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Regulations of the People's
Republic of China on the 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)
TABLE OF CONTENTS
Chapter I General Provisions
Chapter II Content and Ownership of Variety Rights
Chapter III Conditions for the Grant of Variety Rights
Chapter IV Applications for Variety Rights and Receipt
Thereof
Chapter V Examination and Approval of Variety Rights
Chapter VI Term, Termination and Invalidity
ChapterVII Penalty Provisions
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1 These Regulations are formulated
to protect the rights in new varieties of plants, to encourage the
breeding and use of new varieties of plants, and to promote the
development of agriculture and forestry.
Article 2 The new plant variety referred to in these Regulations
means a cultivated plant variety, or a developed one based on a
discovered wild plant, which is new, distinct, uniform and stable,
and whose denomination is adequately designated.
Article 3 The administrative departments of agriculture and
forestry under the State Council (both referred to hereafter as
the "examining and approving authorities") are jointly
responsible, according to the division of their job responsibilities,
for the receipt and examination of applications for rights in new
varieties of plants (hereinafter referred to as "variety rights")
in respect of those new varieties of plants that conform to the
provisions of these Regulations.
Article 4 The people's governments at county level or above
or other relevant departments shall reward the entity which or the
person who has accomplished the breeding of a new plant variety
that has a bearing on the national or the public interest, and is
of great value for use.
Article 5 The production, sale and dissemination of a new
plant variety in respect of which variety rights have been granted
(hereinafter referred to as the "protected variety") is
subject to review and approval under the provisions of relevant
national laws and regulations on seeds.
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Chapter II Content and Ownership of Variety Rights
Article 6
The entity which or the person who has accomplished the breeding
has an exclusive right in their protected variety. Except otherwise
provided in these Regulations, no other entity or person shall,
without the consent of the holder of the variety rights (hereinafter
referred to as 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.
Article 7 In the case of job-related
breeding accomplished by any person in undertaking tasks for the
entity to which he belongs, or primarily by using the facilities
of that entity, the right to file an application for variety rights
in respect of the new plant variety shall belong to the entity in
question; for breeding that is not job-related, the right to file
such an application shall belong to the person accomplishing the
breeding. Upon approval of the application, the variety rights shall
belong to the applicant.
For commissioned breeding or jointly-conducted breeding, the ownership
of the variety rights shall be agreed upon by the parties in a contract;
failing such an event, the variety rights shall belong to the entity
or person commissioned to conduct or jointly conducting 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 in respect of the same new plant
variety, the variety rights shall be granted to the person who applies
first; in the case of a simultaneous application, the variety rights
shall be granted to the person who has first accomplished the breeding
of the new plant variety concerned.
Article 9 The right to file an application
for variety rights in respect of a new plant variety and the variety
rights may be assigned in accordance with the law.
If a Chinese entity or person wishes to assign to a foreigner the
fight to file an application or the variety rights in respect of
a new plant variety bred in China, such assignment shall be approved
by the examining and approving authorities.
In the case of an assignment within China of the right to file an
application or of the variety rights by a State-owned entity, it
shall be submitted in accordance with the relevant national regulations
for approval by the competent administrative departments concerned.
The parties involved in the assignment of the right to file an application
or of the variety rights shall conclude a written contract, and
shall register the assignment before the examining and approving
authorities, which in turn shall publish the assignment.
Article 10 Without prejudice to other
rights of the variety rights holder under these Regulations, the
exploitation of the protected variety shall not require authorization
from, or payment of royalties to, the variety rights holder for
the following purpose:
(i) exploitation of the protected variety for breeding and other
scientific research activities;
(ii) the use for propagating purposes by farmers, on their own holdings,
of the propagating material of the protected variety harvested on
their own holdings.
Article 11 The examining and approving
authorities may, in the national or the public interest, decide
to grant a compulsory license to exploit new plant varieties, which
should be subsequently registered and published.
The entity which or the person who is granted a compulsory license
for exploitation shall pay the variety rights holder a reasonable
exploitation fee, the amount of which shall be fixed by consultation
between the two parties. Where the parties fail to reach an agreement,
the examining and approving authorities shall adjudicate.
Where the variety right owner is not satisfied with the decision
to grant a compulsory license or is not satisfied with the adjudication
regarding the fee payable for exploitation, he or it may, within
three months from the date of receiving the notification, file a
suit with the People's Court.
