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REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF PLANTS

2017-4-26 22:59| Announcer: admin

REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF PLANTS

 

Chapter I GENERAL PROVISIONS

 

  Article 1 These Regulations are enacted to protect the rights in new varieties of plantsto encourage the breeding and use of new varieties of plantsand to promote the development of agriculture and forestry.

 

  Article 2 The new variety of plant referred to in these Regulationsmeans a cultivated varietyor a developed one based on a discovered wild plantwhich possesses noveltydistinctnessuniformity and stabilityand which is designated by an adequate denomination.

 

  Article 3 The administrative departments of agriculture and forestry under the State Councilhereinafter referred generally to as the examining and approving authorities”) are jointly responsibleaccording to the division of their responsibilitiesfor the receipt and examination of application for rights in new varieties of plantshereinafter 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 interestsand is of great value for usehe or it shall be rewarded by the People's Governments above county level or the relevant departments under them.

 

  Article 5 The productionsale and dissemination of a new variety for 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

 

  Article 6 The entity which or the person who has accomplished the breeding enjoys an exclusive right on his or its protected variety. Except otherwise provided in these Regulationsno other entities or persons shallwithout 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 varietyor use repeatedly for commercial purposes the propagating material of the said protected variety in the production of the propagating material of another variety.

 

  Article 7 For service breeding accomplished by any person in execution of the tasks of the entity to which he belongsor mainly by using the facilities of that entitythe right to apply for a variety right shall belong to the entity in questionfor non-service breedingthe right to apply for such a variety right shall belong to the person accomplishing the breeding. Upon approval of the applicationthe variety right shall belong to the applicant.

 

  For commissioned breeding or jointly conducted breedingthe ownership of the variety right shall be agreed upon by the parties concerned in a contractlacking of such a contractthe variety right shall belong to the entity which or person who commissioned to conduct or jointly conducted the breeding.

 

  Article 8 One new variety shall be granted only one set of variety 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 firstin the case of simultaneous applicationsthe variety right shall be granted to the person who has first accomplished the breeding.

 

  Article 9 The right to apply for a variety right and the variety right in respect of a new variety may be assigned according to the law.

 

  Any assignmentby a Chinese entity or personof the right to apply for a variety right or the variety right of the new variety bred in Chinato a foreignermust by approved by the examining and approving authorities.

 

  Any assignment within Chinaby a state-owned entityof the right to apply for variety right or of the variety rightmust be submitted in the light of the relevant national provisions for approval by the competent administrative departments concerned. 

 

  Article 10 Without prejudice to other rights of the variety right owner under these Regulationsthe exploitation of the protected variety may not require authorization fromor payment of royalties tothe variety right owner for the following purposes

 

  (aexploitation of the protected variety for breeding and other scientific research activities

 

  (bthe use by farmers for propagating purposeson their own holdingsof the propagating material of the protected variety which they have obtained by planting on their own holdings.

 

  Article 11 The examining and approving authorities mayin the national interests or the public interestsmake decision to grant compulsory licenses to exploit new varieties of plantswhich shall be registered and announced.

 

  The entity which or the person who is granted a compulsory license for exploitation shall pay to the variety right owner a reasonable exploitation feethe amount of which shall be fixed by both parties in consultation. Where the parties fail to reach an agreementthe examining and approving authorities shall adjudicate.

 

  Where the variety right owner is not satisfied with the decision to grant a compulsory license for exploitation or is not satisfied with the adjudication regarding the fee payable for exploitationhe or it maywithin 3 months from the date of receiving the notificationinstitute legal proceedings in the People's Court.

 

  Article 12 Regardless of whether or not the term of protection of the protected variety has expiredthe 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

 

  Article 13 The new variety for which a variety right has been applied 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.

 

  Article 14 Any variety for which a variety right may be granted shall possess novelty. Novelty means thatat the date of filing of the application for a variety rightthe propagating material of the new variety has not been soldor with the authorization of the breederwithin the territory of Chinaearlier than 1 year before that datein a territory other than Chinaearlier than 4 years or in the case of vinesforest treesfruit trees and ornamental plantsearlier than 6 years.

 

  Article 15 Any variety for which a variety right may be granted shall possess distinctness. Distinctness means thatthe 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.

 

  Article 16 Any variety for which a variety right may be granted shall 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 propagationsubject to variation that may be expected from the particular features of its propagation.

 

  Article 17 Any variety for which variety right may be granted shall 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.

 

  Article 18 Any variety for which variety right may be granted shall have an adequate denominationwhich shall be distinguish able from that for any other known variety of the same or similar plant genera or species. The denominationafter its registrationshall be the generic designation of the new variety in question.

 

  The following shall be avoided in the selection of a denomination for a new variety

 

  (athose consisting of only numbers

 

  (bthose violating social morals

 

  (cthose that are liable to mislead or to cause confusion concerning the features or characteristics of the new varietyor identity of the breeder.

