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| Category | AGRICULTURE, FORESTRY AND METEOROLOGY | Organ of Promulgation | The State Council | Status of Effect | In Force |
| Date of Promulgation | 1997-03-20 | Effective Date | 1997-10-01 |
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Regulations of the People's Republic of China on the Protection of New Varieties of Plants |
|---|
Article 1 These Regulations are enacted 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 variety of plant referred to in these Regulations,
means a cultivated variety, or a developed one based on a discovered wild
plant, which possesses novelty, distinctness, uniformity and stability, and
which is designated by an adequate denomination.
Article 3 The administrative departments of agriculture and forestry
under the State Council(hereinafter referred generally to as the "examining
and approving authorities") are jointly responsible, according to the
division of their responsibilities, for the receipt and examination of
application for rights in new varieties of plants(hereinafter referred to
as "variety rights"), and for the grant of variety rights for those that
conform to the provisions of these Regulations.
Article 4 Any entity which or any person who has accomplished the
breeding of a new variety that has a bearing on the national interests or the
public interests, and is of great value for use, he or it shall be rewarded
by the People's Governments above county level or the relevant departments
under them.
Article 5 The production, sale and dissemination of a new variety for Article 6 The entity which or the person who has accomplished the Article 7 For service breeding accomplished by any person in execution For commissioned breeding or jointly conducted breeding, the ownership of Article 8 One new variety shall be granted only one set of variety Article 9 The right to apply for a variety right and the variety right Any assignment, by a Chinese entity or person, of the right to apply for Any assignment within China, by a state-owned entity, of the right to Article 10 Without prejudice to other rights of the variety right owner (a) exploitation of the protected variety for breeding and other (b) the use by farmers for propagating purposes, on their own holdings, Article 11 The examining and approving authorities may, in the national The entity which or the person who is granted a compulsory license for Where the variety right owner is not satisfied with the decision to grant Article 12 Regardless of whether or not the term of protection of the Article 13 The new variety for which a variety right has been applied Article 14 Any variety for which a variety right may be granted shall Article 15 Any variety for which a variety right may be granted shall Article 16 Any variety for which a variety right may be granted shall Article 17 Any variety for which variety right may be granted shall Article 18 Any variety for which variety right may be granted shall have The following shall be avoided in the selection of a denomination for (a) those consisting of only numbers; (b) those violating social morals; (c) those that are liable to mislead or to cause confusion concerning Article 19 Where any Chinese entity or person applies for a variety Where the new variety for which a Chinese entity and person applies for Article 20 Where any foreigner ,foreign enterprise or any other foreign Article 21 For the purpose of applying for a variety right, an The application documents shall be written in Chinese. Article 22 The date on which the examining and approving authorities Article 23 Where, within 12 months from the date on which any applicant Any applicant who claims the right of priority shall make a written Article 24 Where the variety right application conforms to Article 21 Where the variety right application dose not, or after amendment still Article 25 An applicant may amend or withdraw his or its variety right Article 26 Any variety right application, filed by a Chinese entity or Article 27 Upon payment of the application fee, the examining and (a) whether it is under the plant genera or species included in the list (b) whether it conforms to the provisions of Article 20 of these (c) whether it conforms to the provisions on novelty; (d) whether the denomination of the new variety is adequate. Article 28 The examining and approving authorities shall complete the where the variety tight application is found unacceptable on preliminary Article 29 After the applicant has paid the prescribed examination fee, Where the applicant has not paid the prescribed examination fee, the Article 30 The examining and approving authorities shall conduct the For the purposes of examination, the applicant shall, at the request of Article 31 Where the variety right application is found to be in Where, after substantive examination, the variety right application is Article 32 The examining and approving authorities shall setup Variety Where any applicant is not satisfied with the decision of the examining Where any applicant is not satisfied with the decision of the Variety Article 33 After the variety right has been granted, any entity which or Article 34 The term of protection of a variety right, counted from the Article 35 The variety right owner shall pay an annual fee from the year Article 36 The variety right shall be terminated prior to its expiration (a) where the variety right owner makes a written statement renouncing (b) where the variety right owner has not paid the annual fee as (c) where the variety right owner has not furnished, in the manner (d) where, on testing, the protected variety no longer conforms to the The termination of the variety right shall be registered and announced Article 37 From the date on which the examining and approving Where any party is not satisfied with the decision of the Variety Right Article 38 Any variety right that has been declared null and void shall The decision of nullity of a variety right shall have no retroactive If, pursuant to the provisions of the preceding paragraph, no repayment Article 39 Where the propagating material of the protected variety is The administrative departments of agriculture and forestry of the In handling cases of variety right infringements in accordance with their Article 40 Where any variety counterfeits as a protected variety, the Article 41 The administrative departments of agriculture and forestry Article 42 Where the protected variety is sold without using its Article 43 Where disputes arises as to the right to apply for a variety Article 44 Where any staff member of the administrative departments of Article 45 The examining and approving authorities may provide for Article 46 These Regulations shall enter into force as from October 1,
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which a variety right has been granted (hereinafter referred to ad the
"protected variety") is subject to review and approval in accordance with the
provisions of relevant laws and regulations on seeds.
