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CHAPTER I
GENERAL PROVISIONS
Article 1
These
Regulations are formulated 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 plant
variety referred to in these Regulations means a cultivated plant
variety, or a developed one based on a discovered wild plant, which is
new, distinct, uniform and stable, and whose denomination is adequately
designated.
Article 3
The
administrative departments of agriculture and forestry under the State
Council (both referred to hereinafter as the “examining and approving
authorities”)are jointly responsible, according to the division of their
job responsibilities, for the receipt and examination of applications for
rights in new varieties of plants, and for the grant of rights in new
varieties of plants (hereinafter referred to as “variety rights”)in
respect of those new varieties of plants that conform to the provisions
of these Regulations.
Article 4
The people’s
governments at county level or above or other relevant departments shall
reward the entity which or the person who has accomplished the breeding
of a new plant variety that has a bearing on the national or the public
interest , and is of great value for use .
Article 5
The production
,sale and dissemination of a new plant variety in respect of which
variety rights have been granted(hereinafter referred to as the
“protected variety”)is subject to review and approval under the
provisions of relevant national laws and regulations on seeds.
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CHAPTER II
CONTENT AND OWNERSHIP OF VARIETY RIGHTS
Article 6
The entity
which or the person who has accomplished the breeding has an exclusive
right in their protected variety. Except otherwise provided in these
Regulations, no other entity or person shall, without the consent of the
holder of the variety rights (hereinafter referred to as the “variety
rights holder” ), produce or sell for commercial purposes the propagating
material of the said protected variety, or use for commercial purposes
the propagating material of the protected variety in a repeated manner in
the production of the propagating material of another variety.
Article 7
In the case of
job-related breeding accomplished by any person in undertaking tasks for
the entity to which he belongs, or primarily by using the facilities of
that entity, the right to file an application for variety rights in
respect of the new plant variety shall belong to the entity in question;
for breeding that is not job-related, the right to file such an
application shall belong to the person accomplishing the breeding. Upon
approval of the application, the variety rights shall belong to the
applicant.
For commissioned
breeding or jointly – conducted breeding, the ownership of the variety
rights shall be agreed upon by the parties in a contract; failing such an
event, the variety rights shall belong to the entity or person
commissioned to conduct or jointly conducting the breeding.
Article 8
One new plant
variety shall be granted only one set of variety rights. If two or more
applicants apply separately for variety rights in respect of the same new
plant variety, the variety rights shall be granted to the person who
applies first; in the case of a simultaneous application, the variety
rights shall be granted to the person who has first accomplished the
breeding of the new plant variety concerned.
Article 9
The right to
file an application for variety rights in respect of a new plant variety
and the variety rights may be assigned in accordance with the law.
If a Chinese
entity or person wishes to assign to a foreigner the right to file an
application or the variety rights in respect of a new plant variety bred
in China, such assignment shall be approved by the examining and
approving authorities.
In the case of
an assignment within China
of the right to file an application or of the variety rights by a
State-owned entity, it shall be submitted in accordance with the relevant
national regulations for approval by the competent administrative
departments concerned.
The parties
involved in the assignment of the right to file an application or of the
variety rights shall conclude a written contract, and shall register the
assignment before the examining and approving authorities, which in turn
shall published the assignment.
Article 10
Without
prejudice to other rights of the variety rights holder under these
Regulations, the exploitation of the protected variety shall not require
authorization from, or payment of royalties to, the variety rights holder
for the following purposes :
(i) exploitation of the protected variety for breeding and other
scientific research activities;
(ii) the use for propagating purposes by farmers, on their own holdings,
of the propagating material of the protected variety harvested on their
own holdings.
Article 11
The examining
and approving authorities may, in the national or the public interest,
decide to grant a compulsory license to exploit new plant varieties,
which should be subsequently registered and published.
