(Promulgated by Decree No.213 of the State Council of the People's Republic of China on March 20, 1997, and effective on October 1, 1997)
Chapter I General Provisions
Article 1
For purposes of protecting the breeders' rights of new plants, encouraging the breeding and exploitation of new plant varieties and promoting the agriculture and forestry development, this Regulation is formulated.
Article 2
The expression "new plant varieties" as employed in this Regulation means new varieties of plants which are cultivated or developed based on discovered wild plants, possess novelty, distinctness, uniformity and stability and are designated generically by denominations.
Article 3
The administrative departments of the State Council in charge of agriculture and forestry (hereinafter called "the examination and approval organ") shall, in accordance with the division of their functions and duties, be jointly responsible for the receiving and examining of applications for, and the granting of, the rights of new plants varieties (hereinafter called "the breeder's rights") for those that comply with the provisions of this Regulation.
Article 4
People's governments at and above the county level or competent departments shall praise and reward the units and persons that have made the breeding of new plant varieties which have a bearing on the State's or public interests and are of great value for use.
Article 5
The production, sale and promotion of a new plant variety for which a breeder's right is granted (hereinafter called "the protected variety") shall be subject to examination and approval in accordance with the provisions of the State's laws and regulations on seeds.
Chapter II Content and Ownership of the Breeder's Rights
Article 6
Units or persons that accomplished the breeding have the exclusive right on their protected varieties. Without authorization of the owner of the breeders' right (hereinafter called "the holder of the breeder's right), no units or persons may produce or sell the propagating material of the protected variety or repeatedly use the propagating material of one protected variety in the production of the propagating material of another variety for commercial purposes, except otherwise provided for in this Regulation.
Article 7
Where the service breeding is accomplished by executing the tasks of the unit or mainly by using the facilities of the unit, the right of application for a new plant variety shall belong to the unit; with respect to the non-service breeding, the right thereof shall belong to the person accomplishing the breeding. If, in this case, an application is approved, the breeder's right shall belong to the applicant.
Where the breeding is accomplished in a commissioned or joint form, the ownership of the breeder's right shall be agreed by the parties thereto in the contract; if no contracts are available, the breeder's right shall belong to the unit or person that is commissioned or jointly accomplished.
Article 8
Only one breeder's right may be granted for one new plant variety. Where two or more applicants apply separately for the breeder's right for one new plant variety, the breeder's right shall be granted to the person who apply first; if the application is filed at the same time, the breeder's right shall be granted to the applicant who has first accomplished the breeding.
Article 9
The right of application and the breeder's right for a new plant variety may be assigned according to law.
Where a China's unit or person intends to assign the right of application or the breeder's right of a new plant variety bred in the territory of China to a foreigner, the assignment shall be subject to approval of the examination and approval organ.
A State-owned unit intending to assign the application right or the breeder's right shall, in accordance with the relevant regulations of the State, file it with the appropriate administrative department for approval.
In the case of assignment of the application right or the breeder's right, the parties thereto shall enter into a written contract and register with the examination and approval organ. The latter shall make a public notice.
Article 10
Without prejudice to any other rights enjoyed by the holder of the breeder's right according to this Regulation, no authorization of the holder of the breeder's right or no payment of royalties may be required if the variety is employed under the following circumustances:
1. using the protected variety in the breeding and other scientific research activities;
2. using by farmers the propagating materials of the protected variety, which are obtained by themselves and for their own use.
Article 11
For the purpose of the State's or the public interests, the examinination and approval organ may, by a decision, grant the compulsory license to use a new plant variety and shall make registration and announcement therefor.
The unit or person obtaining the compulsory license shall pay required fees to the holder of the breeder's right with the amount thereof fixed by both parties thereto. If they fail to do so, the examination and approval organ shall render an adjudication.
A holder of the breeder's right disagreeing with the decision of a compulsory license or with the adjudication on the fees for using the compulsory license may, within 3 months following the receipt of notification, bring an action before a people's court.
Article 12
In selling a protected variety, its registered denomination shall be used, regardless of whether or not its period of protection has expired.
