Regulations of PRC on Protection of New Varieties of Plants

(Promulgated by Decree No. 213 of the State Council of the People's Republic of China on March 20,1997, and effective as of October 1,1997)

Chapter I General Provisions

Article 1 These Regulations are Formulated for the purposes of protecting rights in new varieties of plants, encouraging the breeding and use of varieties of plants, and promoting the development of agriculture and forestry.

Article 2 New varieties of plants referred to in these Regulations mean artificially cultivated plant varieties, or ones developed from discovered wild plants, which possess novelty, distinctness, consistency and stability, and which are duly named.

Article 3 The administrative departments of agriculture and forestry of the State Council (both hereinafter referred to as the examining and approving organs) are jointly responsible, according to the division of their functions and duties, for the receipt and examination of applications for rights in new varieties of plants, and for granting rights in new varieties of plants (hereinafter referred to as variety rights) for those new varieties of plants that conform to the provisions of these Regulations.

Article 4 The people's governments at or above the county level or other relevant departments shall give awards to units or individuals that have accomplished the breeding of new plant varieties that have a bearing on State or the public interests, and are of great utility value.

Article 5 The production, market and popularization of a new plant variety for which a variety right has been granted(hereinafter referred to as the protected variety) are subject to review and approval in accordance with the provisions of relevant State laws and regulations on seeds.

Chapter II Content and Ownership of Variety Rights

Article 6 A unit or an individual that has bred a protected variety enjoys exclusive rights in it. No unit or individual, without permission from the owner of the variety rights (hereinafter referred to as the variety rights owner), shall produce or market for commercial purposes the propagation material of the protected variety, or repeatedly use for commercial purposes the propagation material of the protected variety in the production of the propagation material of another variety, unless as otherwise provided in these Regulations.

Article 7 For employment related breeding that is accomplished in execution of tasks of a unit to which he belongs, or by primarily using material resources of a unit, the application right for a new plant variety belongs to the unit; for non-employment related breeding, the application right of a new variety of plant belongs to the individual who has accomplished the breeding. After the application is approved, the variety rights shall belong to the applicant.

For a commissioned breeding or jointly-conducted breeding, the ownership of variety rights shall be agreed upon by the parties in a contract; in the absence of a contractual agreement thereon, the variety shall rights shall belong to the units or individuals commissioned to accomplish or jointly accomplishing the breeding.

Article 8 One new plant variety shall be granted only one set of variety rights. If two or more applicants apply separately for variety rights on the same new plant variety, the variety rights shall be granted to the person who applied first; if applying simultaneously, the variety rights shall be granted to the person who first bred the new plant variety.

Article 9 The application right for a new plant variety and the variety rights may be assigned according to law.

If a Chinese unit or individual is to assign to a foreigner the application right or the variety rights with respect to a new plant variety bred by it or him in China, it shall be approved by the examining and approving organs.

If a State-owned unit is to assign the application right or the variety rights at home, it shall, in accordance with the relevant provisions of the State, be submitted to the relevant competent administrative departments for approval.

If the application right or variety right is assigned, the parties shall conclude a written contract, and register it with the examining and approving organs which shall make a public announcement.

Article 10 Use of a protested variety under the following circumstances is allowed with no need for permission from or remuneration to the variety rights owner. However, the other rights enjoyed by the variety rights owner under these Regulations shall by no means be prejudiced:

(1) use of the protected variety for breeding and other scientific research activities;

(2) self-use or self-propagation by farmers of propagation materials of the protected variety.

Article 11 Where the national interest or public interest so requires, the examining and approving organs may make a decision on a compulsory license to exploit new plant varieties, which shall be registered and publicly announced.

Any unit or individual that is granted a compulsory license for exploitation shall pay the variety rights owner a reasonable exploitation fee and the amount thereof shall be decided through consultation of both parties. Where the parties fail to reach an agreement, the examining and approving organs shall make a ruling.

A variety rights owner not satisfied with the decision on a compulsory license nor with the ruling regarding the exploitation fee, may, within three months from the date of receiving notification, file a suit with a people’s court.

Article 12 Whether or not the period of the protection of a protected variety has expired, its registered denomination must be used when marketing the said protected variety.