The entity
which or the person who is granted a compulsory license for exploitation
shall pay the variety rights holder a reasonable exploitation fee, the
amount of which shall be fixed by consultation between the two parties.
Where the parties fail to reach an agreement, the examining and approving
authorities shall adjudicate.
Where the
variety rights holder is not satisfied with the decision to grant a
compulsory license or is not satisfied with the adjudication regarding
the fee payable for exploitation, he or it may, within three months from
the date of receiving the notification, file a suit with the People’s
Court.
Article 12
Regardless of
whether or not the term of the protection of the protected variety has
expired, the denomination of the protected variety as used in its
registration must be used for sales thereof.
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CHAPTER III
CONDITIONS FOR THE GRANT OF VARIETY RIGHTS
Article 13
The new plant
variety in respect of which variety rights have been applied for shall be
part of the botanical genera and species included in the national list of
protected plant varieties. This list of protected plant varieties shall
be determined and published by the examining and approving authorities.
Article 14
Any plant
variety in respect of which variety rights are granted shall have the
characteristic of novelty. Novelty means `that the propagating material
of the new plant variety in respect of which variety rights are applied
for has not been sold prior to the filing date of the application, or has
not been for sale, with the consent of the breeder, for more than one
year within the territory of China; the propagating material of vines, forest
trees, fruit trees and ornamental plants must not have been for sale for
more than six years, or the propagating material of other plant varieties
for more than four years, in a foreign territory.
Article 15
Any plant
variety in respect of which variety rights are granted shall have the
characteristic of distinctness. Distinctness means that the plant variety
in respect of which variety rights are applied for must noticeably
distinguish it from any other plant variety known prior to the filing of
the application.
Article 16
Any plant
variety in respect of which variety rights are granted shall have the
characteristic of uniformity. Uniformity means that the plant variety in
respect of which variety rights are applied for is uniform, subject to
the variation that may be expected, in its relevant features or
characteristics after propagation.
Article 17
Any plant
variety in respect of which variety rights are granted shall have the
characteristic of stability. Stability means that the plant variety in respect
of which variety rights are 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 plant
variety in respect of which variety rights are granted shall have an
adequate denomination, which shall be distinguishable from that for any
other known plant variety of the same or similar botanical genera or
species. The denomination, after its registration, shall be the generic
designation of the new plant variety in question.
The following
shall be avoided in the selection of a denomination for a new variety:
(a)
those consisting of only numbers;
(b)
those violating social morals;
(c)
those that are liable to mislead as to the features or characteristics of
the new plant variety, or the identity of the breeder.
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CHAPTER IV
APPLICATION FOR VARIETY RIGHTSAND RECEIPT THEREOF
Article 19
Where Chinese
entities and persons apply for variety rights, they may file an
application with the examining and approving authorities directly or
through a representative agency commissioned for the purpose.
Where the new
plant variety in respect of which Chinese entities and persons apply for
variety rights involves national security or major interests and
therefore needs to be kept confidential, it shall be dealt with in
accordance with the relevant national regulations.
Article 20
If a
foreigner, a foreign enterprise or any other foreign institution files an
application for variety rights in China, the application shall be handled
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 any international convention to which both
countries are party, or on the basis of the principle of reciprocity.
Article 21
For the
purposes of applying for variety rights, an application and specification
conforming to the prescribed forms as well as a photograph of the variety
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 variety rights
application documents shall be the filing date of the application. Where
the application documents are filed by mail, the postmark date shall be
the filing date of the application.
Article 23
Where, within
12 months from the date on which any applicant has first filed an
application for variety rights in a foreign country, the said applicant
files an application for variety rights in China in respect of the same
new plant variety, he or it may, in accordance with any agreement
concluded between the said foreign country and the People’ s Republic of
China or any international treaty to which both countries are party, or
on the basis of the principle of mutual recognition of the right of
priority, enjoy a right of priority.