Chapter III Conditions for the Grant of the Breeder's Right
Article 13
The new plant varieties for which the breeders' rights have been applied shall be under the plant genus or species as may be prescribed by the State's list of plant varieties protection. The list shall be determined and announced by the examination and approval organ.
Article 14
A new plant variety for the grant of the breeder's right shall poss novelty. Novelty means that, at the date of filing of the application for the breeder's right, propagating material of the new variety has not been sold or with the consent of the breeder, has been sold in the territory of China, earlier than 1 year before that date; or in a territory other than China, earlier than 4 years before the said date, or in the case of vines, forest trees, fruit trees and ornamental plants, earlier than 6 years before the said date.
Article 15
A new plant variety for the grant of the breeder's right shall poss distinctness. Distinctness means that the new plant variety for which the breeder's right is applied shall be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application.
Article 16
A new plant variety for the grant of the breeder's right shall poss uniformity. Uniformity means that, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant features or characteristics.
Article 17
A new plant variety for the grant of the breeder's right shall poss stability. Stability means that its relevant features or characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
Article 18
A new plant variety for the grant of the breeder's right shall poss an suitable denomination which must be different from every denomination that designates an existing variety of the same plant species or of a closely related species. A denomination will, subject to the registration, be the generic designation of the new plant variety.
The followings may not be used as the denomination of varieties:
1. those consisting solely of figures;
2. those violating social morals;
3. those being liable to mislead or to cause confusion concerning the features or characteristics of the new plant variety or the identity of the breeder.
Chapter IV Application for the Breeders' Rights and Receiving
Article 19
A China's unit or person applying for the breeder's right may, directly or through an agency, file the application with the examination and approval organ.
An application by a China's unit or person for the breeder's right of a new plant variety shall, if involving security or other major interests of the State and requiring to be kept under secret or confidential conditions, be governed by the relevant regulations of the State.
Article 20
An application made by a foreigner, foreign enterprise or any other foreign organization for a breeder's right in China shall be governed by the agreement concluded between the country to which the applicant belongs and the People's Republic of China or by the international convention to which both countries are parties or on the basis of the principle of reciprocity in accordance with this Regulation.
Article 21
In applying for the breeder's right, the applicant shall submit to the examination and approval organ a written application, specification and photos of the variety, which shall conform to the requirements.
All documents for the application shall be written in the Chinese language.
Article 22
The date on which the examination and approval organ receives the application documents for the breeder's right shall be the date of filing. If the application documents are submitted by mail, the date of mailing indicated by the postmark shall be the date of filing.
Article 23
An applicant may, if filing in China, within 12 months from the date on which he has first filed in a foreign country an application for the breeder's right, an application for the breeder's right of the same new plant variety, have the right of priority in accordance with the agreement concluded between the foreign country and the People's of Republic of China or the international treaty to which both countries are partis or on the basis of the principle of mutual recognition of the right of priority.
An applicant shall, if claiming the right of priority, make a written statement at the time of the filing and submit, within 3 months, copies of the initial application documents for the breeder's right, which are certified by the original receiving organ; A failure of written statement or submission as required by this Regulation shall be deemed not to claim the right of priority.
Article 24
The examination and approval organ shall accept the application for the breeder's right which conforms to the provisions of this Regulation, fix the date of filing, grant the filing number and within 1 month following the receipt of the application, inform the applicant to pay the application fees.
If an application for the breeder's right fails to conform or, after change, still fails to conform, to the provisions of Article 21 of this Regulation, the examination and approval organ shall not accept it and inform the applicant therefor.
Article 25
The applicant may, before the grant of the breeder's right, make a change or withdrawal of his application.
Article 26
Where China's units or persons apply to foreign countries or territories for the new plant varieties bed in China, registration with the examination and approval organ shall be required.
