of large capacity, high efficiency, but also actively involved in the international bilateral and multilateral cooperation and exchange, 1986 - 1992, the N P G S each year to provide 175 to the whole world, 400 samples (the D]
   America protection of biological resources, including two parts, namely, genetic resources and artificial cultivation has been without natural genetic resources and artificial cultivation process. For the former, clear domestic laws and regulations adjustment, for their resources to obtain clear point, benefit distribution system is relatively mature, mainly to pay royalties or fees for the use of monetary theory was not much, in practice and controversy; and for the natural genetic resources obtain and special legislation to manage the natural genetic unity, the United States is still not the development and application of benefit divided enjoy, basically by some other department law such as "science and technology transfer method", "the Endangered Species Act" to adjust, the benefit sharing system has not a clear framework , the main principles in legislation, public, Biotech Corp, resource providers ask also had the certain. But in practice, some USA Business Companies or through the contract way to solve the benefit sharing.
Two artificial cultivation of access to genetic resources and benefit sharing
   In 19 years America 3 0 revised "patent law", an increase of fifteenth chapter "plant patent" , began to cultivate crops varieties of patent protection,But the scope is very narrow at the beginning, only allow for such as Rosaceae plants, ornamental plants and fruit trees and other plant reproduction, however the potato, Lily rhizome propagation through tuber crop out in the. 2 0 century after 60 time, the European countries have set up their own laws to protect the rights of breeders, and the sexual reproduction by obtaining and stable consistent varieties also included.
  In view of this change, the negotiations America in subsequent years hand actively involved in international agreements and sign, join "the international plant
Convention on the protection of new varieties of "(hereinafter referred to as the U P O V)," WT O and trade related intellectual property rights agreement "(T R I P s) and other international treaties; at the same time in the domestic have formulated or revised" America Plant Variety Protection Law "(1970)," the federal Seed Act "(1967, 1 988, 1998)," the federal plant patent law "and other laws, protection by means of artificial cultivation of genetic constructs to plant patents and plant variety protection for resources.

    Will expand the scope of intellectual property rights to genetic resources. In 1980, the United States has taken the most important step, when the United States Supreme Court on Diamond Corp v. Cha Korah Battie verdict, according to the patent law standard can be achieved through genetic improvement of bacterial patent (America Federal Supreme Court, 1980, U 4 4 7. S. 303). 3.Comprehensive American legal policy currently, for new varieties of artificial cultivation, protection provided by law mainly includes the following several kinds of forms: needle on plant species asexual reproduction plant patent; the plant variety protection certification plant sexual reproduction; for plant varieties of sexual reproduction and asexual reproduction of utility.
    A personal protection on the same plant species can also obtain the above three types of. In addition, also can be the new varieties of plants by means of Trademark Law
Trademark protection. [)
(a) plant patents for plant varieties of asexual reproduction
    According to the "patent law", plant patent for "new varieties of plants with asexual reproduction are obtained, including through mutation, mutation or hybrid approaches of stable varieties ", but not "get varieties by root tubers". New varieties must be found and be stable on the characteristics of the in the cultivation process, in the natural environment in cultivars obtained is not here.Patent protection period of patent protection is 2 0 years, in the period of protection of the exclusion of other human asexual reproduction of this plant, or the sale or use of vegetative propagation of this plant. Sexual reproduction (seed) and use or sell in this way bred seedlings, does not constitute the plant patent. The plant patent protection is only the plant itself, does not include the part of plants, such as flowers, fruit,: branches, seed. 
 
(two) for plant variety protection of plant varieties of sexual reproduction
Patent law is obtained through asexual reproduction plant material, and "Plant Variety Protection Act" is obtained through sexual reproduction of plant material. " Plant Variety Protection Law" basically is according to the U P O V Domestic 19 7 8 text and make, in addition to the adjustment object, another difference between it and the original "patent law" is that, with any patent application conditions of asexual reproduction materials according to the "patent law" requirements of patent protection for plant species; but "Plant Variety Protection Act" in law in advance to give legal protection list, list of column names in the plant, varieties can be.