Chapter III Conditions for Granting Variety Rights

Article 13 In applying for a variety right a new plant variety shall belong to a botanical genus and species in the national catalogue of protected plant varieties. The catalogue of protected plant varieties shall be determined and announced by the examining and approving organs.

Article 14 A plant new variety to be granted variety rights shall possess the characteristic of novelty. Novelty means that the propagation material of the new plant variety for which variety protection is applied have not been marketed prior to the application date, or the propagation material of the variety have not been marketed with the agreement of the breeder within the territory of China for longer than one year; the propagation material of vines, forest trees, fruit trees and ornamental trees shall not have been marketed outside the territory of China for six years, or the propagation material of other plant varieties for longer than four years.

Article 15 A new plant variety to be granted variety rights shall possess the characteristic of distinctness. Distinctness means that the new plant variety for which variety protection is applied shall be clearly distinguishable from any other plant variety the existence of which is a matter of common knowledge at the time the application is filed.

Article 16 A new plant variety to be granted variety rights shall possess the characteristic of consistency. Consistency means that the new plant variety for which variety protection is applied shall be consistent, except for variation that may be expected, in its relevant characteristics or identity after propagation.

Article 17 A new plant variety to be granted variety rights shall possess the characteristic of stability. Stability means that the new plant variety for which variety protection is applied shall remain true to its relevant characteristics or identity after repeated propagation or at the end of a particular cycle of propagation.

Article 18 A new plant variety granted variety rights shall possess a proper denomination, which shall be distinguishable from that of any other already known variety of the same or closely related botanical genus or species. The denomination, after being registered, shall be the generic designation of the new variety of plant in question. The following denominations shall not be used for designating a variety:

(1) consisting solely of figures;

(2) violating social morals;

(3) liable to mislead the characteristics or identity of the new plant variety, or the identity of the breeder.

Chapter IV Application for Variety Rights and Receipt Thereof

Article 19 A Chinese unit or individual that intends to apply for variety rights may file an application with the examining and approving organs directly or by authorizing an agency. Where the new plant variety for which a variety right is applied by a Chinese unit or its individual involves State security or major interests and therefore needs to be kept confidential, it shall be handled in accordance with the relevant provisions of the State.

Article 20 If a foreigner, foreign enterprise or other foreign organization files an application for a variety rights in China, it shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and the People's Republic of China, or any international treaty to which both countries have acceded, or handled according to these Regulations on the basis of the principle of reciprocity.

Article 21 When applying for a variety right, a written request and a specification conforming to the prescribed format and requirements as well as a photograph of the variety shall be submitted to the examining and approving organs.

The application documents shall be written in Chinese.

Article 22 The date on which the examining and approving organs receive the variety rights application documents shall be the filing date of the application. Where the application documents are sent by mail, the postmark date shall be the filing date of the application.

Article 23 An applicant who, within 12 months from the date on which an application for a variety right was first filed in a foreign country, files an application for a variety right in China for the same new plant variety, may, in accordance with any agreement concluded between the said foreign country and the People's Republic of China or any international treaty to which both countries have acceded, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.

Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the variety right application documents that were first filed, and confirmed by the original receiving authority; if the applicant fails to make the written declaration or fails to submit a copy of the variety right application documents in accordance the provisions of these Regulations, the claim to the right of priority shall be deemed not to have been made.

Article 24 Where an application for a variety right conforms to the provisions of Article 21 of these Regulations, the examining and approving organs shall accept it, establish the date of filing, assign a filing number and notify the applicant within one month of the date of receiving the application to pay the application fee.

Where an application for a variety right does not, or after being revised still does not, conform to the provisions of Article 21 of these Regulations, the examining and approving organs shall not accept it and shall notify the applicant accordingly.

Article 25 An applicant may amend or withdraw the application for a variety right at any time before the variety right is granted.

Article 26 Where a Chinese unit or individual intends to file an application in a foreign country for a variety right on a new plant variety bred in China, registration shall be made

with the examining and approving organs.

