Patent Adaptation and the Construction of Special Rights: The Evolution of the EU's Animal Variety Protection System...

Innovation in animal breeding is shifting from traditional phenotypic selection towards a biotechnology-intensive paradigm centred on genetic engineering, necessitating robust intellectual property protection. Unlike for plants, no unified international protection system exists for animal varieties. The European Union has established a distinctive framework for the patent protection of animal varieties through the application of exclusion rules, judicial interpretations, and ethical review mechanisms. An examination of its historical evolution reveals three distinct phases: initiation, expansion, and retrenchment. The EU's approach reflects an ongoing effort to reconcile the imperatives of biotechnological innovation, the safeguarding of agricultural public resources, and ethical legitimacy. Nevertheless, interpretive divergences have persistently blurred the distinction between "technical processes" and "essentially biological processes," while the shift in ethical review from a utilitarian balancing test to a value-based prohibition model has further diminished the system's predictability. Drawing lessons from the EU experience and considering China's imperative to revitalise its seed industry, this paper proposes that China should not simply expand the scope of patent protection. Rather, inspired by the plant variety rights system, China should consider establishing a sui generis animal variety rights regime. Concurrently, differentiated authorization criteria should be formulated, with clearly defined ethical and ecological boundaries and explicit limitations on rights, so as to strike a sustainable balance among innovation incentives, the public interest, and ethical considerations.