Chapter V Examination and Approval of the Breeders' Rights
Article 27
The examination and approval organ shall, after the applicant pays the required fees, make a preliminary examination with respect to the following items of the application for the breeder's right:
1. Whether or not it is under the plant genera or species outlined in the list of plant varities protection;
2. Whether or not it conforms to the provisions of Article 20 of this Regulation;
3. Whether or not it conforms to the provisions on novelty;
4. Whether or not the denomination of the new plant variety is suitable.
Article 28
The examination and approval organ shall, within 6 months following the date of receiving the application for the breeder's right, complete the preliminary examination. If the application is deemed to conform to the requirements subject to the preliminary examination, the examination and approval organ shall make a public announment and inform the applicant to pay the examination fees within 3 months.
If the application for the breeder's right is deemed not to conform to the requirements subject to the preliminary examination, the examination and approval organ shall require the applicant to make a statement or a change within 3 months; if the applicant fails to respond within the specified time limit or the application still fails to conform to the requirements after the change, the application shall be denied.
Article 29
The examination and approval organ shall, after the applicant pays the examination fees as required, make an examination with respect to the distinctness, uniformity and stability.
In the case where an applicant fails to pay the examination fees as required, his application for the breeders' rights shall be deemed to be withdrawn.
Article 30
The examination and approval organ shall make the examination on the basis of application documents and other relevant written information. If it deems as necessary, the organ may entrust a designated testing organization to conduct tests or may investigate the results of breeding or other trials, which have already been carried out.
The applicant shall, as required by the examination and approval organ for the examination, provide necessary information and the propagating material of the new plant being examined.
Article 31
If an application for the breeder's right is deemed, subject to the examination, to conform to the provisions of this Regulation, the examination and approval organ shall, by a decision, grant the breeder's right, issue the certificate of the right, and register and announce it.
In the case where an application fails to conform to the provisions of this Regulation after examination, the examination and approval organ shall deny it and inform the applicant therefor.
Article 32
The examination and approval organ institutes a New Plant Varieties Reexamination Committee.
An applicant disagreeing with the decision of the examination and approval organ on the deny of the application may, within 3 months following the date of receiving notification, request the New Plant Varieties Reexamination Committee for reexamination. The Committee shall, within 6 months following the date of receiving the request, make a decision and notify the applicant.
An applicant disagreeing with the decision of the New Plant Varieties Reexamination Committee may, within 15 days following the date of receiving notification, bring an action before a people's court.
Article 33
If, after the breeder's right is granted, any unit or person, without consent of the applicant, produces or sells for commercial purposes the propagating material of the protected varity during the period beginning from the date on which an acceptable application is announced on preliminary examination and ending on the date of granting the breeder's right, the holder of the breeder's right has the right to claim compensation.
Chapter VI Duration, Termination and Nullity
Article 34
As respects vines, forest, fruit and ornamental trees, the period of protection for the breeder's right shall be 20 years from the date of the grant of the right, and as respects any other plants, the said period shall be 15 years.
Article 35
The holder of the breeder's right shall, from the year of granting the breeder's right, pay the annual fees and, as required by the examination and approval organ, offer the propagating material of the protected variety for testing.
Article 36
The breeder's right shall be terminated before it expires under one of the following circumstances:
1. The holder of the breeder's right declares in writing to surrender his right;
2. The holder of the breeder's right fails to pay the required annual fees;
3. The holder of the breeder's right fails to offer the propagating material of the protected variety for testing as required by the examination and approval organ; or
4. Subject to testing, the protected variety fails to conform to the features and characteristics that existed at the time of the grant of the breeder's right.
The termination of the said right shall be registered and announced by the examination and approval organ.
Article 37
From the date following the announcement of the examination and approval organ for the grant of the breeder's right, the New Plant Varieties Reexamination Committee may, in accordance with its duties and powers or as requested in writing by a unit or person, declare null and void the breeder's right of the variety which fails to comply with the provisions of Articles 14, 15, 16 and 17 of this Regulation; or change the denomination of the variety which fails to comply with the provisions of Article 18 of this Regulation. The decision of nullity or the change shall be registered and announced by the examination and approval organ, and the said organ shall notify the parties concerned.