CHAPTER II CONTENT AND OWNERSHIP OF VARIETY RIGHTS
breeding enjoys an exclusive right on his or its protected variety. Except
otherwise provided in these Regulations, no other entities or persons shall,
without the authorization of the owner of the variety right (hereinafter
referred to as the "variety right owner"), produce or sell for commercial
purposes the propagating material of the said protected variety, or use
repeatedly for commercial purposes the propagating material of the said
protected variety in the production of the propagating material of another
variety.
of the tasks of the entity to which he belongs, or mainly by using the
facilities of that entity, the right to apply for a variety right shall
belong to the entity in question; for non-service breeding, the right to
apply for such a variety right shall belong to the person accomplishing the
breeding. Upon approval of the application, the variety right shall belong
to the applicant.
the variety right shall be agreed upon by the parties concerned in
a contract; lacking of such a contract, the variety right shall belong to
the entity which or person who commissioned to conduct or jointly conducted
the breeding.
right. Where two or more applicants apply separately for the variety right
for the same new variety , the variety right shall be granted to the person
whose application file first; in the case of simultaneous applications, the
variety right shall be granted to the person who has first accomplished the
breeding.
in respect of a new variety may be assigned according to the law.
a variety right or the variety right of the new variety bred in China, to a
foreigner, must by approved by the examining and approving authorities.
apply for variety right or of the variety right, must be submitted in the
light of the relevant national provisions for approval by the competent
administrative departments concerned.
under these Regulations, the exploitation of the protected variety may not
require authorization from, or payment of royalties to, the variety right
owner for the following purposes:
scientific research activities;
of the propagating material of the protected variety which they have obtained
by planting on their own holdings.
interests or the public interests, make decision to grant compulsory licenses
to exploit new varieties of plants, which shall be registered and announced.
exploitation shall pay to the variety right owner a reasonable exploitation
fee, the amount of which shall be fixed by both parties in consultation.
Where the parties fail to reach an agreement, the examining and approving
authorities shall adjudicate.
a compulsory license for exploitation or is not satisfied with the
adjudication regarding the fee payable for exploitation, he or it may, within
3 months from the date of receiving the notification, institute legal
proceedings in the People's Court.
protected variety has expired, the denomination of the protected variety as
used in its registration must be used for sales thereof.
CHAPTER III CONDITIONS FOR THE GRANT OF VARIETY RIGHTS
for shall be under the plant genera and species included in the national list
of protected plant genera and species. This list of protected plant genera
and species shall be determined and announced by the examining and approving
authorities.
possess novelty. Novelty means that, at the date of filing of the application
for a variety right, the propagating material of the new variety has not been
sold, or with the authorization of the breeder, within the territory of
China, earlier than 1 year before that date; in a territory other than China,
earlier than 4 years , or in the case of vines, forest trees, fruit trees and
ornamental plants, earlier than 6 years.
possess distinctness. Distinctness means that, the variety for which a
variety right is applied for must be clearly distinguishable from any other
variety whose existence is a matter of common knowledge at the time of the
application.