  According to "the 1 Plant Variety Protection Act" Clause 1 1, protected species and its affiliated itself and the harvested material varieties were law
The protection, the protection period of 18 years. Without authorization, any other person shall not production, sale, import and export and commercial storage. The so-called "affiliated varieties", refers to the following three: 1 the essence of self protected varieties breeding varieties, and protected species not breed from other species; 2 . and protected species did not significantly difference between varieties; 3 . to be protected varieties for hybrid parents.The plant variety protection in this way have an important special case, that farmers have the right to store seed or the seed production for own use. Farmers can also to reproduce the varieties for the purpose of selling the storage varieties, but these seeds must be planted this to yourself in the land plants. In this way, a farmer to grow the plant the seeds stored in their own land, if he changed the original plan, he can sell it. In this particular case, whether purchasers or sellers must be farmers, the main occupation is cultivation in the crop, and the crop to sales, not the crops. []
(three) the patent protection of plant new varieties of practical
   New plant varieties protection utility patents have greater range. Relatively speaking, a utility patent holders have the right to prevent unauthorized production, use, provide sales quotation or sales activities on its patented varieties, or import the patented. Unauthorized production activities including protection of plant varieties of sexual reproduction and asexual reproduction.

   Part of utility patents can protect a of new varieties of plants or their products utility patents, which can also be effective protection of plant varieties
Part of the organization or its products, flower, fruit, seed, pollen, plant oil, culture and the plant regeneration. The utility patent can check part of import of patented plants, or to the plant as raw material to produce other products.
   A new plant varieties in utility patents, patent content is different, may need than a plant patent technology announced more. If the utility patent inventor satisfied only to prevent others from making, a use and sale of the plant variety or the plant variety part, then, compared with the plant patent and plant variety protection method of authentication, do not need to publish more technical details. If the other plant utility patents inventor also want to cultivate on the invention of the plant variety as female parent material to claim it, ,He may be required to accurately the plant variety is how to cultivate it.
(four) the trademark protection of new varieties of plants
      Recently USA breeders to better protect their variety, try to through the trademark legal system for the protection of new varieties of plants.The value of trademarks and patents, registered trademarks can also produce benefits. Not the name of plant species to obtain trademark protection.If the main attributes of a trademark is the name of a plant, you will probably lose trademark protection. Select logo should be distinguished and universally applicable for new varieties of plants. Should avoid the use of place names, or only as a descriptive name, logo and name and with other organizations in conflict. [6.
In brand choice, should avoid conflicts with the existing trademark. In American, on a practical use of the trademark, or an intention to use the mark , can apply for trademark registration. The latter can enable the applicant to obtain an earlier date of declaration, and enable the applicant to profit, because the register relating to the subject of rights and application date. The registered trademark American can also as the basis for foreign trademark registration.From the above America on artificial cultivation legal protection of genetic resources, breeders can factor in the important degree and type of protection of plant varieties of their reliability etc. forms of protection of plant varieties, selection. In some cases, trademark protection is only available in the form of. In another case , using utility patents or utility patents and trademark protection combined forms of protection can beMore suitable. In the choice of the form of protection after , breeders should consider how to promote their own plant varieties. For example, issuing permits way may be the ideal way to promotion of plant varieties. If the plant variety protection of breeders is large enough, so that other people dare not violate his rights, it is the most ideal; if not, the breeders in order to protect their own interests, only to the infringement.

ThreeAccess and benefit sharing of genetic resources of nature
  Genetic resources of the state of nature outside, including the artificial cultivation resources and shift (e x S i t U) preserved in the collectionNatural resources, regardless of the nature of its ownership is public or private, as long as it does not belong to the special protection of the state on the verge of extinction creature, it is open, only need to pay a fee, legal restrictions have not mandatory. But for the natural state (i n S i t U) genetic resources, situation is relatively complex, the access and benefit sharing system cues does not.
(a) foreign natural biological resources
   USA not UN "Convention on biological diversity" of the contracting parties. Sharing and benefit in the acquisition of the treatment of foreign resources, American attitude "and" Convention on biological diversity spirit is different. America has always adhered to the "contract system" position. American think, in this mechanism, contract obligations shall authorities a request was granted access to genetic resources right direction corresponding to report any invention, and should any patent application show that access to genetic resources from , and providing access to the corresponding right clause.
