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Regulations for the Protection of New Varieties of Plants (1997.10.1)

Chapter I  General Provisions

Article 1 These Regulations are enacted to protect the rights pertaining to new varieties of plants, encourage the cultivation and exploitation of new varieties of plants, and to promote the development of agriculture and forestry.

 

Article 2 In these Regulations, "new varieties of plants" refer to varieties of plants bred artificially or developed from natural plants discovered, which possess novelty, specialty, homogeneity and stability and are duly denominated.

 

Article 3 The administrative departments for agriculture and forestry under the State Council (referred to below as the Examination and Approval Authorities), within the scope of their respective responsibilities, are jointly responsible for receiving and examining applications for the rights pertaining to new varieties of plants, and grant the rights pertaining to new varieties of plants (referred to below as the variety right) that conform to the provisions of these Regulations.

 

Article 4 Any entity or individual who has accomplished the breeding of a new variety of plant, which bears on the interest of the State or the public interest and is of great value in application, shall be rewarded by the People's Government at or above the county level or by the relevant department.

 

Article 5 The production, marketing, and spreading of a new variety of plants which is granted the variety right (referred to below as the granted variety) shall be examined and approved in accordance with the provisions of the laws and regulations of the State on seeds.

 

Chapter II  The Content and Attribution of the Variety Right

Article 6 Any entity or individual who has accomplished the breeding of a new plant variety shall enjoy the exclusive right in respect of his or its granted variety. Without the permission of the owner of the variety right (referred to below as the variety right owner), no entity or individual shall, for commercial purposes, produce or sell reproductive or propagating material of that granted variety, nor repeatedly use, for commercial purposes, reproductive or propagating material of the granted variety to produce propagating material of another variety, except as otherwise provided for in these Regulations.

 

Article 7 For an item of service breeding, made by a person in execution of the tasks of the entity to which he belongs or made by him mainly by utilizing the material means of the entity, the right to apply for the variety right belongs to the entity. For any non-service breeding, the right to apply for the variety right belongs to the individual who has accomplished the breeding. After the application is approved, the variety right shall belong to the applicant.

In commissioned or cooperative breeding, the attribution of the variety right shall be stipulated on by the parties in the contract; where there is no contractual stipulation, the variety right shall belong to the entity or individual accomplishing on commission, or accomplishing jointly, the breeding.

 

Article 8 One variety right shall only be granted for one new plant variety. Where two or more applicants separately file applicants for the variety right in respect of the identical new plant variety, the variety right shall be granted to the applicant whose application is filed first; where the applications are filed simultaneously, the variety right should be granted to the applicant who accomplished the breeding of the new plant variety first.

 

Article 9 The right to apply for a variety right and the variety right may be assigned according to law.

Any assignment to a foreigner, by a Chinese entity or individual, of the right to apply for a variety right, or of the variety right, in respect of a new plant variety it or he has bred domestically, shall be approved by the examination and approval authorities.

Any assignment, by an entity under State ownership, of the right to apply for a variety right, or of a variety right, within the country shall be reported to the competent administrative department for approval in accordance with the relevant provisions of the State.

Where the right to apply for a variety right or the variety right is assigned, the parties shall conclude a written contract, which shall be registered with and announced by the examination and approval authorities.

 

Article 10 In any of the following events, an entity or individual exploiting a granted variety neither needs to have permission from nor pay the exploitation fee to the variety right owner for the exploitation, but the other rights enjoyed by the variety right owner in accordance with these Regulations shall not be infringed:

(1) Utilizing a granted variety in breeding and other scientific research activities;

(2) Reproducing of the propagating material of a granted variety by farmers for their own use.

 

Article 11 The examination and approval authorities may, in the interest of the State or the public interest, make a decision on granting a compulsory licence for the exploitation of a new plant variety, and register and announce it.

The entity or individual who has obtained the compulsory licence shall pay a reasonable exploitation fee to the variety right owner, the amount of which shall be negotiated by the two parties; in case the two parties cannot reach an agreement, the examination and approval authorities shall make a ruling on the amount.

Where the variety right owner is not satisfied with the decision on the compulsory licence for the exploitation or with the ruling on the exploitation fee, he or it may, within three months from the receipt of the notice, institute proceedings in the People's Court.