Article 12 Regardless of whether or
not the term of the protection of the protected variety has expired,
the denomination of the protected variety as used in its registration
must be used for sales thereof.
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Chapter III Conditions for the Grant of Variety
Rights
Article 13 The new plant variety in respect
of which variety rights have been applied for shall be part of the
botanical genera and species included in the national list of protected
plant varieties. This list of protected plant varieties shall be
determined and published by the examining and approving authorities.
Article 14 Any plant variety in respect of which variety
rights are granted shall have the characteristic of novelty. Novelty
means that the propagating material of the new plant variety in
respect of which variety rights are applied for has not been sold
prior to the filing date of the application, or has not been for
sale, with the consent of the breeder, for more than one year within
the territory of China; the propagating material of vines, forest
trees, fruit trees and ornamental plants must not have been for
sale for more than six years, or the propagating material of other
plant varieties for more than four years, in a foreign territory.
Article 15 Any plant variety in respect of which variety
rights are granted shall have the characteristic of distinctness.
Distinctness means that the plant variety in respect of which variety
rights are applied for must noticeably distinguish it from any other
plant variety known prior to the filing of the application.
Article 16 Any plant variety in respect of which variety
rights are granted shall have the characteristic of uniformity.
Uniformity means that the plant variety in respect of which variety
rights are applied for is uniform, subject to the variation that
may be expected, in its relevant features or characteristics after
propagation.
Article 17 Any plant variety in respect of which variety
rights are granted shall have the characteristic of stability. Stability
means that the plant variety in respect of which variety rights
are applied for keeps its relevant features or characteristics unchanged
after repeated propagation or at the end of particular cycle propagation.
Article 18 Any plant variety in respect of which variety
rights are granted shall have an adequate denomination, which shall
be distinguishable from that for any other known plant variety of
the same or similar botanical genera or species. The denomination,
after its registration, shall be the generic designation of the
new plant variety in question.
The following shall be avoided in the selection of a denomination
for a new variety:
(a) those consisting for only numbers;
(b) those violating social morals;
(c) those that are liable to mislead as to the features or characteristics
of the new plant variety, or the identity or the breeder.
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Chapter IV Applications for Variety Rights and Receipt
Thereof
Article 19 Where
Chinese entities and persons apply for variety rights, they may
file an application with the examining and approving authorities
directly or through a representative agency commissioned for the
purpose.
Where the new plant variety in respect of which Chinese entities
and persons apply for variety rights involves national security
or major interests and therefore needs to be kept confidential,
it shall be dealt with in accordance with the relevant national
regulations.
Article 20 If a foreigner, a foreign
enterprise or any other foreign institution files an application
for variety rights in China, the application shall be handled under
these Regulations in accordance with any agreement concluded between
the country to which the applicant belongs and the People's Republic
of China, or any international convention to which both countries
are party, or no the basis of the principal of reciprocity.
Article 21 For the purposes of applying
for variety rights, an application and specification conforming
to the prescribed forms as well as a photograph of the variety shall
be submitted to the examining and approving authorities.
The application documents shall be written in Chinese.
Article 22 The date on which the examining
and approving authorities receive the variety rights application
documents shall be the filing date of the application. Where the
application documents are filed by mail, the postmark date shall
be the filing date of the application.
Article 23 Where, within 12 months
from the date on which any applicant has first filed an application
for variety rights in a foreign language, the said applicant files
an application for variety rights in China in respect of the same
new plant variety, he or it 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 are
party, 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
statement when the application is filed, and shall submit, within
three months, a copy of the variety rights application documents
that were first filed, as confirmed by the original receiving authority;
if the applicant fails to make the written statement or fails to
submit a copy of the variety rights application documents under
the provisions of these Regulations, the claim to the right of priority
shall be deemed not to have been made.
Article 24 Where the variety rights
application conforms to Article 21 of the Regulations, the examining
and approving authorities shall accept it, assign the filing date
and a filing number and serve notice on the applicant within one
month from the receipt of the application to pay an application
fee.
Where the variety rights application does not, or after amendment
still does not, conform to Article 21 of the
Regulations, the examining and approving authorities shall not accept
it and shall notify the applicant accordingly.
Article 25 An applicant may amend or
withdraw his or its variety rights application at any time before
the variety rights are granted.