    In 1991, American drug company Mike Corporation and the Costa Rica National Biodiversity Institute announced an agreement. According to the agreement , Institute for drug screening of Mike company plan, provide extracted from wild plant, animal, insect and microbial Costa Rica wildlife reserve in chemicals, and the Institute has received $1135000 in fees for the use of any goods -- including two years research and sampling budget allocations and resulting the. The Institute is the budget of 10% and 50% of royalties shall be turned over to the National Park Foundation , used to protect the Costa Rica National Park, and the Mike company is unified to provide technical assistance and training, to help in Costa Rica establish a drug research team. []
    USA that superiority of agreement between Mike and Costa Rica National Biodiversity Institute makes "CBD
About "the regulation is not necessary. In 2002 November 6 13, American signed the United Nations Food and Agriculture Organization issued the " grain and the international plant genetic. The treaty", and quickly obtain congressional approval. In December the same year, the United States also submitted to the world intellectual property organization a documentation, initiative to establish national genetic "contract" is the core of resource acquisition mechanism, display USA is actively to establish the "contract"The sharing system of the access to genetic resources and benefit as the core.On international contract setting, USA proposal has two modes. The first is " USA National Cancer Institute" mode. America's national cancer research with the worldwide acquisition with anticancer potential natural samples, and then transported back to the United States country laboratory to analyze these samples. The US national cancer research promises to provide a portion of the sample can be shared in from these natural samples of commercial and obtained licensing fees,Provide training and in the United States in laboratory for these countries to send scientists. Second is the "Shaman pharmaceutical company" mode. The shaman pharmaceutical company mode, but also the natural samples back America laboratory. Different from the above models American National Cancer Institute is a non-profit company, through which the Shaman's separate, provide payment product licensing fees to the sample. [8 )
(two) the natural biological resources in China
   American biological resources are very rich, because USA has varied climatic conditions, has vast territory and long coastline, formed the unique ecological environment and species, is one of the richest countries in the world 1 2 biodiversity. From the distribution of these biological resources, these resources are being bred in the number is numerous and vast national park. From 18 7 2 years the United States set up the first National Park (national level similar to the nature protection area of our country) to now, through the development of nearly 1.5 centuries, the United States government set up a total of 84 national public 3
Park, including 57 natural National Park and 327 other natural and historic resort, covers a total area of 8, 300 and Wan Yingmu, including the basic American all biological resources for survival and reproduction. Therefore the discussion USA how to manage and protect domestic natural resources, we mainly study some of the specific America National Park in. 

1 USA national park management system and the related legal policy
In 1916, America is founded by the Ministry of the interior's national park authority through legislation, the unified management and protection of national parks and
National monument. From the national point of view, so far, the adjustment of national park management laws and policies include: []
(1) "organization" (National Park Service method E IV P s O r g a n i c A C t )
Congress established the National Park Service in 1916, its purpose is to "protect the National Park region, natural landscape, historical sites ,Wildlife communities from destruction, take effective measures, so that all these heritage for future generations can continue to enjoy the people ". The law established the basic framework of national park management system.
(2) "the comprehensive management in 1998 the National Park Law" (T h e N a t i o n a l P a R k s O m n I B u s Ma n a g e m e n t A c t O F1 9 9 8)
"Integrated management in 1998 the National Park Law" authorized the National Park Service structure and research relates to the biological resources in National Park region "and Business Companies on how to establish equality , effectively share the benefits of agreement", the provisions of the National Park Authority became a party to protocol. In addition, the law requires to increase national park scientific investigation, including the biology resource census and resource potential economic utility survey. At the same time, require the use of the park management decision fully reflect the science and technology. The method to encourage private and public research institutions to conduct scientific research and investigation on national park.
(3) "in 1986 the federal technology transfer act" (T he F e d e r a l T e c h n o l o g y T r a n s f e r A c t O F1 98 6 )
"In 1986 the federal technology transfer act" for science and Technology Development Co laboratory and Private Companies federal belongs to the set a legal system framework. One of the most important measure is the cooperative research and development agreement. According to the definition of the method of cooperative research and development agreement, this Agreement applies to the following situations: if a party for the federal state laboratory, another party for private research institutions or,The two sides to carry out cooperative research and development, which provides the human, service, tools, facilities or other related resources by the Federal Laboratory; or private research institutions or companies to provide financial, human, services, tools, facilities or other related resources, both sides agreed research development objective and direction and carry out cooperative research so, this class of protocols can be called cooperative research and development agreement, one of the key points in the United States agreement
Laboratory party did not pouring money into research projects of obligation.The establishment of cooperative research and development agreement system for the Private Companies through to the Federal Laboratory investment funds or other professional knowledge for research on resource , Federal Laboratory in research provides opportunities and rights.