 

Article 12 When selling a granted variety, the registered name of the granted variety must be used regardless of whether the period of protection for the granted variety has expired or not.

 

Chapter III  Conditions for the Grant of a Variety Right

Article 13 A new plant variety in respect of which the variety right is to be applied for must belong to the genera or species of the plants listed in the State Catalogue of Protected Varieties of Plants. The Catalogue of Protected Varieties of Plants shall be finalised and published by the examination and approval authorities.

 

Article 14 A new plant variety for which the variety right is granted shall possess novelty. Novelty means that in respect of a new plant variety for which an application for the variety right is filed, the propagating material of the variety has not been sold before the date of filing, or, with the permission of the breeder, the propagating material of the variety has not been sold within China for more than one year; the propagating material of the variety of vine, forest tree, fruit tree and ornamental tree has not been sold outside of China for more than six years, and the propagating material of other varieties of plants has not been sold for more than four years.

 

Article 15 A new plant variety in respect of which the variety right is to be granted shall possess speciality. Speciality means that the new plant variety in respect of which an application for the variety right is filed shall be clearly distinguishable from varieties of plants known before the filing of the application.

 

Article 16 A new plant variety in respect of which the variety right is to be granted shall possess homogeneity. Homogeneity means that after propagation, the relevant special characteristics or properties of the new plant variety in respect of which an application for the variety right is filed shall, with the exception of foreseeable variation, remain consistent.

 

Article 17 A new plant variety in respect of which the variety right is to be granted shall possess stability. Stability means that the relevant special characteristics or properties of the new plant variety in respect of which an application for the variety right is filed shall, after repeated propagation or at the end of a particular cycle of reproduction, remain unchanged.

 

Article 18 A new plant variety in respect of which the variety right is to be granted shall be designated by an appropriate denomination, which shall be distinguishable from every denomination which designates a known variety of the same botanical genus or species or of a closely related genus or species. After registration, the denomination shall be the generic designation of the new plant variety.

The following denominations shall not be used in the designation of varieties:

(1) those consisting solely of figures;

(2) those contrary to social morality;

(3) those apt to cause misunderstanding as to the special characteristics and properties of new varieties of plants or the identities of breeders.

 

Chapter IV  Applications for the Variety Right and their Acceptance

Article 19 Where entities and individuals of China apply for the variety right, they may directly file applications with the examination and approval authorities or entrust the matter to agencies.

Where the new varieties of plants in respect of which entities and individuals of China apply for the variety right need to be kept secret because they involve national security or the vital interest of the State, they shall be handled according to the relevant provisions of the State.

 

Article 20 Where foreigners, foreign enterprises or other foreign organisations apply for the variety right in China, their applications shall be handled in accordance with the agreements concluded between those countries to which the applicants belong and the People's Republic of China, or in accordance with the international treaties to which those countries and China are party, or in accordance with these Regulations on the basis of the principle of reciprocity.

 

Article 21 Any party applying for the variety right shall submit to the examination and approval authorities a request, a description and photographs of the variety which meet the prescribed formal requirements.

The application documents shall be written in Chinese.

 

Article 22 The date on which the examination and approval authorities receive the application documents for the variety right shall be the date of filing; where the application documents are sent by post, the date of posting indicated by the postmark shall be the date of filing.

 

Article 23 Where, within twelve months from the date on which an applicant first filed in a foreign country an application for the variety right, he or it files in China an application for the variety right in respect of the new plant variety, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy the right of priority.

An applicant who claims the right of priority shall make a written statement when filing the application, and submit, within three months, a copy of the first filed application document for the variety right authenticated by the initial organ of acceptance; where the applicant fails to make a written statement or submit a copy of the application document, the claim for the right of priority shall be deemed not to have been made.

 

Article 24 The examination and approval authorities shall accept any application for the variety right which conforms to the provision of Article 21 of these Regulations, make clear the date of filing, assign an application number and, within one month from the date of receipt of the application, give the applicant notice to pay the application fee.

The examination and approval authorities shall not accept any application for the priority right which, after being amended, still fails to conform to the provision of Article 21 of these Regulations and shall notify the applicant of the non- acceptance.

 

Article 25 An applicant may, before the variety right is granted, amend or withdraw its or his application for the variety right.