Chapter V Examination and Approval of Variety Rights

Article 27 After an applicant has paid an application fee, the examining and approving organs shall carry out a preliminary examination of the following contents of an application for a variety right:

(1) whether the variety falls into the category of botanical genus or species included in the catalogue of protected plant varieties;

(2) whether it conforms to the provisions of Article 20 of these Regulations;

(3) whether it conforms to the provisions on novelty;

(4) whether the denomination of the new variety of plant is appropriate.

Article 28 The examining and approving organs shall complete the preliminary examination within six months after the date of accepting an application for a variety right. Where the application for a variety right is found up to requirements through the preliminary examination, the examining and approving organs shall have it publicly announced and notify the applicant to pay an examination fee within three months.

Where the application for a variety right is found not up to requirements in the preliminary examination, the examining and approving organs shall notify the applicant to state views or make revisions within three months; where no response is made within the time limit or, after revisions are made there still is non-conformity with requirements, the application is rejected.

Article 29 After an applicant has paid the examination fee as provided, the examining and approving organs shall carry out substantive examination on the characteristics of distinctness, consistency and stability of the variety for which a variety right is applied.

Where the applicant has not paid the examination fee as provided, the application for a variety right shall be deemed to be withdrawn.

Article 30 the examining and approving organs shall carry out substantive examination chiefly on the basis of application documents and other relevant written materials. The examining and approving organs may, if they deem it necessary, authorize a designated testing institution to test or inspect the results of planting or other experiments that have already been carried out.

For the purposes of examination, the applicant shall, at the request of the examining and approving organs, furnish necessary information and propagation material of the new plant variety.

Article 31 Where the application for a variety right is found in substantive examination to be in conformity with the provisions of these Regulations, the examining and approving organs shall make a decision granting variety rights, issue a new variety rights certificate, and have it registered and published.

Where the application variety rights is found not to be in conformity with the provisions of these Regulations, the examining and approving organs shall reject the application and notify the applicant.

Article 32 The examining and approving organs shall set up a Reexamination Board for New Varieties of Plants.

An applicant, if not satisfied with the decision of the examining and approving organs rejecting the application, may request the Reexamination Board for New Varieties of Plants to make a reexamination within three months from the date of receiving the notice. The Reexamination Board for New Varieties of Plants shall, within six months from the date of receiving the request for reexamination, make a decision and notify the applicant.

An applicant, if not satisfied with the reexamination decision of the Reexamination Board for New Varieties of Plants, may file a suit in the people's court within 15 days from the date of receiving the notice.

Article 33 After the variety rights have been granted, the variety rights owner is entitled to claim compensation for the period beginning on the date on which an acceptable application was published on preliminary examination and ending on the date of grant of variety rights, from units which, and person who, have produced or sold the propagating material of the protected variety in question for commercial purposes without consent.

Chapter VI Term, Termination and Invalidation

Article 34 The terns of protection of variety rights shall be computed 20 years for vines, forest trees, fruit trees and ornamental trees and 15 years for other plants, from the date of the grant.

Article 35 The variety rights owner shall pay an annual fee beginning with the year in which the variety rights are granted, and shall furnish propagation material of the protected variety for the purpose of testing as required by the examining and approving organs.

Article 36 Variety right shall be terminated prior to the expiration of the period of protection in any of the following cases:

(1) where the variety right owner by a written declaration renounces the variety right;\

(2) where the variety right owner fails to pay the annual fee as prescribed;

(3) where the variety right owner fails to furnish, as required by the examining and approving organs, propagation material of the protected variety needed for testing;

(4) where, upon testing, the protected variety is found to be no longer in conformity with the characteristics and identity that existed when the variety rights were granted.

The termination of a variety right shall be registered and publicly announced by the examining and approving organs.

Article 37 From the date of the announcement of the grant of a variety right by examining and approving organs, the Reexamination Board for New Varieties of Plants may, according to its functions and duties or on the basis of a written request made by a unit or individual, declare a variety right invalid where it is not in conformity with the provisions of Articles 14,15,16 and 17 of these Regulations, or change the denomination of any variety that is not in conformity with the provisions of Article 18 of these Regulations. The decision to revoke variety rights and the decision to change the denomination shall be registered and publicly announced by the examining and approving organs, and the parties shall be notified.