possess uniformity. Uniformity means that the variety for which a variety
right is applied for is sufficiently uniform in its relevant features or
characteristics after propagation, subject to variation that may be expected
from the particular features of its propagation.
possess stability. Stability means that the variety for which a variety right
is applied for keeps its relevant features or characteristics unchanged after
repeated propagation or at the end of a particular cycle of propagation.
an adequate denomination, which shall be distinguishable from that for any
other known variety of the same or similar plant genera or species. The
denomination, after its registration, shall be the generic designation of
the new variety in question.
a new variety:
the features or characteristics of the new variety, or identity of the
breeder.
CHAPTER IV APPLICATION FOR VARIETY RIGHTS AND RECEITPT THEREOF
right, he or it may file an application with the examination and approving
authorities directly or through an agency commissioned for the purpose.
a variety right involves security or other vital interests of the state and
therefore requires to be kept confidential, it shall be dealt with in
accordance with the relevant prescriptions of the state.
institution files an application for a variety right in China, the
application shall be 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 in accordance with any international convention to
which both countries are party, or on the basis of the principle of
reciprocity.
application, specification and photographs of the variety conforming to the
prescribed forms shall be submitted to the examining and approving
authorities.
receive the application documents shall be the date of filing. If the
application is sent by mail, the date of mailing indicated by the postmark
shall be the date of filing.
has first filed in a foreign country an application for a variety right, the
said applicant files an application for a variety right in China for the same
new variety, he or it may, in accordance with any agreement concluded between
the said foreign country and the People's of Republic of China, or in
accordance with any international treaty to which both countries are party,
or on basis of the principle of mutual recognition of the right of priority,
enjoy a right of priority.
statement when the application is filed, and submit, within 3 months, a copy
of the variety right application that was 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 application according to the
provisions of these Regulations, the claim to the right of priority shall be
deemed not to have been made.
of these Regulations, the examining and approving authorities shall accept
it, establish the date of filing, assign a filing number and serve a notice
on the applicant within 1 month from the receipt of the application to pay
an application fee.
does not, conform to Article 21 of the Regulations, the examining and
approving authorities shall not accept it and shall notify the applicant
accordingly.
application at any time before the variety right is granted.
person with a foreign county for a new variety bed in China, shall be
registered before the examining and approving authorities.
CHAPTER V EXAMINATION AND APPROVAL OF VARIETY RIGHTS
approving authorities shall carry out a preliminary examination on the
variety right application of the following items:
of protected plant genera or species;
Regulations;
preliminary examination within 6 months from the date that the variety right
application is accepted. Where the variety right application is found
acceptable on preliminary examination, the examination and approving
authorities shall have it announced and serve a notice on the applicant to
pay the examination fee within 3 months.
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.
the examining and approving authorities shall carry out a substantive
examination on the distinctness, uniformity and stability of the variety
right application.
variety rights application shall be deemed to have been withdrawn.
substantive examination the basis of application documents and other relevant
written information. Where they deem it necessity, the examining and
approving authorities may entrust a designated testing institution with
undertaking tests or may inspect the results of breeding or other trials
that have already been carried out.
the examining and approving authorities, furnish necessary information and
the propagating material of the variety in question.
conformity with the provisions of these Regulations, the examining and
approving authorities shall make a decision to grant the variety right, issue
the variety right title, and have it registered and announced.
found not to be in conformity with the provisions of these Regulations, the
examining and approving authorities shall refuse the application and notify
the applicant accordingly.
Right Re-examination Boards.
and approving authorities refusing the variety right application, that
applicant may, within 3 months from the date of receiving the notification,
request the Variety Right Re-examination Board to carry out a re-examination.
The Variety Right Re-examination Board shall, within 6 months from the date
of receiving the request for re-examination, make a decision and notify the
applicant accordingly.
Right Re-examination Board, that applicant may, within 15 days from the date
of receiving the notification, institute legal proceedings in the People's
Court.
person who, during the period beginning from the date on which an acceptable
application is announced on preliminary examination and ending on the date of
grant of variety rights, had produced or sold the propagating material of the
variety in question for commercial purposes without his authorization of the
variety right owner, the variety right owner is entitled to claim
compensation.
