The protection of new varieties of plants, also known as “‘plant breeders’ rights”, refers to exclusive monopoly rights granted to the breeder of a new plant variety that give the breeder the right to exclude others by utilizing the variety thereof. It is a form of intellectual property right, and like patent, copyright, trademark and industrial external-design right, is an important component of the protection for intellectual property right. In our country, the Ministry of Agriculture and the State Forestry Administration are responsible for the examination and granting of new varieties of agricultural plants and new varieties of forestry plants, respectively.
I. Along with the continuous expansion of the scope of protection lists of new varieties of agricultural and forestry plants in our country, the number of application and authorization of plant variety rights increases rapidly.
The Ministry of Agriculture released “Protection List of Agricultural Plants of the PRC (the Tenth Batch)” on April 16, 2016, which came into effect on May 16, 2016.
This release list involves 45 genera (species); together with 93 genera (species) of the previous nine batches, there are 138 genera (species) of protected agricultural plants at present. In the tenth batch of list, there are 11 species of vegetables, 11 species of flowers, 6 species of fruit trees, 6 species of Chinese herbs, and 11 other species.
Along with the continuous expansion of the lists of protected varieties of the Ministry of Agriculture, the number of application and authorization of plant variety rights increases rapidly. According to the information published by the Ministry of Agriculture, there were 2069 applications and 1413 announcement authorizations of new variety rights of agricultural plants in China in 2015. By the end of 2015, the number of accumulated applications of new variety rights of agricultural plants in our country reached 15552, and the number of accumulated authorizations reached 6258.
Meanwhile, an expert seminar on the sixth batch of protection list of new varieties of forestry plants was held in the Chinese Academy of Forestry on May 6, 2016. By the common consent of all experts, eight genera such as Gardenia are recommended as the sixth batch of protection list of new varieties of forestry plants. The first to fifth batches of protection lists of new varieties of forestry plants that have already come into effect comprise a total of 198 genera (species).
According to the information published by theChineseAcademyof forestry, by the end of 2015, there were 1788 applications of new varieties of forestry plants, including 1481 domestic applications accounting for 82.8%, and 307 foreign applications accounting for 17.2%; there were 1003 authorizations, including 839 domestic authorizations accounting for 83.6%, and 164 foreign authorizations accounting for 16.4%.
China newly established national standards of testing guidelines for five species of new varieties of plants in late February 2016. The Testing Guidelines of Distinctness, Uniformity and Stability of New Varieties of Plants for five genera (species) including Ulmus, Thuja, Pinus, Ampelopsis, and Eucalyptus subgenus Symphyomyrtus enter a new batch of forestry national standards.
At present, China takes various measures to encourage applications of new varieties of plants. The Ministry of Agriculture and the State Forestry Administration have reduced the annuity of protected rights of new varieties of plants since October 15, 2015. This year the Ministry of Agriculture plans to open an online application system to optimize the examination process, in a bid to shorten the average time it takes to obtain authorization during examination of new varieties from three years and six months at the end of 2015 to three years and three months, thereby reaching the international average level.
II. The newly revised Seed Law has been formally implemented since January 1, 2016.
The Seed Law of the People’s Republic of China that was revised last year has been formally implemented since January 1, 2016. The revised Seed Law mainly involves changes in the following several aspects:
(1) The protection of germplasm resources of forest trees is strengthened (see Article 11 of the Seed Law).
(2) The legal status of the protection of new varieties of plants is enhanced. A new chapter “the Protection of New Varieties” is added, so as to make the contents of the original Regulations of the People’s Republic of China on the Protection of New Varieties of Plants upgrade a law. There are principle provisions on the authorization conditions, authorization principles, and variety denomination of new varieties of plants. Besides, the law significantly increases the civil damage standard and the administrative punishment intensity on infringement and counterfeiting behaviors.
(3) As prescribed in Article 25 of the Seed Law, a plant variety is granted a new plant variety right by the competent agricultural department and the competent forestry department under the State Council, if it performs artificial selection or improves a found wild plant within the national plant variety protection lists, as well as possesses novelty, distinctness, uniformity, stability and appropriate denomination.