If not satisfied with the decision of the Re-examination Board for New Varieties of Plants, a suit may, be filed in a people's court within three months from the date of receiving notice.

Article 38 A variety right that has been declared invalid shall be deemed to be void from the beginning.

A decision declaring a variety right invalid shall have no retroactive effect on any judgment or order on infringement of a new variety of plant which has already been pronounced and enforced by the people's court, on any decision concerning the handling of infringement of a new variety of plant which has already been made and enforced by the administrative departments of agriculture and forestry of the People's Governments at or above provincial level, and on any contract of license for exploitation of a new variety of plant and any contract of assignment of the right of a new variety of plant which has been performed, prior to the declaration; however, damage caused to any other person through bad faith on the part of the variety right owner shall be reasonably compensated.

If, according to the provisions of the preceding paragraph, the fee for the exploitation of a new variety of plant or the price for the assignment of a variety right is not repaid by the variety right owner or the assignor of the variety right to the licensee or the assignee, which is obviously contrary to the principle of farmers, the variety rights owner or the assignor of the variety right shall repay in whole or part fee for the exploitation of the variety or the price for assignment of the variety right to the licensee or the assignee.

Chapter VII Penalty Provisions

Article 39 Where the propagation material of a protected variety is produced or marketed for commercial purposes without the consent of the variety right owner, the variety right owner or other interested party may request the administrative departments of agriculture and forestry of the people's governments at or above the provincial level to handle it in accordance with their respective functions and powers, or directly file suit in a people's court.

The administrative departments of agriculture and forestry of the people's governments at or above the provincial level may, according to their respective functions and powers and on the basis of the principle of free will of the parties, mediate the compensation for damages caused by the infringement. Where an accord is reached through mediation, it shall be executed by the parties; where no accord is reached through mediation, the variety right owner or other interested party may file suit in a people's court according to the civil procedure.

In handling cases of infringement of variety right in accordance with their respective functions and powers, the administrative departments of agriculture and forestry of the people's governments at or above the provincial level may, for the purposes of safeguarding the public interests society, order the infringer to stop the infringing act, confiscate the illegal gains and may concurrently impose a fine of not more than five times the illegal gains.

Article 40 Where a new plant variety is counterfeited, the administrative departments of agriculture and forestry of the people's governments at or above the county level shall enjoin the counterfeiting act, confiscate the illegal gains and the propagation material of the plant variety, and concurrently impose a fine of not less than one but not more than five times the illegal gains, where the circumstances are so serious as to constitute a crime, criminal liability shall be investigated according to law.

Article 41 Both the administrative departments of agriculture and forestry of the people's governments at or above the provincial level investigation and handling cases of infringement of variety right in accordance with their respective functions and powers, and the administrative departments of agriculture and forestry of the people's governments at or above the county level investigating and handling cases concerning counterfeited rights-granted variety in accordance with their respective functions and powers, may, as necessary, seal or seize propagation material of the plant variety related to the case, and have access to, make copies of and seal up contracts, account books and other relevant documents relating to the case.

Article 42 Where a protected variety is sold without using its registered denomination, the administrative departments of agriculture and forestry of the people's governments at or above the county level shall, in accordance with their respective functions and powers, order corrections within a specified time limit, and may impose a fine not more than 1,000 yuan.

Article 43 Where disputes arise as to the ownership of the application right and variety right of a new plant variety, the parties may file suit in a people's court.

Article 44 Any staff member of the administrative departments of agriculture and forestry of the people's governments at or above the county level and of other departments who abuses his power, neglects his duty, commits illegality for personal interest or by fraudulent means, or seeks or accepts bribes shall be investigated for criminal liability according to law if a crime is constituted; administrative sanctions shall be given according to law if a crime is not constituted.

Chapter VIII Supplementary Provisions

Article 45 The examining and approving organs may formulate responsive provisions on the requirements of novelty for genus or species first included in the catalogue of protected plant varieties before the entry into force of these Regulations and for genus or species newly included in the catalogue of protected plant varieties after the entry into force of the Regulations.

Article 46 These Regulations shall take effect as of October 1, 1997.