(4) "the federal government regulations" (T he C o d e O fF e d e r a l R e g u l a t i o n s )
  "Regulations" the federal government management requirements, carry out investigations and studies in the National Park, must first apply for a study permit. License to
Research provides many restrictive, lest the investigation have a negative impact on the national park. In addition, in the National Park, adjustable
Research for biological material, only to study it, prohibit the sale or other commercial use. Only new products obtained by the research and development of biological materials after, can be for commercial use.
(5) "2001 National Park Management Policy" (Ⅳ P s 2001 Ma n a g e me n t P o l i c e s )
  "2001" national park management policy statement again, special "unless authorized by law, or to be engaged in this line for legitimate rights and the rights not to date of termination, the state any from the park has biological materials shall not be used for. Collected by the students
Material (whether in vivo), if you want to use for commercial development, have to pass a special permit to the competent department of the federal ".
   But this policy also encourages " by appropriate means of scientific research, in the premise of legal policy allows for natural resources research". Notable is , this policy on the biological resources of the repeated acquisition and repeated investigation shall be prohibited behavior, that the investigation of behavior and the repeated biological resources, will cause the waste of limited biological resources, even endangers the normal reproduction of these creatures.
(6) "in 1969, the National Environmental Policy Act" (T he N a t i o n a l E n V I r o n me n t a l P o l i c y A c t O f196 9 )
   "19 6 9 years the National Environmental Policy Act" requires the federal government to take a prudent attitude to can have a significant environmental impact behavior. The
Method in such behavior decision, will have this kind of behavior of environmental impact information disclosed to the public. Obviously, and benefit sharing agreement belongs to this kind of environment will produce certain influence to obtain items of national public Park biological resources. "19 6 9 years the National Environmental Policy Act"
The disclosure of the relevant information program makes certain provisions, including information disclosure, way, time limit and so on place.
(7) "the natural resource challenge" (T h e N a t u r a l R e s o u r c e C h a l l e n g e )
   19 9 9 years "natural resource challenge" is a national park management reform plan of the National Park Authority recently released.The plan recognizes the key role of scientific research in park management, "on the biological resources of National Park of long lasting protection makes National Park area of human vital information. So, the National Park should not only emphasize the science and technology as the park management is an important means to , more importantly, should be fully aware of the National Park (because of its rich biological resources) as an extension of the depth of the scientific research
Key places breadth. The premise have negative effects in the wrong Park other functions, in the National Park should be encouraged to carry out scientific research. These items eye, can effective cooperation through university and research institutions to ask realization".If we carefully study, you will find , these laws or policies, mainly focus on the macro management of National Park, the first ecological security barrier National Park, not or rarely involved in biological on national park resources access and benefit sharing. Although the government has intention through a cooperative research and development agreement to promote the development and utilization of biological resources, but according to the law and policy, due to the lack of specific institutional arrangements, resources have strong development desire biological technology biological genetic on National Park, and benefit, in the search for genetic resources the effective way to share, often still. This kind of situation, has been to "publish national park for scientific research and resource collection license regulations" the basic improved.
2 "National Park in scientific research and resources to collect licensing basic regulations"
   (1 ) a Yellowstone National Park di Walesa Biotech Corp research and development cooperation agreement America "National Park in scientific research and resources to collect licensing basic regulations" promulgated, and national park system in the first cooperative research and development agreement, which is a Biotech Corp of Walesa's Yellowstone National Park development cooperation agreement is closely. Because it is around this protocols, rationality of legal disputes, prompted authorities to develop this directly relates to the biological genetic resources National Park access and benefit sharing of regulations. The following will introduce and analyze the most typical cooperative research and development agreement.
  1 ) related background of Yellowstone National Park is a di Walesa Biotech Corp research and development cooperation agreement
   Yellowstone National Park is the oldest established America ( 1 872 years), the largest (covering 8, 956 square kilometers) of the National Park, is currently the largest national park in the world . It is located in the America northwest of Wyoming, Montana and Idaho three at the junction, because the park of the Huangshi River on both sides of the canyon walls yellow, named. Including two national parks, four wild animal protection area and six national forest, at least 25 federal or state government unit joint management, but the practical management department or belonging to the Ministry of the interior of the National Park service. The region of an estimated 10, more than 000 hot springs, geysers, volcano jet zone and boiling marshes and other geothermal area. The heat quantity accounts for about 80% of the world, the earth more than 60% ecological types can be found here. In the park some extreme environment, the habitat of a large number of thermophilic bacteria, T a q is widely used in modern biological technology D N A polymerase is the earliest is separated from the microorganisms from hot springs in Yellowstone National Park, now the enzyme market supply values of each year has reached ten dollars.