 

  Chapter IV APPLICATION FOR VARIETY RIGHTS AND RECEIPT THEREOF

 

  Article 19 Where any Chinese entity or person applies for a variety righthe or it may file an application with the examination and approving authorities directly or through an agency commissioned for the purpose.

 

  Where the new variety for which a Chinese entity and person applies for a variety right involves security or other vital interests of the state and therefore requires to be kept confidentialit shall be dealt with in accordance with the relevant prescriptions of the state.

 

  Article 20 Where any foreigner foreign enterprise or any other foreign institution files an application for a variety right in Chinathe 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 Chinaor in accordance with any international convention to which both countries are partyor on the basis of the principle of reciprocity.

 

  Article 21 For the purpose of applying for a variety rightan applicationspecification and photographs of the variety conforming to the prescribed forms 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 application documents shall be the date of filing. If the application is sent by mailthe date of mailing indicated by the postmark shall be the date of filing.

 

  Article 23 Wherewithin 12 months from the date on which any applicant has first filed in a foreign country an application for a variety rightthe said applicant files an application for a variety right in China for the same new varietyhe or it mayin accordance with any agreement concluded between the said foreign country and the People's of Republic of Chinaor in accordance with any international treaty to which both countries are partyor on basis of the principle of mutual recognition of the right of priorityenjoy a right of priority.

 

  Any applicant who claims the right of priority shall make a written statement when the application is filedand submitwithin 3 monthsa copy of the variety right application that was first filedas confirmed by the original receiving authorityif the applicant fails to make the written statement or fails to submit a copy of the application according to the provisions of these Regulationsthe claim to the right of priority shall be deemed not to have been made.

 

  Article 24 Where the variety right application conforms to Article 21 of these Regulationsthe examining and approving authorities shall accept itestablish the date of filingassign a filing number and serve a notice on the applicant within 1 month from the receipt of the application to pay an application fee.

 

  Where the variety right application dose notor after amendment still does notconform to Article 21 of the Regulationsthe 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 right application at any time before the variety right is granted.

 

  Article 26 Any variety right applicationfiled by a Chinese entity or person with a foreign county for a new variety bed in Chinashall be registered before the examining and approving authorities.

 

  Chapter V EXAMINATION AND APPROVAL OF VARIETY RIGHTS

 

  Article 27 Upon payment of the application feethe examining and approving authorities shall carry out a preliminary examination on the variety right application of the following items

 

  (awhether it is under the plant genera or species included in the list of protected plant genera or species

 

  (bwhether it conforms to the provisions of Article 20 of these Regulations

 

  (cwhether it conforms to the provisions on novelty

 

  (dwhether the denomination of the new variety is adequate.

 

  Article 28 The examining and approving authorities shall complete the 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 examinationthe examination and approving authorities shall have it announced and serve a notice on the applicant to pay the examination fee within 3 months.

 

  where the variety tight application is found unacceptable on preliminary examinationthe examining and approving authorities shall invite the applicant to state his observations or make amendmentswhere an applicant fails to respond within the time limit or the application is still unacceptable after amendmentthe application shall be refused.

 

  Article 29 After the applicant has paid the prescribed examination feethe examining and approving authorities shall carry out a substantive examination on the distinctnessuniformity and stability of the variety right application.

 

  Where the applicant has not paid the prescribed examination feethe variety rights application shall be deemed to have been withdrawn.

 

  Article 30 The examining and approving authorities shall conduct the substantive examination the basis of application documents and other relevant written information. Where they deem it necessitythe 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.

 

  For the purposes of examinationthe applicant shallat the request of the examining and approving authoritiesfurnish necessary information and the propagating material of the variety in question.

 

  Article 31 Where the variety right application is found to be in conformity with the provisions of these Regulationsthe examining and approving authorities shall make a decision to grant the variety rightissue the variety right titleand have it registered and announced.

 

  Whereafter substantive examinationthe variety right application is found not to be in conformity with the provisions of these Regulationsthe examining and approving authorities shall refuse the application and notify the applicant accordingly.

 

  Article 32 The examining and approving authorities shall setup Variety Right Re-examination Boards.

 

  Where any applicant is not satisfied with the decision of the examining and approving authorities refusing the variety right applicationthat applicant maywithin 3 months from the date of receiving the notificationrequest the Variety Right Re-examination Board to carry out a re-examination. The Variety Right Re-examination Board shallwithin 6 months from the date of receiving the request for re-examinationmake a decision and notify the applicant accordingly.

 

  Where any applicant is not satisfied with the decision of the Variety Right Re-examination Boardthat applicant maywithin 15 days from the date of receiving the notificationinstitute legal proceedings in the People's Court.

 

  Article 33 After the variety right has been grantedany entity which or person whoduring 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 rightshad produced or sold the propagating material of the variety in question for commercial purposes without his authorization of the variety right ownerthe variety right owner is entitled to claim compensation.

 

  Chapter VI TERMTERMINATION AND NULLITY OF VARIETY RIGHTS

 

  Article 34 The term of protection of a variety rightcounted from the date of grant thereofshall be 20 years for vinesforest treesfruit trees and ornamental plants and 15 years for other plants.