 

Article 26 Any Chinese entity or individual filing an application for the variety right abroad in respect of a new plant variety cultivated within the country shall register the application with the examination and approval authorities.

 

Chapter V  The Examination and Approval of the Variety Right

Article 27 After the applicant pays the application fee, the examination and approval authorities shall carry out a preliminary examination of the following contents of the application for the variety right:

(1) whether it comes within the scope of the botanical genera and species listed in the catalogue of protected varieties of plants;

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

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

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

 

Article 28 The examination and approval authorities shall complete the preliminary examination within six months from the date of acceptance of an application for the variety right. In respect of an application for the variety right found to be in order after preliminary examination, the examination and approval authorities shall announce it and advise the applicant to pay the examination fee within three months.

In respect of an application for the variety right found not to be in order after preliminary examination, the examination and approval authorities shall invite the applicant to submit its or his observations or make amendments within three months; where no response is made on expiration of the time limit or where the application is still found not to be in order after amendment, the application shall be rejected.

 

Article 29 After an applicant pays the examination fee according to the provision, the examination and approval authorities shall carry out a substantive examination of its or his application for the variety right in respect of speciality, homogeneity and stability.

Where an applicant fails to pay the examination fee according to the provision, the application for the variety right shall be deemed to have been withdrawn.

 

Article 30 The examination and approval authorities carry out substantive examination mainly on the basis of the application document and other relevant written material. Where it is deemed necessary, the examination and approval authorities may entrust a designated testing organization to carry out tests or to study the results of planting or of other experiments.

Owing to the needs of examination, the applicant shall, in accordance with the requirement of the examination and approval authorities, provide the necessary data and the propagating material of the new plant variety.

 

Article 31 In respect of an application for the variety right found to conform to the provisions of these Regulations after substantive examination, the examination and approval authorities shall make a decision to grant the variety right, issue a certificate of variety right, and have it registered and announced.

Where an application for the variety right is found not to conform to the provisions of these Regulations, the examination and approval authorities shall reject it and notify the applicant of the rejection.

 

Article 32 The examination and approval authorities shall set up a New Plant Variety Reexamination Board.

An applicant not satisfied with the rejection of its or his application for the variety right by the examination and approval authorities may, within three months from the date of receipt of the notice, request the New Plant Variety Reexamination Board to make a reexamination. The New Plant Variety Reexamination Board shall, within six months from the date of receipt of the written request for reexamination, make a decision and notify the applicant.

An applicant not satisfied with the decision of the New Plant Variety Reexamination Board may, within fifteen days from the date of receipt of the notice, institute proceedings in the People's Court.

 

Article 33 After a variety right is granted, the owner of the variety right shall enjoy the right to claim compensation from entities and individuals producing or selling, without the authorisation of the applicant, the propagating material of the granted variety for commercial purposes during the period from the date on which the application for the variety is found to be in order after preliminary examination and announced to the date on which the variety right is granted.

 

Chapter VI  Period of Protection, Cessation and Invalidation

Article 34 The period of protection for vines, forest trees, fruit trees and ornamental trees shall be twenty years and that for other plants shall be fifteen years from the date of grant.

 

Article 35 An variety right owner shall begin to pay the annual fee from the same year the variety right is granted and shall, in accordance with the requirement of the examination and approval authorities, provide the propagating material of the granted variety for use in testing.

 

Article 36 In any of the following events, the variety right shall cease before the expiration of its period of protection:

(1) the variety right owner abandons the variety right by making a declaration in writing;

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

(3) the variety right owner fails to provide, in accordance with the requirement of the examination and approval authorities, the propagating material of the granted variety which is needed for testing;

(4) the granted variety is found, after testing, no longer true to the special characteristics and properties it had at the time the variety right was granted.

The cessation of the variety right shall be registered and announced by the examination and approval authorities.

 

Article 37 Beginning from the date on which the examination and approval authorities announce the grant of the variety right, the New Plant Variety Reexamination Board may, in accordance with its functions and powers or the written request of any entity or individual, declare the variety right invalid for failing to conform to the provisions of Articles 14, 15, 16, 17 of these Regulations and change the denomination of a new plant variety for failing to conform to the provision of Article 18 of these Regulations. The examination and approval authorities shall register and announce the decision on declaring the variety right invalid or changing the denomination and notify the party concerned.

