LAWS AND REGULATIONS

(Promulgated by Decree No. 213 of The State Council of the People's Republic of China on March 20, 1997, and amended in accordance with the Decision of The State Council on Amending the Regulations of the People's Republic of China on the Protection of New Varieties of Plants on January 31, 2013)

Chapter I General provisions

Article 1 These Regulations are formulated for the purpose of protecting the right to new varieties of plants, encouraging the cultivation and use of new varieties of plants, and promoting the development of agriculture and forestry.

Article 2 The term "new plant varieties" as mentioned in these Regulations refers to plant varieties that have been artificially cultivated or developed from wild plants discovered and have novelty, specificity, consistency and stability and are appropriately named.

Article 3 The administrative departments of agriculture and forestry under The State Council (hereinafter referred to as the examination and approval authorities) shall, in accordance with the division of duties, be jointly responsible for the acceptance and examination of applications for new plant variety rights and grant new plant variety rights (hereinafter referred to as variety rights) to new plant varieties conforming to the provisions of these Regulations.

Article 4 Units or individuals that have completed the breeding of new varieties of plants that are related to the interests of the State or the public and have great application value shall be rewarded by the people's governments at or above the county level or by relevant departments. 

Article 5 The production, sale and promotion of new varieties of plants that have been granted variety rights (hereinafter referred to as authorized varieties) shall be examined and approved in accordance with the provisions of State laws and regulations on seeds. 

The second chapter is the content and attribution of the variety right 

Article 6 The unit or individual that has completed breeding shall have the exclusive right to the authorized varieties. Without the permission of the owner of the variety right (hereinafter referred to as the variety right owner), no unit or individual shall produce or sell the breeding materials of the authorized variety for commercial purposes, and shall not reuse the breeding materials of the authorized variety for commercial purposes to produce the breeding materials of another variety; Except as otherwise provided for in these Regulations. 

Article 7 The right to apply for new varieties of plants shall belong to the unit that performs the tasks of the unit or mainly uses the material conditions of the unit for job breeding; For non-job breeding, the right to apply for new plant varieties belongs to the individual who has completed the breeding. After the application is approved, the variety right belongs to the applicant. 

For commissioned breeding or cooperative breeding, the ownership of the variety right shall be agreed upon by the parties in the contract; Where there is no contract, the variety right belongs to the unit or individual entrusted to complete or jointly complete the breeding. 

Article 8 A new variety of plant may be granted only one variety right. Where two or more applicants separately apply for variety rights in respect of the same new plant variety, the variety rights shall be granted to the person who applied first; If the application is made at the same time, the variety right is granted to the person who first completes the breeding of the new variety of the plant. 

Article 9 The right to apply for new varieties of plants and the right to varieties may be transferred according to law. 

Where a Chinese entity or individual transfers the right of application or the right of variety to a foreigner in respect of a new variety of plant cultivated in China, it shall be subject to the approval of the examination and approval authority. 

Where a state-owned unit transfers the right of application or the right of variety in the country, it shall be reported to the relevant competent administrative department for approval in accordance with the relevant provisions of the State. 

Where the right to apply or the right to a variety is transferred, the parties shall conclude a written contract and register it with the examining and approving authority, which shall make a public announcement. 

Article 10 Under the following circumstances, the authorized varieties may be used without the permission of the variety owner and without payment of royalties, but other rights enjoyed by the variety owner in accordance with these Regulations shall not be infringed: 

(1) Using authorized varieties for breeding and other scientific research activities; 

(2) Reproduction materials of authorized varieties used by farmers themselves. 

Article 11 In the interests of the state or the public, the examination and approval authority may make a decision to implement the compulsory license for new varieties of plants, and register and announce it. 

A unit or individual that has obtained a compulsory license for exploitation shall pay a reasonable royalty to the owner of the variety right, the amount of which shall be agreed upon by both parties; If the two parties fail to reach an agreement, the examination and approval authority shall make a ruling. 

Where the variety owner is not satisfied with the decision on compulsory license or the ruling on compulsory license fee, he may bring a suit in a people's court within three months from the date of receipt of the notification.

 Article 12 Regardless of the expiration of the term of protection of the authorized variety, the authorized variety shall be sold under its registered name.

