農業生技之法律保護——以印度為例

Legal Protection of Agricultural Biotechnology–Cases From India

生物科技可以應用之範圍相當廣泛，諸如農業生技及醫藥生技等等。有時候，農業生技與醫藥生技二者間，難以區別，如草藥技術等。農業生技又與氣候變遷、糧食問題等公共利益之議題有關。近年來，全球農業生技市場規模亦有相當規模，全球基改種子市場以耐旱和抗病蟲害兩大特性為主。又因印度為全球主要的基改作物種植國家，惟印度農業有「種子不合作運動」（Bija Satyagraha）等爭議，自應有了解有關印度基改植物之法律保護制度之必要。印度為TRIPS、CBD之締約國，但非UPOV公約之締約國，印度已配合TRIPS修訂其國內專利法，印度亦非常重視傳統知識被外國企業壟斷之情形。雖然印度非UPOV公約之締約國，但印度也有按TRIPS就植物之保護所規定之雙軌制，採取以專法之立法方式，訂定PPV&FR Act。而其所繁殖或養育之植物新品種，只要符合法定要件，是可依PPV&FR Act保護。但以非主要生物學方法，所繁殖或養育之植物新品種，如基改植物、其基改方法以及核酸序列等，其以何種法律方式保護，則較有疑義。印度基改棉花案又是近幾年的爭議案子，而香米案卻能讓相當敵對的印度與巴基斯坦兩國，一起共同對抗美國公司的專利案。因此，本文則從相關基改植物之國際法及印度國內法，再引用印度基改棉花案及香米案，加以說明印度政府及其法院對於關於基改植物技術之態度。

Biotechnology can be applied in a wide range of fields, such as agricultural biotechnology and medical biotechnology. Sometimes, it is difficult to distinguish between agricultural biotechnology and medical biotechnology, such as herbal medicine technology. Agricultural biotechnology is also related to issues of public interest such as climate change and food problems. In recent years, the scale of the global agricultural biotechnology market has also reached a considerable size, and the global genetically modified seed market is dominated by two major characteristics: drought resistance and disease and pest resistance. Also, since India is a major country in the world that grows genetically modified crops, but its agriculture is subject to controversies such as the "Seed Non-Cooperation Movement" (Bija Satyagraha), it is necessary to understand the legal protection system for India's genetically modified plants. India is a signatory to TRIPS and CBD, but not to the UPOV Convention. India has revised its domestic patent law in line with TRIPS. India also attaches great importance to the situation where traditional knowledge is monopolized by foreign companies. Although India is not a signatory to the UPOV Convention, it has also adopted the sui generis system stipulated in TRIPS for plant protection and adopted a special legislative approach to enact the PPV&FR Act. The new plant varieties propagated or cultivated by them can be protected under the PPV&FR Act as long as they meet the legal requirements. However, it is more questionable what legal means should be used to protect new plant varieties that are propagated or cultivated using non-essential biological processes, such as genetically modified plants, their genetic modification methods, and nucleic acid sequences. The Indian genetically modified cotton case has been another controversial case in recent years, while Basmati Rice case has allowed the two relatively hostile countries, India and Pakistan, to jointly fight against the patent case of an American company. Therefore, this article will use the international law and Indian domestic law related to genetically modified plants, and then cite the Indian genetically modified cotton case and Basmati Rice case to illustrate the attitude of the Indian government and its courts towards genetically modified plant technology.