A party concerned disagreeing with the decision of the New Plant Varieties Reexamination Committee may, within 3 months from the date following the receipt of notification, bring an action before a people's court.
Article 38
The breeder's right being declared null and void shall be deemed non-existing from the beginning.
The decision of nullity of the breeder's right shall have no retroactive effect on any judgment or order on the said right infringement made and enforced by the people's court, or on any decision on the said right infringement made and enforced by the administrative departments of agriculture and forestry of the people's government at or above the provincial level, or on any executed license contract for exploitation of a new variety or any executed contract of assignment of the breeder's right. If any loss is, however, caused to any other person due to bad faith of the holder of the breeder's right, a suitable payment for the loss shall be required.
According to the provisions of the preceding paragraph, the holder or assignor of the breeder's right shall, if failing to pay back the fees for the exploitation or for the assignment to the licensee or the assignee, which is obviously contrary to the principle of equity, return the whole or part of the exploitation fees or of the assignment fees to the licensee or the assignee.
Chapter VII Punishment Provisions
Article 39
In the case where, without authorization of the holder of the breeder's right, the propagating material of the protected variety is produced or sold for commercial purposes, the holder of the breeder's right or the interested party may request the administrative departments of agriculture and forestry of the people's government at or above the provincial level to handle it pursuant to their respective competence, or may directly bring an action before a people's court.
The administrative departments of agriculture and forestry of the people's government at or above the provincial level may, pursuant to their respective competence and the principle of wishes of the parties concerned, mediate the liability for damages caused by the infringement. If an agreement is reached through mediation, the parties concerned shall comply with it; if mediation fails, the holder of the breeder's right or the interested party may bring an action before a people's court in accordance with the civil procedures.
For the purpose of safeguarding the social and public interests, the administrative departments of agriculture and forestry of the people's government at or above the provincial level may, in handling the infringement of the breeder's right pursuant to their respective competence, order the infringer to stop the infringing act, confiscate the ill-gottern gains therefrom and concurrently impose thereon a fine not exceeding five times of the ill-gottern gains.
Article 40
In the case where a variety counterfeits as a protected variety, the administrative departments of agriculture and forestry of the people's government at or above the county level shall, pursuant to their respective competence, order the party concerned to stop the counterfeiting act, confiscate the ill-gottern gains therefrom and the propagating material of the variety and concurrently impose thereon a fine exceeding one time and not exceeding five times of the ill-gotten gains; if the act is serious enough to constitute a crime, criminal responsibility shall be demanded for according to law.
Article 41
When necessary, the administrative departments of agriculture and forestry of the people's government at or above the provincial level handling the breeder's right infringement pursuant to their respective competence and the administrative departments of agriculture and forestry of the people's government at or above the county level handling the counterfeiting of the protected variety pursuant to their respective competence may seal up or detain the propagating material of the variety relevant to the case, have access to, make copies of and seal up contracts, account books and other relevant documents related to the case.
Article 42
In the case where a protected variety is sold without using its registered denomination, the administrative departments of agriculture and forestry of the people's government at or above the county level shall, pursuant to their respective competence, order a correction within a specified time limit and may impose thereon a fine not exceeding 1,000 yuan.
Article 43
In the case where a dispute arises in respect to the right to apply for a new plant variety or to the ownership of the breeder's right, the parties thereto may bring an action before a people's court.
Article 44
In the case where a member of administrative departments of agriculture and forestry of people's governments at and above the county level and of other relevant departments abuses his power, neglects his duty of office, engages in any malpractice or irregularities or solicits or accepts bribes, his criminal responsibility shall be demanded for according to law if a crime is constituted; or he shall be punished with disciplinary sanctions according to law if a crime is not constituted.
Chapter VIII Supplementary Provisions
Article 45
The examination and approval organ may provide the adaption in respect to novelty for the plant genera or species first included in the list of plant varities protection before the entry into force of this Regulation or for ones newly included in the said list after the entry into force of this Regulation.
Article 46
This Regulation shall enter into force on October 1, 1997.