 

  Article 35 The variety right owner shall pay an annual fee from the year in which the variety right is grantedand shall furnish propagating material of the protected variety for the purposes of testing as required by the examining and approving authorities.

 

  Article 36 The variety right shall be terminated prior to its expiration in any of the following cases

 

  (awhere the variety right owner makes a written statement renouncing his or its variety right

 

  (bwhere the variety right owner has not paid the annual fee as prescribed

 

  (cwhere the variety right owner has not furnishedin the manner required by the examining and approving authoritiessuch propagating material of the protected variety necessary for testing

 

  (dwhereon testingthe protected variety no longer conforms to the features and characteristics that existed at the time of the grant of the variety right.

 

  The termination of the variety right shall be registered and announced by the examining and approving authorities.

 

  Article 37 From the date on which the examining and approving authorities announce the grant of any variety rightthe Variety Right Re-examination Board mayex officio or on the basis of a written request made by any entity or persondeclare the variety right null and voidwhen the variety is not in conformity with the provisions of Articles 141516 and 17 of these Regulationsor 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 authoritiesand shall be notified to the parties concerned.

 

  Where any party is not satisfied with the decision of the Variety Right Re-examination Boardhe or it maywithin 3 months from the date of receiving such notification institute legal proceedings in the People's Court.

 

  Article 38 Any variety right that has been declared null and void shall be deemed non-existent from the outset.

 

  The decision of nullity of a variety right shall have no retroactive effect on any judgment or order on variety right infringement pronounced and enforced by the People's Courtor on any decision on variety right infringement made and enforced by the administrative departments of agriculture and forestry of the People' Governments above provincial levelor on any executed license contract for exploitation of a new variety or any executed contract of assignment of a variety right. Howeverany damage caused to any other person in bad faith on the part of the variety right owner shall be equitably compensated.

 

  Ifpursuant to the provisions of the preceding paragraphno repayment of the fees for the exploitation of the new variety or of the price for the assignment of the variety rightis made by the variety right owner or the assignor of the variety right to the licensee or the assigneewhich is obviously contrary to the principle of equitythe 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.

 

  Article 39 Where the propagating material of the protected variety is produced or sold for commercial purposes without the authorization of the variety right ownerthe variety right owner or the party having an interest therein mayrequest the administrative departments of agriculture and forestry of the People's Governments above provincial level to handle it in accordance with their respective competenceor directly institute legal proceedings in the People's Court.

 

  The administrative departments of agriculture and forestry of the people's Governments above provincial level mayaccording to their respective competence and based on the principle of free will of the partiesmediate the compensation of damages caused by the infringement. Where accord has been reached through mediationit should be executed by the parties concernedwhere no accord has been reached through mediationthe variety right owner or the party having an interest therein may institute legal proceedings in the People's Court according to civil action procedures.

 

  In handling cases of variety right infringements in accordance with their respective competencethe administrative departments of agriculture and forestry of the People's Governments above provincial level mayfor the purposes of safeguarding the public interestsorder the in fringer to stop the infringing actconfiscate the unlawful earnings and impose a fine not exceeding five times of the unlawful earnings.

 

  Article 40 Where any variety counterfeits as a protected varietythe administrative departments of agriculture and forestry of the People's Governments above county level shall order the party concerned to stop the counterfeiting actconfiscate the unlawful earnings and the propagating material of the varietyand impose a fine at least one time but not exceeding five times of the unlawful earningswhere the circumstances of the case are so serious as to constitute a crimethe party concerned shall be subjected to criminal liability in accordance with the law.

 

  Article 41 The administrative departments of agriculture and forestry of the People's Governments above provincial level in handling cases concerning variety right infringements in accordance with their respective competenceand 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 competencemayas necessaryseal up or detain the propagating material of the variety relevant to the caseshave access tomake copies of and seal up contractsaccount books and other relevant documents related to the cases.

 

  Article 42 Where the protected variety is sold without using its registered denominationthe administrative departments of agriculture and forestry of the People's Governments above county level shallin accordance with their respective competenceorder a correction within a specified periodand may impose a fine not exceeding 1000 Yuan.

 

  Article 43 Where disputes arises as to the right to apply for a variety right and the ownership of the variety rightthe parties concerned may institute legal proceedings in the People's Court.

 

  Article 44 Where any staff member of the administrative departments of agriculture and forestry of the People's Governments above county level and of other relevant departments abuses his powerneglects his dutyengages in any malpractice for private gainor extorts or receives bribeshe shall be subjected to criminal liability in accordance with the law if he is guilty of a crimeor he shall be punished with disciplinary sanctions in accordance with the law if he is not guilty of a crime.

 

  Chapter VII SUPPLEMENTARY PROVISIONS

 

  Article 45 The examining and approving authorities may provide for 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.

 

  Article 46 These Regulations shall enter into force as from October 11997.

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