(3.1) Regarding “performs artificial selection or improves a found wild plant within the national plant variety protection lists”:
The first thing is that only a plant variety within the national agricultural and forestry plant variety protection lists can be filed an application for the protection of variety right with the Ministry of Agriculture and the State Forestry Administration. Secondly, a variety obtained by making improvement on a found wild plant shall have different traits from the original wild plant; otherwise, it may hardly meet the requirement of distinctness. When filing an application for the protection of a variety right with the Ministry of Agriculture and the State Forestry Administration, it is necessary to describe the breeding method, and elaborate not only the breeding process, but also origins of the male and female parents of the variety, as well as indicate the pedigree of the application variety.
(3.2) Regarding “novelty”:
As prescribed in Article 92, Item (6) of the Seed Law, novelty means that, prior to the date of the application, the seed of a variety of an application for a plant variety right has not been sold or marketed for more than one year in the territory of China, or more than four years in any foreign jurisdiction (or six years in the case of a xylophyta or vine), by the applicant itself or upon approval by the applicant.
In addition, the following provision is newly added:
“After the implementation of the present law, a species or genus of a plant newly listed in a national plant variety protection list, when filing an application for a new plant variety right within one year from the release date of the list, possesses novelty if its seed has not been sold or marketed for more than four years in the territory of China.
Apart from selling and marketing behaviors leading to loss of novelty, the following cases are deemed to have lost novelty:
1. It is confirmed by the competent agricultural and forestry departments of the people’s governments of provinces, autonomous regions or municipalities directly under the central government according to the sown area that a virtual diffusion has already been formed;
2. A crop variety has not filed an application of a new plant variety right after more than two years from the date of approval or registration.”
When filing an application for the protection of variety right with the Ministry of Agriculture, it is required to fill in the sale situation of the application variety; in case of a variety sold, it is required to indicate where and when the selling began.
(3.3) Regarding “distinctness”:
As prescribed in Article 92, Item (7) of the Seed Law, distinctness means that a plant variety has more than one trait clearly distinguishable from any other publicly known variety.
As prescribed in Article 92, Item (10) of the Seed Law, a publicly known variety refers to a plant variety which has been accepted as a variety application, or has passed variety approval, variety registration, and new variety protection, or has been sold and marketed.
In documents of the application for the protection of a variety right submitted with the Ministry of Agriculture and the State Forestry Administration, it is necessary to select a publicly known variety with the closest trait to the application variety from the same or similar plant genus or species as a similar variety, and compare the difference in trait between it and the application variety, so as to judge whether the application variety possesses distinctness or not.
(3.4) Regarding “uniformity”:
As prescribed in Article 92, Item (8) of the Seed Law, uniformity means that apart from predictable natural variations in traits of a plant variety, the relevant features or traits among individuals within population are uniform.
(3.5) Regarding “stability”:
As prescribed in Article 92, Item (9) of the Seed Law, stability means that a plant variety remains unchanged with regard to its main traits after repeated propagation or at the end of a specific propagation cycle.
As for the distinctness (D), uniformity (U) and stability (S) of an application variety, the examination institution conducts examination on the basis of the result of the DUS testing. The DUS testing is arranged by the examination institution. Regarding varieties with testing conditions, the applicant shall provide their propagating materials to the examination institution. Regarding varieties incapable of being tested such as perennial fruit trees, the examination institution shall inform the applicant of an on-site inspection.
(3.6) Regarding “appropriate denomination”:
Article 27 of the Seed Law newly adds the following provision: the same plant variety can only adopt the same name in the process of the application for the new variety protection, variety approval, variety registration, marketing, and sales. The seed that is produced, marketed and sold shall be in conformity with the sample provided in the process of the application for the new plant variety protection, variety approval, and variety registration.
Since the State Council issued the Regulations of the People’s Republic of China on the Protection of New Varieties of Plants on March 20, 1997, and since the Ministry of Agriculture and the State Forestry Administration respectively released the first batch of national protection list of agricultural and forestry plants in 1999, the protection system for new plant variety has been improved step by step, and the protected plant varieties have also increased regularly, vigorously promoting the research and innovation in the field of plant varieties, and boosting the development of agriculture and forestry production. It is obvious that the protection of new plant varieties is being strengthened greatly in China.