Article 26 Any application filed by
a Chinese entity or person with a foreign country for variety rights
in respect of a new plant variety that has been bred in China shall
be registered before the examining and approving authorities.
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Chapter V Examination and Approval of Variety Rights
Article 27 Upon payment of the application
fee, the examining and approving authorities shall carry out a preliminary
examination on the variety rights application to determine the following:
(a) whether it is part of the botanical genera or species included
in the list of protected plant varieties;
(b) whether it conforms to the provisions of Article 20 of the Regulations;
(c) whether it conforms to the provisions for novelty;
(d) whether the denomination of the new plant variety is adequate.
Article 28 The examining and approving authorities shall
complete the preliminary examination within six months after the
variety rights application is formally received. Where the variety
rights application is found acceptable on preliminary examination,
the examining and approving authorities shall have it published
and serve notice on the applicant to pay the examination fee within
three months.
Where the variety rights application is found unacceptable on preliminary
examination, the examining and approving authorities shall invite
the applicant to state his observations or make amendments; where
an applicant fails to respond within the time limit or the application
is still unacceptable after amendment, the application shall be
refused.
Article 29 After the applicant has paid the prescribed examination
fee, the examining and approving authorities shall carry out a substantive
examination of the distinctiveness, uniformity and stability of
the variety in respect of which variety rights are applied for.
Where the applicant has not paid the prescribed examination fee,
the variety rights application shall be deemed to have been withdrawn.
Article 30 The examining and approving authorities shall
conduct the substantive examination on the basis of application
documents and other relevant written information. Where they deem
it necessary, the examining and approving authorities may entrust
a designated testing institution with undertaking tests or with
inspecting the results of growing tests or other trials that have
already been carried out.
For the purpose of examination, the applicant shall at the request
of the examining and approving authorities, furnish necessary information
and the propagating material of the new plant variety in question.
Article 31 Where the variety rights application is found
to be in conformity with the provisions of these Regulations on
substantive examination, the examining and approving authorities
shall take a decision to grant the variety rights, issue the new
variety rights title, and have it registered and published.
Where the variety rights application is found not to be in conformity
with the provisions of these Regulations on substantive examination,
the examining and approving authorities shall refuse the application
and notify the applicant accordingly.
Article 32 The examining and approving authorities shall
set up a Re-Examination Board for New Varieties of Plants.
Where any applicant is not satisfied with the decision of the examining
and approving authorities refusing a variety rights application,
that applicant may, within three months from the date of receiving
the notification, request the Re-Examination Board for New Varieties
of Plants to carry out a re-examination. The Re-Examination Board
for New Variety Plants shall, within six months from the date of
receiving the request for re-examination, take a decision and notify
the applicant accordingly.
Where an applicant is not satisfied with the re-examination decision
of the Re-Examination Board for New Varieties of Plants, that applicant
may, within 15 days from the date of receiving the notification,
file a suit with the People's Court.
Article 33 After the variety rights have been granted, for
the period beginning on the date on which an acceptable application
is published on preliminary examination and ending on the date of
grant of variety rights, the variety rights holder is entitled to
claim compensation from an entity which, and an person who, has
produced or sold the propagating material of the protected variety
in question for commercial purposes without his consent.
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Chapter VI Term, Termination and Invalidity
Article 34 The term of protection of
variety rights, counted from the date of grant thereof, shall be
20 years for vines, forest trees, fruit trees and ornamental plants
and 15 years for other plants.
Article 35 The variety rights holder shall pay annual fees
from the year in which the variety rights are granted, and shall
furnish propagating material of the protected variety for the purposes
of control as required by the examining and approving authorities.
Article 36 Variety rights shall be terminated prior to the
expiration of the term thereof in any of the following cases:
(a) where the variety rights holder makes a written statement renouncing
his variety rights;
(b) where the variety rights holder has not paid the annual fee
as prescribed;
(c) where the variety rights holder has not furnished, in the manner
required by the examining and approving authorities, such propagating
material of the protected variety necessary for control;
(d) where, on control, the protected variety no longer conforms
to the features and characteristics that existed when the variety
rights were granted.
The termination of the variety rights shall be registered and published
by the examining and approving authorities.
Article 37 From the date on which the examining and approving
authorities publish the grant of variety rights, the Re-Examination
Board for New Varieties of Plants may, ex officio or on the basis
of a written request made by any entity or person, revoke the variety
rights in any variety that 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 published by the examining and approving authorities, and shall
be communicated to the parties concerned.