CHAPTER VI TERM, TERMINATION AND NULLITY OF VARIETY RIGHTS
date of grant thereof, shall be 20 years for vines, forest trees, fruit trees
and ornamental plants and 15 years for other plants.
in which the variety right is granted, and shall furnish propagating material
of the protected variety for the purposes of testing as required by the
examining and approving authorities.
in any of the following cases:
his or its variety right;
prescribed;
required by the examining and approving authorities, such propagating
material of the protected variety necessary for testing;
features and characteristics that existed at the time of the grant of the
variety right.
by the examining and approving authorities.
authorities announce the grant of any variety right, the Variety Right
Re-examination Board may, ex officio or on the basis of a written request
made by any entity or person, declare the variety right null and void, when
the variety 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 of nullity of the variety right and the decision to change the
denomination shall be registered and announced by the examining and approving
authorities, and shall be notified to the parties concerned.
Re-examination Board, he or it may, within 3 months from the date of
receiving such notification , institute legal proceedings in the People's
Court.
be deemed non-existent from the outset.
effect on any judgment or order on variety right infringement pronounced and
enforced by the People's Court, or on any decision on variety right
infringement made and enforced by the administrative departments of
agriculture and forestry of the People' Governments above provincial level,
or on any executed license contract for exploitation of a new variety or any
executed contract of assignment of a variety right. However, any damage
caused to any other person in bad faith on the part of the variety right
owner shall be equitably compensated.
of the fees for the exploitation of the new variety or of the price for the
assignment of the variety right, is made by the variety right owner or the
assignor of the variety right to the licensee or the assignee, which is
obviously contrary to the principle of equity, the variety right owner or
the assignor of the variety right shall repay the whole or part of the
exploitation fee or of the assignment fee to the licensee or the assignee.
produced or sold for commercial purposes without the authorization of the
variety right owner, the variety right owner or the party having an interest
therein may, request the administrative departments of agriculture and
forestry of the People's Governments above provincial level to handle it in
accordance with their respective competence, or directly institute legal
proceedings in the People's Court.
people's Governments above provincial level 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
right owner or the party having an interest therein may institute legal
proceedings in the People's Court according to civil action procedures.
respective competence, the administrative departments of agriculture and
forestry of the People's Governments above provincial level may, for the
purposes of safeguarding the public interests, order the infringer to stop
the infringing act, confiscate the unlawful earnings and impose a fine not
exceeding five times of the unlawful earnings.
administrative departments of agriculture and forestry of the People's
Governments above county level shall order the party concerned to stop the
counterfeiting act, confiscate the unlawful earnings and the propagating
material of the variety, and impose a fine at least one time but not
exceeding five times of 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 in accordance with the law.
of the People's Governments above provincial level in handling cases
concerning variety right infringements in accordance with their respective
competence, and the administrative departments of agriculture and forestry
of the People's Governments above county level in handling cases concerning
counterfeiting protected variety in accordance with their respective
competence, may, as necessary, seal up or detain the propagating material
of the 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.
registered denomination, the administrative departments of agriculture and
forestry of the People's Governments above county level shall, in accordance
with their respective competence, order a correction within a specified
period, and may impose a fine not exceeding 1,000 Yuan.
right and the ownership of the variety right, the parties concerned may
institute legal proceedings in the People's Court.
agriculture and forestry of the People's Governments above county level and
of other relevant departments abuses his power, neglects his duty, engages in
any malpractice for private gain, or extorts or receives bribes, he shall be
subjected to criminal liability in accordance with the law if he is guilty of
a crime; or he shall be punished with disciplinary sanctions in accordance
with the law if he is not guilty of a crime.
CHAPTER VII SUPPLEMENTARY PROVISIOINS
flexible provision on the conditions of novelty for the plant genera or
species first included in the list of protected plant genera and species
before the entry into force of these Regulations or for ones newly included
in the list after the entry into force of these Regulations.
1997.
URL: http://www.asianlii.org/cn/legis/cen/laws/rotponvop564