Chapter III Conditions for granting variety rights

Article 13 The new varieties of plants for which the variety right is applied shall belong to the genera or species of the plants listed in the State list for the protection of plant varieties. The list of plant varieties protected shall be determined and published by the examination and approval authority. 

Article 14 New varieties of plants for which variety rights are granted shall possess novelty. Novelty means that the breeding materials of the new plant variety for which the variety right is applied have not been sold before the date of application, or the breeding materials of the variety have not been sold in China for more than 1 year with the permission of the breeder; The sales of vines, trees, fruit trees and ornamental tree species breeding materials outside China have not exceeded 6 years, and the sales of other plant species breeding materials have not exceeded 4 years. 

Article 15 New varieties of plants for which variety rights are granted shall have specificity. Specificity means that the new plant variety for which the variety rights are applied should be clearly different from the plant variety known before the filing of the application. 

Article 16 New varieties of plants for which variety rights are granted shall have consistency. Consistency means that the new varieties of plants for which the variety rights are applied have been propagated, and their related characteristics or characteristics are consistent except for foreseeable variations. 

Article 17 New varieties of plants for which variety rights are granted shall possess stability. Stability means that the relevant characteristics or characteristics of new varieties of plants for which variety rights are applied remain unchanged after repeated breeding or at the end of a specific breeding cycle. 

Article 18 New varieties of plants for which variety rights are granted shall have appropriate names and be distinguished from the names of known varieties of the same or similar genera or species of plants. The name is the common name of the new plant variety after registration. 

The following names shall not be used in the naming of varieties: 

(1) consisting solely of numbers; 

(2) violating social morality; 

(3) the characteristics and characteristics of new varieties of plants or the identity of the breeder are liable to cause misunderstanding.

　　Chapter IV Application and acceptance of variety rights

Article 19 Chinese units and individuals applying for variety rights may directly or entrust an agency to file an application with the examination and approval authority. 

Where the new varieties of plants for which Chinese units or individuals apply for variety rights involve national security or major interests and need to be kept secret, they shall be handled in accordance with the relevant provisions of the State. 

Article 20 Foreigners, foreign enterprises or other foreign organizations applying for variety rights in China shall do so in accordance with the agreements concluded between the countries to which they belong and the People's Republic of China or the international treaties to which they are parties, or in accordance with these Regulations on the basis of the principle of reciprocity. 

Article 21 An application for the right to a variety shall be submitted to the examination and approval authorities in accordance with the format requirements of the request, the specification and the photos of the variety. 

Application documents shall be written in Chinese. 

Article 22 The date on which the examination and approval authority receives the application documents for variety right shall be the application date; The application documents are sent by mail, and the date of the postmark is the filing date. 

Article 23 Where, within 12 months from the date when the applicant first filed his application for variety right in a foreign country, he also filed an application in China for variety right in respect of a new variety of plants, he may enjoy the right of priority in accordance with the agreement concluded between that foreign country and the People's Republic of China or the international treaty to which both countries are parties, or in accordance with the principle of mutual recognition of priority rights. 

Where the applicant claims the right of priority, it shall provide a written explanation at the time of application, and submit within three months a copy of the application for variety right that was first filed and confirmed by the original accepting authority; Those who fail to make a written explanation or submit a copy of the application documents in accordance with the provisions of these Regulations shall be deemed not to have claimed priority. 

Article 24 For applications for variety rights that meet the provisions of Article 21 of these Regulations, the examining and approving authority shall accept them, specify the date of application, give the application number, and notify the applicant to pay the application fee within one month from the date of receipt of the application. 

The examination and approval authority shall not accept an application for variety right that does not comply with the provisions of Article 21 of these Regulations or that, after modification, still does not comply with the provisions of Article 21 of these Regulations, and shall notify the applicant. 

Article 25 The applicant may modify or withdraw the application for variety right before the grant of variety right. 

Article 26 Where a Chinese unit or individual applies abroad for the variety right of new varieties of plants cultivated in China, it shall register with the examination and approval authorities.

