(Sept. 17, 2008) On August 28, 2008, China's State Council promulgated the Measures of the People's Republic of China on the Examination and Approval of the Import and Export of Livestock and Poultry Genetic Resources and of Their Utilization in Cooperative Research with Foreigners. The Measures go into effect on October 1. For the definition of livestock and poultry, the Measures refer to the list found in article 11 of the Law on Animal Husbandry (in force on July 1, 2006; for an English translation, see National People's Congress Database of Laws and Regulations, available at http://www.npc.gov.cn/englishnpc/Law/2007-12/13/content_1384134.htm (last visited Sept. 5, 2008)). “Livestock and poultry [or, domestic breeds] genetic resources” are defined in the Measures as “livestock and poultry and their ova (eggs), fetuses, semen, genetic material, and other hereditary material” (art. 3, Zhonghua Renmin Gongheguo mu qin yichuan ziyuan jin chu jing he dui wai hezuo yanjiu liyong shenpi banfa, Central People's Government of the People's Republic of China website, Sept. 4, 2008, available at http://www.gov.cn/zwgk/2008-09/04/content_1087573.htm).
Under the Measures, domestic breeds' genetic resources brought into or taken out of China must meet certain conditions. If such resources will be introduced into the country, the objective of their importation must be clear and their use justified; their introduction must conform to plans for protection and use of domestic-breed hereditary resources; the source region must be epidemic-free; and, in conformity with relevant provisions of law, the introduction of such resources may not pose a threat to the safety of domestic-breed hereditary resources or to the ecological environment (art. 4). In order for domestic-breed genetic resources listed as being protected by the state to be permitted to be taken abroad, the use to which they will be put must be clear; the exportation must conform to plans for the resources' protection and utilization; such exportation may not pose a threat to domestic animal husbandry production and domestic-breed products for export; and the program for public sharing of the benefits of the program must be reasonable (art. 6).
The Measures ban “the export of genetic resources of newly-discovered, unidentified livestock and poultry breeds that are unique to the country,” as well as cooperation with foreign individuals or institutions in doing research on and utilizing such non-exportable resources (art. 10). ( China Tightens Control over Exporting Livestock, Poultry Genetic Resources, CHINA DAILY, Sept. 5, 2008, available at http://www.chinadaily.com.cn/china/2008-09/05/content_7000107.htm.) Government permission is necessary in order for individuals or agencies to transfer information concerning China's domestic-breed genetic resources to individuals or agencies overseas (art. 20; id.) The Measures also stipulate that those who violate the country's legal provisions on protection of state secrets, through the export of listed, state-protected domestic-breed genetic resources or their domestic use in cooperative research with foreign organizations or individuals, will be pursued for legal liability in accordance with China's Law on the Protection of State Secrets (art. 27).
In a related development, in order to prevent the loss of genetic resources in general, amendments to the Patent Law presented by the State Council to the National People's Congress Standing Committee at the opening of its fourth session on August 25, 2008, include new provisions to strengthen the protection of such resources. China apparently does not yet have a specific law on the protection of genetic resources; existing provisions on the subject are included in various laws, regulations, departmental norms, and policy documents, which lack a specialized system and rules for genetic resource protection and benefit sharing. The draft Patent Law amendments on the subject reportedly stipulate that for inventions and innovations that rely on genetic resources, applicants are to declare in the patent application documents the direct source and the original source of such resources; those who are not able to state the original source are to explain the reason why. It is also made clear in the draft amendments that those whose obtaining or use of genetic resources violates relevant laws or administrative regulations will not be awarded patent rights. (Fangzhi shengwu yichuan ziyuan liushi, Zhuanli Fa xiugai jianzhi jiyin qiequ [To Prevent the Loss of Biogenetic Resources, Patent Law Revisions Point Up Gene Stealing], XINHUA, Aug. 31, 2008, available at http://news.xinhuanet.com/legal/2008-08/31/content_9743861.htm; Tuo Yannan, Amendment of Patent Law Quickened, CHINA DAILY, Sept. 10, 2008, available at http://www.chinadaily.com.cn/bizchina/2008-09/08/content_7008088.htm.)