   Research and development of Yellowstone National Park cooperation agreement (also known as biological resources exploration agreement) is celebrated in 1997 in Yellowstone National Park as the first
The National Park was founded 100 anniversary of the signing of the ceremony, the main contents of the agreement is: public yuan agreed to survey di Walesa Biotech Corp to carry out biological resources in the park area, obtain an indefinite number of "water, soil, microorganisms, plants, rocks and minerals" samples, and the park has the right to obtain a series of benefit of economy, science and technology, including patent costs and to get industrialization the research and development of biological resources of science and technology and business interests. [10.
2) development cooperation agreement related arguments and results
    Although the research and investigation of the National Park of biological resources has already begun in twentieth Century, but the agreement is the first research and development agreement on biological resources. Some senior officials including Stanton, America vice president Gore, interior minister Babbitt, the National Park Service, this protocol have high expectations, think this not commercial research and development damage environmental protection purpose plan can effectively solve the fund shortage problem of park management, and improve the park management of science and technology. [11]Non government organizations to the Edmund Research Institute LED that produce , which inevitably lead to a large number of other similar protocols: estimation in six years
There will be 6 other such agreement, within ten years there will be 20 this kind of agreement. They think that people on the commercial interests of the chase
And will have a great impact on the safety protection of natural resources, so in 1998 March 5th, Edmund Research Institute jointly International Center for technology assessment and rock protecting non government organizations in this agreement to the district court, the National Park Authority and the Huangshi
Garden Court, think Yellowstone National Park protocol and the National Park Service approval of the agreement in violation of the "management method" and "American Park beauty
The method of transfer of technology "federal federal law, because according to the law, the state-owned research institutions (the Yellowstone National Park as a possession of genetic resources
Laboratory) cannot obtain the commercial interest in providing study materials, if allowed to National Park as a business agreement by one party, then they will
Sacred duty to business interests and ignore their assigned to the protection and management of the National Park, and resources destroying it must be
To be borne by the America all citizens.
   In 2000 April 1 on the 2 day, Columbia District Court judge Rambo, judgment, opinion think that this research development
As the protocol is "right" and "no and the relevant environmental protection laws and regulations of the mandatory any conflict", therefore dismissed the plaintiff's claim. Judge Lanbos said, "National Park Administration agreed to the deal is appropriate, in accordance with the relevant law.Because of this Agreement and no damage to the basic principles of environmental protection at the same time park, can enable people to the park area of biological resources are more
With the clear understanding, this understanding and the resulting economic benefits will help to further the effective protection of the park ", which the plaintiff think
The agreement in violation of federal law including "technology transfer", a number of national laws and regulations is no basis, the plaintiff's argument is based on the
"" the basic spirit of the cooperative research and development agreement system of misunderstanding, the court considers, Congress passed legislation to establish cooperative research and development agreement
The representative system, its purpose is to promote a "efficiency, equality (Research and development results) the benefit share mechanism", "spirit of the legislation further study" the United States Park management method ", a Yellowstone National Park di Walesa Biotech Corp research and development cooperation agreement is consistent with the". (zThe court verdict on the case, the Yellowstone National Park Resource Center Director Vallee (J o h n V a r l e y) to praise, think " Rambo, the judge's decision, the public research and Development Park biological resources protocol is over in one's mind and reason, is conducive to the park this agreement, is conducive to the expansion research, is conducive to the people in the community" O "[] in fact, the the agreement shows position later for the United States National Park protection association support, America National Park protection has played a significant association of America involving natural resources legislation.