　　Chapter V Review and approval of variety rights

Article 27 After the applicant has paid the application fee, the examination and approval authority shall conduct a preliminary examination of the following contents of the application for variety right: 

(1) Whether it belongs to the genus or species of plants listed in the list of plant variety protection; 

(2) Whether it complies with the provisions of Article 20 of these Regulations; 

(3) Whether it meets the requirements for novelty; 

(4) Whether the naming of new plant varieties is appropriate. 

Article 28 The examination and approval authority shall complete the preliminary examination within 6 months from the date of accepting the application for variety right. The examination and approval authority shall make a public announcement on the application for variety right that has passed the preliminary examination, and notify the applicant to pay the examination fee within three months. 

For an application for variety right that fails to pass the preliminary examination, the examining and approving authority shall notify the applicant to state his opinions or make amendments within three months; If no reply has been made within the time limit or if the applicant is still unqualified after amendment, the application shall be rejected. 

Article 29 After the applicant has paid the examination fee in accordance with the provisions, the examination and approval authority shall conduct a substantive examination of the specificity, consistency and stability of the application for variety rights. 

Where the applicant fails to pay the examination fee as required, the application for variety rights shall be deemed withdrawn. 

Article 30 The examination and approval authority shall conduct substantive examination mainly on the basis of the application documents and other relevant written materials. When the examination and approval authority deems it necessary, it may entrust a designated testing institution to carry out testing or inspect the results of the planting or other tests already completed. 

The applicant shall, as required by the examination and approval authority, provide the necessary information and propagation materials of the new plant variety. 

Article 31 With regard to applications for variety rights that meet the provisions of these Regulations after substantive examination, the examining and approving authority shall make a decision on granting variety rights, issue certificates of variety rights, register and announce them. 

Where an application for variety right fails to comply with the provisions of these Regulations after substantive examination, the examining and approving authority shall reject it and notify the applicant. 

Article 32 The examination and approval authority shall establish a review committee for new varieties of plants. 

If the applicant is not satisfied with the decision of the examination and approval authority rejecting the application for variety right, he may, within three months from the date of receipt of the notification, request the Review Committee for New Varieties of Plants for review. The Review Committee for New Varieties of Plants shall, within 6 months from the date of receipt of the request for review, make a decision and notify the applicant. 

If the applicant is not satisfied with the decision of the New Variety of Plants Review Committee, he may, within 15 days from the date of receipt of the notification, bring a suit in the people's court. 

Article 33 After the variety right is granted, the variety right holder shall have the right to recover from any unit or individual that produces or sells the breeding materials of the authorized variety for commercial purposes without the permission of the applicant during the period from the date of the announcement of the preliminary examination to the date of the grant of the variety right.

　　Chapter VI Term, Termination and Invalidity

Article 34 The term of protection of variety rights shall, from the date of authorization, be 20 years for vines, trees, fruit trees and ornamental trees, and 15 years for other plants. 

Article 35 The variety owner shall pay the annual fee starting from the year in which the variety right is granted, and provide the breeding materials of the authorized variety for testing as required by the examination and approval authority. 

Article 36 Under any of the following circumstances, the variety right shall terminate before the expiration of its term of protection:

(1) the owner of the variety right renounces the variety right in a written statement;

(2) the variety owner fails to pay the annual fee as required; 

(3) the variety owner fails to provide the breeding materials of the authorized variety required for testing as required by the examination and approval authority; 

(4) after testing, the authorized variety no longer conforms to the characteristics and characteristics of the variety rights granted. 

The termination of the variety right shall be registered and announced by the examination and approval authority. 

Article 37 From the date when the examination and approval authority announces the granting of the variety right, the Plant New Variety Reexamination Commission may, in accordance with its functions and powers or at the written request of any unit or individual, declare the variety right invalid if the provisions of Article 14, 15, 16 and 17 of these Regulations are not met; Those that do not conform to the provisions of Article 18 of these Regulations shall be renamed. The decision to declare the right to a variety invalid or to change its name shall be registered and announced by the examining and approving authority and shall be notified to the parties concerned. 

Those who are not satisfied with the decision of the New Varieties of Plants Review Committee may, within three months from the date of receipt of the notification, bring a suit in the people's court. 

Article 38 The variety right that has been declared invalid shall be deemed to have not existed from the beginning. 