Any applicant
who claims the right of priority shall make a written statement when the
application is filed, and shall submit, within three months, a copy of
the variety rights application documents that were 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 variety
rights application documents under the provisions of these Regulations,
the claim to the right of priority shall be deemed not to have been made.
Article 24
Where the
variety rights application conforms to Article 21 of the Regulations, the
examining and approving authorities shall accept it, assign the filing
date and a filing number and serve notice on the applicant within one
month from the receipt of the application to pay an application fee.
Where the
variety rights application does not, or after amendment still does not ,
conform to Article 21 of the Regulations, the 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 rights application at any time
before the variety rights are granted.
Article 26
Any
application filed by a Chinese entity or person with a foreign country
for variety rights in respect of a new plant variety that has been bred
in China shall be registered before the examining and approving
authorities.
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CHAPTER V
EXAMINATION AND APPROVAL OF VARIETY RIGHTS
Article 27
Upon payment
of the application fee, the examining and approving authorities shall
carry out a preliminary examination on the variety rights application to
determine the following:
(a) whether it
is part of the botanical genera or species included in the list of
protected plant varieties;
(b) whether it
conforms to the provisions of Article 20 of the Regulations;
(c) whether it
conforms to the provisions on novelty;
(d) Whether
the denomination of the new plant variety is adequate.
Article 28
The examining and
approving authorities shall complete the preliminary examination within
six months after the variety rights application is formally received.
Where the variety rights application is found acceptable on preliminary
examination, the examining and approving authorities shall have it
published and serve notice on the applicant to pay the examination fee
within three months.
Where the
variety rights application is found unacceptable on preliminary
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.
Article 29
After the
applicant has paid the prescribed examination fee, the examining and
approving authorities shall carry out a substantive examination of the
distinctness, uniformity and stability of the variety in respect of which
variety rights are applied for.
Where the
applicant has not paid the prescribed examination fee, the variety rights
application shall be deemed to have been withdrawn.
Article 30
The examining
and approving authorities shall conduct the substantive examination on
the basis of application documents and other relevant written
information. Where they deem it necessary, the examining and approving
authorities may entrust a designated testing institution with undertaking
tests or with inspecting the results of growing tests or other trials
that have already been carried out.
For the
purposes of examination, the applicant shall at the request of the
examining and approving authorities furnish necessary information and the
propagating material of the new plant variety in question.
Article 31
Where the
variety rights application is found to be in conformity with the
provisions of these Regulations on substantive examination, the examining
and approving authorities shall take a decision to grant the variety
rights, issue the new variety rights title, and have it registered and published.
Where the
variety rights application is found not to be in conformity with the
provisions of these Regulations on substantive examination, the examining
and approving authorities shall refuse the application and notify the
applicant accordingly.
Article 32
The examining
and approving authorities shall set up a Re-Examination Board for New
Varieties of Plants.
Where any
applicant is not satisfied with the decision of the examining and
approving authorities refusing a variety rights application, that
applicant may, within three months from the date of receiving the
notification, request the Re-Examination Board for New Varieties of
Plants to carry out a re-examination. The Re-Examination Board for New
Varieties of Plants shall, within six months from the date of receiving
the request for re-examination, take a decision and notify the applicant
accordingly.
Where any
applicant is not satisfied with the re-examination decision of the
Re-Examination Board for New Varieties of Plants, that applicant may,
within 15 days from the date of receiving the notification, file a suit
with the people’ s Court.
Article 33
After the
variety rights have been granted, for the period beginning on the date on
which an acceptable application is published on preliminary examination
and ending on the date of grant of variety rights, the variety rights
holder is entitled to claim compensation from an entity which, and a
person who, has produced or sold the propagating material of the
protected variety in question for commercial purposes without his
consent.
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CHAPTER VI
TERM,TERMINATION AND INVALIDITY
Article 34
The term of
protection of variety rights, counted from the date of grant thereof,
shall be 20 years for vines, forest trees, fruit trees and ornamental
plants and 15 years for other plants.