3) the Yellowstone National Park development cooperation agreement
    Protocol relating to the sustainable use and protection of ownership, samples, benefit sharing, intellectual property rights, transfer amount, benefit sharing ratio: [content]
A) sustainable use and conservation
   According to the USA environmental protection law, any reference to "will have a profound impact on the human environment in which the federal government activities" must be carried out before the
Environmental impact assessment and environmental assessment. A Yellowstone National Park di Walesa Biotech Corp research and development cooperation agreement to biodiversity investigation as part of a resource management to deal with. This means that, area if the biological sample is not a harmful ecological behavior, from the point of view of the park not to park ecological adverse colony sample survey, the park area activities and influence, at the same time no damage to the park Protect environment. So you can not carry out environmental impact assessment.
B) sample ownership
   The National Park Authority for Yellowstone National Park is owned by the Ministry of the interior USA. "In the National Park. National Park Administration Organization Act"
The provisions of the species collected survey domain. Investigators must submit application for investigation to the park authorities, the application must set
Fine description of the collected objective and investigation to the concrete method. When applying for permission to set the time limit, the applicant can get
Investigation of the license, but the license is only for the investigators collected Species Act permits, does not mean that the investigators on the collected survey
The species of ownership.
C) benefit sharing
   Under the agreement, di Walesa Biotech Corp in the contract lasts five years Yellowstone National Park pay 475, $000, including in the Yellow Stone Park in biological sample survey cost, carry out cooperative research costs and Yellowstone National Park and Yellowstone National Park management fees paid to the.In addition, the main interests of Yellowstone National Park obtained from di Walesa of the Biotech Corp is a commercial profit of the company in Yellowstone National Park, access to biological resources obtained through research and development after the (mainly for the patent fee) part, specific data as the commercial secret is not known, but experts estimate, the proportion of 10% in 5%. The agreement clearly , park all benefit to the park ecological protection and research facilities improved.
D) intellectual property rights
  According to the relevant provisions of the 1986 "USA federal technology transfer act" , owned by the Federal Laboratory, although provided biological resources,But the right to participate in the industrialization of research achievements have won the after commercial profit sharing. Therefore, the protocol is not suitable for "federal technology transfer
"The key is how to understand the law of" laboratory ", whether laboratory belongs to the" national parks and other public areas have the material resources".
(2) "National Park in scientific research and resources to collect licensing basic regulations"
  19 9 8 years, Yellowstone National Park di Walesa Biotech Corp research and development cooperation agreement for National Parks Authority approved and signed soon after, the National Park Service has conducted research on the , inspect if national park each have signed a research and development and benefit sharing agreements, whether it will affect and influence on the ecological park environment. As with Edmund Research Institute and other non-governmental organizations in the case - v., strengthened the National Park Service Implementation of cooperative research and development agreement in the National Park System in the determination. 20 0 0 years, "National Park in scientific research and resources collection license" issued basic regulations, the regulations further clarify the application of National Park in the investigation and study work permit , although its effect level and adjusting range is limited, but the first time very carefully to the access and benefit of biological resources
The share system:
1) be permissions
  Licensee shall have the right to carry out scientific research and resource collection in the permit within the National Park, park, but shall be subject to administrative departments, also comply with all legal system in the National Park, applicable regulations, and other related federal and state. National Park Management Office has the right to supervise Licensee's research work, to ensure that the licensee to compliance with the provisions of.
2) the real information assurance
  The Licensee shall truthfully provide the licensing requirements of information, once found false information, license will be withdrawn. False information provider as the case will be subject to other relevant punishment.
3) transfer ban
  Shall not transfer or change the license. Copy license will be based on the actual number of people participating in the project to study survey issued, each one. If there is adjustment and change the researchers listed on the license, research or field investigation auxiliary personnel shall be in addition to obtain a permit to work copy. In the process of the project, the project is mainly responsible for the people, shall also be sent to the park for scientific research and resources set license Audit Office filing and reporting. A) the necessary changes to the items specified in the permit to carry out the plan and plan; b) the project is mainly responsible for the change; c) project personnel changes or name.
4) license revoked
   If the licensee has the act in violation of the principles of behavior, the license will be withdrawn. If the permit is withdrawn, the licensee may
Application for reconsideration the behavioral science committee office area to the management of National Park, if the reconsideration is established, can to back license.
5) in biological samples (including biological material collection and access)
   Prohibit the collection and acquisition did not specifically stated in the permit of biological samples. General provisions of biological sample collection and acquisition include
The content:
A) relates to the archaeological materials, if there is no access to federal cultural relic exploration licenses, prohibit the collection and acquisition.