The decision to declare the variety right invalid shall not have retroactive effect on the judgment and ruling of infringement of new varieties of plants made and executed by the people's court before the announcement, the decision of handling infringement of new varieties of plants made and executed by the administrative department of agriculture and forestry of the people's government at or above the provincial level, and the license contract for the implementation of new varieties of plants and the contract for the transfer of new varieties of plants; However, where losses are caused to others due to the malice of the variety owner, reasonable compensation shall be given. 

If, in accordance with the provisions of the preceding paragraph, the variety right owner or the variety right transferor does not return the royalty or the transfer fee to the licensed implemente or the transferee, which obviously violates the principle of fairness, the variety right owner or the variety right transferor shall return all or part of the royalty or the transfer fee to the licensed implemente or the transferee.

　　Chapter VII Penalties

Article 39 Where, without the permission of the holder of the variety right, the holder of the variety right or the interested party produces or sells the reproduction materials of the authorized varieties for commercial purposes, the holder of the variety right or the interested party may request the administrative department of agriculture and forestry of the people's government at or above the provincial level to handle the matter according to their respective functions and powers, or may directly bring a lawsuit to the people's court.

The administrative departments of agriculture and forestry under the people's governments at or above the provincial level may, in accordance with their respective functions and powers and on the principle of the parties' willingness, mediate compensation for damages caused by infringement. If an agreement is reached through mediation, the parties shall perform it; If no agreement is reached through mediation, the variety owner or the interested party may bring a lawsuit in a people's court in accordance with the civil procedure. 

When the administrative departments of agriculture and forestry under the people's governments at or above the provincial level handle the infringement cases of variety right according to their respective functions and powers, in order to safeguard the social and public interests, they may order the infringer to stop the infringement and confiscate the illegal income and plant variety propagation materials; If the value of the goods is more than 50,000 yuan, a fine of not less than one time but not more than five times the value of the goods may be imposed; If there is no value of the goods or the value of the goods is less than 50,000 yuan, according to the seriousness of the circumstances, a fine of less than 250,000 yuan may be imposed.

Article 40 Where the authorized varieties are counterfeited, the administrative departments of agriculture and forestry of the people's governments at or above the county level shall, in accordance with their respective functions and powers, order them to stop the counterfeit acts and confiscate the illegal gains and plant variety propagation materials; If the value of the goods exceeds 50,000 yuan, a fine of not less than one time but not more than five times the value of the goods shall be imposed; If there is no value of the goods or the value of the goods is not more than 50,000 yuan, a fine of not more than 250,000 yuan shall be imposed according to the seriousness of the circumstances; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law. 

Article 41 The administrative departments of agriculture and forestry under the people's governments at or above the provincial level shall, according to their respective functions and powers, investigate and handle cases of infringement of variety rights, and the administrative departments of agriculture and forestry under the people's governments at or above the county level shall, when necessary, seal up or detain the reproduction materials of plant varieties related to the case. To consult, copy or seal up contracts, account books and relevant documents related to the case. 

Article 42 Where authorized varieties are sold without using their registered names, the administrative departments of agriculture and forestry under the people's governments at or above the county level shall, in accordance with their respective functions and powers, order corrections within a time limit and may impose a fine of not more than 1,000 yuan. 

Article 43 Where a dispute arises over the right to apply for a new variety of plants or the ownership of the variety right, the parties may bring a suit in a people's court. 

Article 44 Any staff member of the administrative department of agriculture and forestry or any other relevant department of the people's government at or above the county level who abuses his power, neglects his duty, engages in malpractices for personal gains, or asks for bribes, if the case constitutes a crime, shall be investigated for criminal responsibility according to law; If the case does not constitute a crime, administrative sanctions shall be imposed according to law.

　　Chapter VIII Supplementary Provisions

Article 45 The examination and approval authority may make provisions on the flexibility of the novelty requirements for the first batch of plants listed in the protection list of plant varieties before the implementation of these Regulations and for the plant genera or species newly included in the protection list of plant varieties after the implementation of these Regulations. 

Article 46 These Regulations shall come into force as of October 1, 1997. 

Source: All China Patent Agents Association