In the invalidation examination on new plant variety rights initiated upon application, the invalidation requester must file an invalidation request with evidence, and the Plant Variety Review Board generally only reviews the invalidation grounds clearly put forward by the invalidation requester.
The distinctness of a new plant variety requires that the propagation materials of the variety have characteristics obviously different from the varieties that existed before the application date. In invalidation proceedings, the invalidation requester must identify the known varieties for comparison with the granted variety and provide evidence such as molecular markers or field tests to demonstrate that there is no distinct difference between them.
Hubei A Company is the variety rights owner of a new maize plant variety named "FL218" (hereinafter referred to as the variety in question). On December 14, 2020, Guizhou B Company requested the Plant Variety Reexamination Board under the Ministry of Agriculture and Rural Affairs to declare the "FL218" variety right invalid. The main grounds are that the "FL218" variety had been massively produced and sold before the application date and that it did not have novelty. On December 3, 2021, the Plant Variety Reexamination Board made an invalidation decision on the variety right (hereinafter referred to as the disputed decision), holding that the variety in question had not lost its novelty, and that the existing evidence could not prove that the variety in question had lost its distinctness, so the validity of the variety right in question was maintained. Guizhou B Company was dissatisfied and filed a lawsuit, requesting to revoke the disputed decision and order the Plant Variety Reexamination Board to make a decision anew.
The first-instance court issued an administrative ruling dismissing the lawsuit filed by Guizhou B Company. The company appealed the ruling. On December 24, 2024, the Supreme People's Court issued the final judgment dismissing the appeal and upholding the original judgment.
The court's effective judgment held that there were three points of dispute in this case: first, whether the procedure of the disputed decision was legal; second, whether there was any error in determining the novelty of "FL218" in the disputed decision and the first-instance ruling; and third, whether there was any error in determining the distinctness of "FL218" in the disputed decision and the first-instance ruling.
A. Examination on the Invalidation Grounds in This Case
After a variety right is granted, any entity or individual may file an invalidation request against the granted variety right, and the Plant Variety Review Board is granted to directly initiate invalidation proceedings on its own authority. In invalidation proceedings initiated upon request, the Plant Variety Review Board, in principle, is solely responsible for examining whether the granted variety meets the authorization requirements based on the evidence and reasons presented by the invalidation requester. It is not obligated to undertake a comprehensive examination on whether the granted variety meets all authorization requirements of the variety right. For invalidation examinations initiated upon application, the applicant should submit a written invalidation request and state relevant evidence and reasons. The Plant Variety Review Board will only examine the grounds relevant to novelty, distinctness, uniformity, and stability of the variety right in the invalidation request. If the invalidation request meets the requirements, the Board will forward the invalidation request and related evidence to the variety right holder for their comments. If the invalidation requester does not raise the grounds for invalidation in the invalidation request, but instead raises them in other evidentiary materials or explanations of the circumstances, the Plant Variety Review Board should notify the applicant to make rectifications to the invalidation request or to clarify it in writing within a specified time limit, and hear the observations of the variety right holder on the invalidation grounds; if the invalidation requester fails to make rectifications or clarification within the time limit, it shall be deemed that the grounds have not been raised. In this case, in the invalidation request submitted by Guizhou B Company, the grounds for invalidation of "FL218" were that it lacked novelty, and it did not explicitly claim that "FL218" lacked distinctness. In the examination procedures involved in the case initiated upon application, the Plant Variety Review Board conducted an examination on whether "FL218" had distinctness without requiring the Guizhou B Company to rectify or clarify the grounds for invalidation, which constituted a procedural flaw. Considering that the Guizhou B Company claimed that "FL218" did not have distinctness during the first and the second instance, and Hubei Company A also agreed to examine whether "FL218" had distinctness during the invalidation proceedings and administrative litigation, the disputed decision was not flawed in protecting the right of the variety right holder to reply and listening to the opinions of the variety right holder, and thus, did not constitute a procedural violation.
B. Judgment on Novelty
First, the witness testimony provided by the Guizhou B Company lacked probative value. Second, Guizhou B Company failed to fulfill its initial burden of proof regarding the facts at issue. Finally, Guizhou B Company's claim that the relevant hybrid had been approved and marketed for many years prior to the application date of "FL218," which causes "FL218" to lose its novelty, is also untenable. The challenged decision and the first-instance ruling's judgment on the novelty of "FL218" are correct.
C. Judgment on Distinctness
The distinctness of a new plant variety emphasizes the significant differences in traits between the propagating material of the variety and known varieties prior to the application date. In invalidation proceedings, the invalidation requester must identify the known varieties in relation to the granted variety and provide evidence - such as DNA identification or field testing - to demonstrate that there is no significant difference between the granted variety and the known varieties . The burden of proof of such facts rests with the invalidation requester. First, in determining the distinctness of a new plant variety, it is necessary to first identify the prior known variety and establish a fixed comparison target. Guizhou B Company claimed that "FL218" was not significantly different from its three parent varieties. However, it did not provide evidence proving that the three parent varieties were varieties that had already been announced as having passed the preliminary examination of their variety rights application, had passed variety examination, or had been commercially applied before the application date of "FL218." In other words, Guizhou B Company failed to prove that the three parent varieties were the known varieties of "FL218." Second, the evidence submitted by Guizhou B Company was not supported by other evidence, and therefore had low probative value. Based on the information available on the granted varieties "Eyu 16," "Heyu 808," and "Xinzhongyu 801," and their parental varieties, "FL218" differs from its three parental varieties in names and codes, and is bred by a different breeder. Guizhou B Company lacked preliminary evidence proving they are the same variety or lacks significant distinction. Therefore, Guizhou B Company failed to meet its burden of proof in this case and cannot prove that "FL218" lacks distinctness. The disputed decision and the first-instance ruling's determination that "FL218" possesses distinctness are correct and are upheld.
(2024) Zui Gao Fa Zhi Xing Zhong No. 627
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