B) relates to endangered or rare species, if the bureau is not the federal fish and wildlife management issued the license, prohibit the collection and.
C) to collect the scheme should not cause discomfort when attention, or cause no adverse consequences of consent, or damage the park loop
The normal state of exit and other resources.
D) according to the provisions of the license, the Licensee in the course of the investigation found the new species every year to report at least once a park. Reporting must be
The method comprises the following contents: samples, collected sample number, location of sample collection, sample preservation condition (such as dry, wax, alcohol or formalin)
E) from samples collected in the study, if still not destroyed, belongs to the federal property bureau, National Park
The right to dispose of the above sample residue, without the written consent of National Park Authority, no person shall any damage or destroy.
F) from the park to obtain any biological sample, must be affixed with the national park service identification, and included in the National Park of biological.
In the absence of special provisions, the licensee has obligations to complete such a biological sample archiving, including identification, inventory and other attached
Add information. The licensee has the obligation to preserve biological samples according to the National Park Service requirements.
G) collected biological samples can only be used for scientific research or educational purposes, and should take into account the interests of the public, at the same time, meet the national
The park service a series of regulations in the public right to know.
H) any biological samples collected in the permit license, any part of biological samples (including but not limited to natural biological,
The enzyme, biologically active macromolecules, genetic material or seed), only for scientific research and educational purposes, not for commercial or other profit objective, but except the Licensor and park signed a cooperative research and development agreement or other similar protocols. Without exception protocol
Under the conditions, if the licensee who sells from park to obtain biological sample, the National Park Service has the right to require the licensee to act
Compensation, and retained for further investigating its legal liability.
6) report
  The Licensee shall be submitted to the annual report, and research publications or other research by the obtained. Annual report
To commit time and specific format developed by the National Park service. The National Park Service designated Park research institutions to report, and
According to the different situations require the licensee to submit further material including field survey records, databases, maps, photos etc.. The licensee to
Be responsible for the authenticity of the materials submitted.
7) a confidentiality clause
The licensee to park sensitive resources of the confidentiality obligations. Sensitive resources include: rare species, endangered species, threatened
Kind of, archaeological region, cave, fossils, mineral deposits, commercial value resources and ancient religious rituals etc..
  In addition to the above contents, including insurance clauses (for special projects, considered necessary insurance, license applicants should be insured), machinery and equipment (prohibit Licensee in the park designated or potential wildlife living area, transport equipment and the use of any large machinery), national the park administration participation clause (no written agreement, in particular the licensee has no right to request National Park Management Office on the projectImplementation to any auxiliary), the date of termination (end on the license, the Licensee right is terminated, shall not continue) more than twenty, very careful. [)
FourExperience and thinking of the USA
   We will American biological framework of access to genetic resources and benefit sharing law system and summarized and illustrated as follows:
   Integrated view USA, according to the present law, for the non natural genetic resources samples, obtained both public and private, are open,No mandatory legal restrictions, only for the protection of endangered species to obtain resources. In the natural state
Acquisition of the genetic material, if private ownership, the law does not do interference. On the genetic resources, the existing laws have not universal norms.
   But we can take from USA national park management system introduced American on general management mode of natural biological genetic resources: the left
Transmission resources are owned by the state, by the National Park Service Director, specific management by the national park. Then, the general model is, by the National Park
Bureau is responsible for the examination and approval of access to resources, benefit sharing scheme by the national parks and access to resources to negotiate, the last by the State Park tube
Management Bureau confirmed. In this process, the National Park Service considered applicable law and policy is "science and technology transfer act", "endangered species protection law", " national park management method", "National Park in scientific research and resources to collect licensing regulations" and other basic.