Where any party is not satisfied with the decision of the Re-Examination
Board for New Varieties of Plants, he or it may, within three months
from the date of receiving such communication, file a suit with
the People's Court.
Article 38 The variety rights that have been revoked shall
be deemed non-existent from the outset.
The decision to revoke variety rights shall have no retroactive
effect on any judgment or ruling pronounced and enforced by the
People's Court concerning the infringement of a new plant variety,
or on any decision made and enforced by the administrative departments
of agriculture and forestry of the People's Governments at provincial
level or above concerning the infringement of a new plant variety,
or on any executed license contract for exploitation of a new plant
variety or any executed contract of assignment of the rights in
a new plant variety. However, any damage caused to any other person
due to bad faith on the part of the variety rights holder shall
be equitably compensated.
If no repayment of the fees for the exploitation of the new plant
variety or of the price for the assignment of the variety rights,
pursuant to the provisions of the preceding paragraph, is made by
the variety rights holder or the assignor of the variety rights
to the licensee or the assignee, and if this is obviously contrary
to the principle of the equity, the variety rights holder or the
assignor of the variety rights shall repay the whole or part of
the fees for the exploitation of the variety or of the price for
assignment of the variety rights to the licensee or the assignee.
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Chapter VII Penalty Provisions
Article 39 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 with their respective competence, or directly
file a suit with the People's Court.
The administrative departments of agriculture and forestry of the
People's Governments at provincial level or above may, according
to their respective competence and based on the principle of free
will of the parties, mediate the compensation of damages caused
by the infringement. Where accord has been reached through mediation,
it should be executed by the parties concerned; where no accord
has been reached through mediation, the variety rights holder or
the party having an interest therein may file a suit with the People's
Court according to civil action procedures.
In handling cases of infringement of variety rights in accordance
with their respective competence, the administrative departments
of agriculture and forestry of the People's Governments at provincial
level or above may, for the purposes of safeguarding the public
interest of the society, order the infringer to stop the infringing
act, confiscate the unlawful earnings and punish him with a fine
five times more than unlawful earnings.
Article 40 Where any new plant variety
is counterfeited, the administrative departments of agriculture
and forestry of the People's Governments at county level or above
shall order the party concerned to stop the counterfeiting act,
confiscate the unlawful earnings and the propagating material of
the plant variety, and punish him with a fine at least one but not
exceeding five times more than the unlawful earnings; where the
circumstances of the case are so serious as to constitute a crime,
the party concerned shall be subjected to criminal liability investigation
in accordance with the law.
Article 41 Both the administrative
departments of agriculture and forestry of the People's Governments
at provincial level or above in handling cases concerning infringement
of variety rights in accordance with their respective competence,
and the administrative departments of agriculture and forestry of
the People's Governments at county level or above in handling cases
concerning counterfeited variety rights in accordance with their
respective competence, may, as appropriate, seal up or detain the
propagating material of the plant variety relevant to the cases,
have access to, make copies of and seal up contracts, account books
and other relevant documents related to the cases.
Article 42 Where the protected variety
is sold without using the denomination as used in its registration,
the administrative departments of agriculture and forestry of the
People's Governments at county level or above shall, in accordance
with their respective competence, order a correction within a specified
time limit, and may impose a fine not exceeding 1,000 yuan.
Article 43 Where disputes arise as
to the right to apply for a new variety of plant and the ownership
of the variety rights, the parties concerned may file a suit with
the People's Court.
Article 44 Where any staff member of
the administrative departments of agriculture and forestry of the
People's Governments at county level or above and of other departments
abuses his power, neglects his duty, engages in any malpractice
for private gain, or extorts or receives bribes, that staff member
shall be subjected to criminal liability investigation in accordance
with the law if the case constitutes a crime; or he shall be punished
with administrative sanctions in accordance with the law if it does
not constitute a crime.
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Chapter VIII Supplementary Provisions
Article 45 The examining and approving
authorities may provide for flexible provisions on novelty requirement
for the genera or species first included in the list of protected
plant varieties before the entry into force of these Regulations
and that for the genera or species included in the list of protected
plant varieties after the entry into force of the Regulations.
Article 46 These Regulations shall enter
into force as from October 1, 1997.
(In case of discrepancy, the original version
in Chinese shall prevail.)
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