China's Plant Variety Rights Legislation
The coverage provided by China's Plant Variety Rights Law and associated regulations.
The international Union for the Protection of New Varieties of Plant (UPOV) is an intergovernmental organization based in Geneva, Switzerland. It was established in 1961 by the International Convention for the Protection of New Varieties of Plants (the “UPOV Convention”).
The UPOV Convention provides the basis for members to encourage plant breeding by granting breeders of new plant varieties an intellectual property right – the breeder’s right. Article 5 of the UPOV Convention (1978 version) provides that core content of the rights of the breeders is the exclusive rights of production and sell for commercial purposes the propagating materials of their protected varieties.
On March 20, 1997, China issued “the Regulations on the Protection of New Varieties of Plants” (Regulations) based on the 1978 Act of the UPOV Convention. Then it officially joined the UPOV on April 23, 1999. The Regulations was amended on January 31, 2013.
The Ministry of Agriculture and the State Forestry Administration are the two authorities responsible for the receipt and examination of applications for rights in new varieties of plants, and for the grant of rights in new varieties of plants in respect of those new varieties of plants that conform to the provisions of these Regulations. Correspondingly, China promulgated two Rules for the Regulations (Rules); one is agriculture part, and the other is forestry part.
In accordance with Article 6 of the Regulations, a holder of the variety rights (variety rights holder) has an exclusive right in its protected variety. “Except otherwise provided in these Regulations, no other entity or person shall, without the consent of the variety rights holder, produce or sell for commercial purposes the propagating material of the said protected variety, or use for commercial purposes the propagating material of the protected variety in a repeated manner in the production of the propagating material of another variety.”
“The propagating material” refers to the whole plants (including nursery stock), seeds (including roots, stems, leaves, flowers, and fruits) and other parts of a plant (including tissue and cell) according to Article 4 of the Rules (forestry part). Meanwhile, Article 5 of the Rules (agriculture part) defines it as “plant material or other parts of plants which can breed plants, including seeds, fruits, roots, stems, seedlings, buds and leaves”. Therefore, any part of a plant including fruits, seeds, roots, stems, buds, leaves, flowers, tissue and cell can be regarded as the propagating material which can be protected by the Regulations if it can be used for breeding plants.
As of March 31, 2014, the Ministry of Agriculture has published 9 batches of Plant Protection List, involving 93 plant species, has accepted 12111 applications, and has granted 4488 plant variety rights; the State Forestry Administration has published 5 batches of Plant Protection List, involving 198 plant species, has accepted 1246 applications, and has granted 658 plant variety rights.
The People’s court is responsible for judicial protection of new plant varieties. In order to strengthen the judicial protection, the China Supreme People’s Court stipulated the Provisions of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Cases Involving the Disputes over Infringement upon the Rights of New Plant Varieties (Provisions) on January 12, 2007.
In accordance with the Article 2 of the Provisions, the behavior of producing or selling for commercial purposes the propagating material of the protected variety or use for commercial purposes the propagating material of the protected variety in a repeated manner in the production of the propagating material of another variety without the consent of the variety rights holder is an infringement of the rights of new plant varieties; the accused infringing material which features and characteristics are identical with the authorized varieties or which differences are due to non-genetic variation is the propagating material produced or sold for commercial purposes of the protected variety; and repeatedly using of the propagating material of the protected varieties as parent material with the other parent material for further breeding belongs to the “use for commercial purposes the propagating material of the protected variety in a repeated manner in the production of the propagating material of another variety”.
"Genetic variation factor" refers to a hybrid artificial, natural hybridization, mutation, mutation, etc. to make the transgenic plant genetic change, resulting in variation of features or characteristics of the plant, this variation is heritable. "Non-genetic variability factor" is the result of soil, climate, fertilizer, management or other environmental factors, leading to the occurrence of features or characteristics of plants difference, this difference cannot be inherited. "Characteristic" refers to the morphological characteristics of plants, flower color, fruit and other status quo; "property" refers to the biological characteristics of plants, such as disease resistance, drought resistance. The "non-genetic variation" in the Article 2 of the Provisions refers to the allegedly infringing material is same to the protected species, but their features and characteristics are different due to the involvement such as foreign pollen and other non-genetic variation factors during the growth process.
In accordance with the Regulations, where the propagating material of the protected variety is produced or sold for commercial purposes without the consent of the variety rights holder, the variety rights holder or the party having an interest therein may request the administrative departments of agriculture and forestry of the People’s Governments at provincial level or above to handle it in accordance with their respective competence, or directly file a suit with the People’s Court. The penalties include ordering the party concerned to stop the counterfeiting act, confiscating the unlawful earnings and the propagating material of the plant variety, and fine. The fine from the administrative departments is at least one but not exceeding five times more than the unlawful earnings. Where the goods hasn’t had any value or the value is less than ￥50,000, the fine shall be ￥250,000 or less according to the circumstances. Meanwhile, the fine from the People’s Court is ￥500,000 or less.
China’s new plant variety protection system provides for a "breeder's exemption" and "farmers exemption" system. Article 8 of the Provisions said that a farmer who is engaged in agricultural or forestry planting is not liable for the production of the propagating materials of a protected plant variety on behalf of others if he doesn’t know they are infringing propagating materials and can tell who is the Entrusting Party.
Generally, the breeder’s rights in China include the rights of production, marketing, use, license and assignment. These rights are limited to the fair use of research activities or farmer’s reproduction for their own use, and the compulsory licensing for the public interests. The protection tends to be governed by the administrative authorities.
The protection offered by China PVR law is different with other members of UPOV. For example, the protection system of USA is relatively mature; it takes a triple protection mode involved in the Plant Patent Act, the Plant Variety Protection Act and the Utility Patent Law. The Regulations is issued by the State Council which protection efforts is inferior to the law issued by the National People’s Congress or its standing Committee. The legal protection system of new plant variety in China is imperfect. It shall improve more both on legislation.
ABOUT THE AUTHOR: Xia Yu
Xia Yu is an Associate in MMLC's Beijing Office.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.