   Notable is, although American on biological resources access and benefit sharing are in favor of agreement or contract mode, but also the mode
Type, America treatment of foreign and domestic bio genetic resources differently. In the treatment of foreign genetic resources, USA against sovereign state
Especially the governments of developing countries by its domestic law to the domestic access to genetic resources and benefit sharing too much interference, hope for
Big companies USA biological technology developed for other genetic resources to remove institutional obstacles, the biological genetic resources of national sovereignty
Stressed, but it is the "pursuit" Convention on biological diversity goals. Then in American management on its domestic genetic resources, will find a
More government intervention. In the modern society emphasizes the fair resource and sustainable use of biological resources, the state of access to and benefit sharing of control is essential. The two position American did by people's criticism. If America hope don't take relaxed attitude to the genetic resource management, then it should also open their own natural resources to the foreign country to the same degree. People think, a
American claims, contract mechanism, is a promising experiment, can be used to other biodiversity utilization reference, but it is not the future model of the ; on the other hand, the development and use of biological resources and is not only the technology and economic issues, at the same time
System to the ecological security, out of the government regulation, may have unpredictable consequences for ecological and environmental. [1 6 )
And the United States, China is one of the world's biodiversity is one of 12 the most abundant, occupy the world 1 of the total species above 0 %. Since the importance of biological genetic resources, is widely known, some developed countries have been through and through many unfair
Means of access to China rich germplasm resources, and from which we identified and isolated breeding new varieties of excellent genes using high-tech, in turn through the known
Intellectual property rights to restrict the use of germplasm resources Chinese. Therefore the China resources sovereignty and security have been crunch time. [] according to "
Our country law, natural genetic resources belong to the state, any person can not claim ownership, and from the distribution of natural biological genetic resources in China
The situation, mainly in our country to set up some nature reserve. Therefore, comprehensive USA on domestic biological genetic resources especially for the country
International Protection of park resources and benefit sharing system, study experience, is a reference for the improvement of our country's biological genetic resources management system
Meaning, worthy of further in-depth and meticulous research.

Reference material.

[1] see [America] Walter A Reed: "the development and utilization of biological diversity", translated by Ke Jinliang, China Environment Science Press 1 9 9 5 edition, l 5 L 8 pages.
[2] see Lu Xin stone, He Qi: "USA plant genetic resources management and development", "the world's agricultural)) in 1997 1 K stage 4, twenty-third - 26.
Zhang Naigen: [3] see "America patent law case analysis", China University of Political Science and Law press, 1995 edition, fifty-sixth, 6 2.
(4] see Wei Yanliang: "patent protection of biotechnology research", intellectual property press, 2004 edition, thirtieth, 3 8.
[5] see Huang Jisheng: "the protection of intellectual property rights" on plant USA, "intellectual property) in 1997 first period, twenty-third - 2 5.
Li Yunkun: [6] see "America protection of plant varieties form", "world forestry research" in 1998 fourth period, forty-third - 4 7.
[7) see [America] Walter A Reed: "the development and utilization of biological diversity", translated by Ke Jinliang, China Environment Science Press 19 9 5 edition, thirty-second pages.
[8). See Synonyms at Yu Wenxuan: "theory of international bio safety law benefit sharing system", W W W o r b. J. C o m / Z Y w / n 3 62 / C a 296222 h t M.
[9] Data sources: http: / / www NPs g0v / bene nature . Tssharing / legal. HTM, 2002
[10] the data source: h t t p w w: / / W. e d m o n d s i n s t i t u t e. O r g / y e l l o w s t o n e. H t m l, 199 8
[11] the data source: h t t p w w: / / W. y e l l o w s t o n e p a R K n e t. C o m / a r t i c l e s / b i o p r o s p e c t i n p g. H p, 2001
 12. Data source: h t t p: / / w w w a t u r. N e. N P S. G 0 V / b e n e T s s h a r i n g / L A MB e r T H 2 P D F, 2001; h t t p w w: / / W. y e l l 0 w s t 0 n P a R K N E T c o m r _ / a t i C L E S / b I o-
PR OS PE CT i n g. PHP, 2001
1 3 ] Data sources: h t t p w w: / / W. y e l l 0 W S 0 N e p a [R K N E T c o m r _ / a t i c l e s / b I o P R o s p e c t i n g. P H P, 2004
(14] data source: h t t p w w: / / W. D E h g o v. A. U / b i o d i v e r s i t y / S C I E N C E / a c c e s s / i n q u i r y / a p p e n d I x 9 h t ml. 2000
[15] data source: h t t ww. N P p: / / w s. G o v / y e l l / T e c H n i c a L / r e s e a R C H P E R Mi T S / g e n e r a L C o n d i t I o n s. H t m, 2002

[I 6] see [America] Walter A Reed: "Exploitation" of biological diversity, Ke Jin Liang et al China Environment Science Press, 1995 edition, thirty-fourth - 38.
[17] see Liu Xu: "China biological germplasm resources science report", Science Press, 2003 edition, the 2 - 5.