Where the party concerned is not satisfied with the decision of the New Plant Variety Reexamination Board, it or he may, within three months from the date of receipt of the notice, institute proceedings in the People's Court.

 

Article 38 A variety right which has been declared invalid shall be deemed to be non-existent from the beginning.

The decision on declaring the variety right invalid has no retroactive effect on a judgement or ruling on the infringement of the new plant variety made by the People's Court and already executed before the invalidation, a decision on dealing with the infringement of the new plant variety made by the administrative department for agriculture or forestry of a People's Government at or above the provincial level and already executed, or a licence contract for the exploitation of the new plant variety or a contract for the assignment of the new plant variety already performed. However, where losses are caused to another person through had faith on the part of the variety right owner, reasonable compensation shall be made to the aggrieved party.

Pursuant to the provision of the foregoing paragraph, where the variety right owner or assignor has not returned to the licensed exploiter or the assignee the exploitation fee or the money paid for the assignment, clearly contravening the principle of equity, the variety right owner or assignor shall return to the licensed exploiter or assignee all or party of the exploitation fee or the money paid for the assignment.

 

Chapter VII  Provisions of Penalties

Article 39 Where anyone produces or sells, for commercial purposes, the propagating material of a granted variety without the authorization of the variety right owner, the variety right owner or an interested party may request the administrative departments for agriculture and forestry of a People's Government at or above the provincial level to deal with the matter in accordance with their respective functions and powers, or it or he may directly institute proceedings in the People's Court.

The administrative departments for agriculture and forestry of a People's Government at or above the provincial level may, according to their respective functions and powers and on the principle of voluntariness regarding the parties, may mediate in a dispute over the compensation for damages caused by infringement. Where an agreement is reached after mediation, the parties shall carry it out; where an agreement fails to be reached after mediation, the variety right owner or interested party may institute proceedings in the People's Court according to the civil procedure.

The administrative departments for agriculture and forestry of a People's Government at or above the provincial level, when investigating and dealing with cases of infringement on the variety right according to their respective functions and powers, may, in order to safeguard the public interest, order an infringer to desist from the infringing act and confiscate the illegal income, and may also impose a fine of not more than five times the illegal income.

 

Article 40 Where parties pass off plant varieties as granted, the administrative departments for agriculture and forestry of a People's Government at or above the county level shall, according to their respective functions and powers, order them to desist from the passing-off act, confiscate their illegal income and the propagating material of the varieties of plants and impose a fine of not less than twice and not more than five times the illegal income; where the circumstances are serious, with the passing off act constituting a crime, the actor shall be prosecuted for its or his criminal liability according to law.

 

Article 41 Where the administrative departments for agriculture and forestry of a People's Government at or above the provincial level investigate and deal with cases of infringement on the variety right according to their respective functions and powers, and where the administrative departments for agriculture and forestry of a People's Government at or above the county level investigate and deal with cases of passing off plant varieties as granted according to their respective functions and powers, they may, if need be, seal up or impound the propagating material of varieties of plants relevant to the cases and inspect, reproduce or seal up contracts, account books and related documents having to do with the cases.

 

Article 42 The administrative departments for agriculture and forestry of a People's Government at or above the county level shall, according to their respective functions and powers, to rectify the matter within a prescribed time limit, and may impose a fine of not more than RMB1,000 yuan.

 

Article 43 Where a dispute arises between parties over the attribution of the right to apply for the variety right with regard to a new plant variety and of the variety right, either of them may institute proceedings in the People's Court.

 

Article 44 Where staff members of the administrative departments of a People's Government at or above the county level and of relevant departments abuse their powers, neglect their duty, act wrongfully out of personal considerations, or demand and accept bribes, constituting crimes, they shall be prosecuted for their criminal liability according to law; where the acts have not yet constituted crimes, they shall be disciplined administratively.

 

Chapter VIII  Supplementary Provisions

Article 45 The examination and approval authorities may make accommodating provisions for the novelty requirements of botanical genera or species among the first batch to be included in the Catalogue of Protected Varieties of Plants before the coming into effect of these Regulations and those newly included in the Catalogue of Protected Varieties of Plants after the coming into effect of these Regulations.

 

Article 46 These Regulations shall come into effect as of 1 October 1997.

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