Article 35
The variety
rights holder shall pay annual fees from the year in which the variety
rights are granted, and shall furnish propagating material of the protected
variety for the purposes of control as required by the examining and
approving authorities.
Article 36
Variety rights
shall be terminated prior to the expiration of the term thereof in any of
the following cases:
(a) where the
variety rights holder makes a written statement renouncing his variety
right;
(b) where the
variety rights holder has not paid the annual fees as prescribed;
(c) where the
variety rights holder has not furnished, in the manner required by the
examining and approving authorities, such propagating material of the
protected variety necessary for control;
(d) where, on
control, the protected variety no longer conforms to the features and
characteristics that existed when the variety rights were granted.
The
termination of the variety rights shall be registered and published by
the examining and approving authorities.
Article 37
From the date
on which the examining and approving authorities publish the grant of
variety rights, the Re-Examination Board for New Varieties of Plants may,
ex officio or on the basis of a written request made by any entity
or person, revoke the variety rights in any variety that 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 to revoke variety rights and the decision to change the
denomination shall be registered and published by the examining and
approving authorities, and shall be communicated to the parties
concerned.
Where any
party is not satisfied with the decision of the Re-Examination Board for
New Varieties of Plants, he or it may, within three months from the date
of receiving such communication, file a suit with the People’ s Court.
Article 38
The variety
rights that have been revoked shall be deemed non-existent from the
outset.
The decision
to revoke variety rights shall have no retroactive effect on any judgment
or ruling pronounced and enforced by the People’ s Court concerning the
infringement of a new plant variety, or on any decision made and enforced
by the administrative departments of agriculture and forestry of the
People’ s Governments at provincial level or above concerning the
infringement of a new plant variety, or on any executed license contract
for exploitation of a new plant variety or any executed contract of
assignment of the rights in a new plant variety. However, any damage
caused to any other person due to bad faith on the part of the variety
rights holder shall be equitably compensated.
If no
repayment of the fees for the exploitation of the new plant variety or of
the price for the assignment of the variety rights, pursuant to the
provisions of the preceding paragraph, is made by the variety rights
holder or the assignor of the variety rights to the licensee or the
assignee, and if this is obviously contrary to the principle of equity,
the variety rights holder or the assignor of the variety rights shall
repay the whole or part of the fees for the exploitation of the variety
or of the price for assignment of the variety rights to the licensee or
the assignee.
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CHAPTER VII
PENALTY PROVISIONS
Article 39
Where the
propagating material of the protected variety is produced or sold for
commercial purposes without the consent of the variety rights holder, the
variety rights holder or the party having an interest therein may request
the administrative departments of agriculture and forestry of the people’
s Governments at provincial level or above to handle it in accordance
with their respective competence, or directly file a suit with the
people’ s Court.
The
administrative departments of agriculture and forestry of the People’ s
Governments at provincial level or above 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 rights holder or the party having an interest
therein may file a suit with the People’ s Court according to civil
action procedures.
In handling
cases of infringement of variety rights in accordance with their
respective competence, the administrative departments of agriculture and
forestry of the People’s Governments at provincial level or above my, for
the purposes of safeguarding the public interest of the society, order the
infringer to stop the infringing act, confiscate the unlawful earnings
and punish him with a fine five times more than the unlawful earnings.
Article 40
Where any new
plant variety is counterfeited, the administrative departments of
agriculture and forestry of the People’s Governments at county level or
above shall order the party concerned to stop the counterfeiting act,
confiscate the unlawful earnings and the propagating material of the
plant variety, and punish him with a fine at least one but not exceeding
five times more than 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 investigation in accordance with
the law.
Article 41
Both the administrative
departments of agriculture and forestry the People’ s Governments at
provincial level or above in handling cases concerning infringement of
variety rights in accordance with their respective competence, and the
administrative departments of agriculture and forestry of the People’ s
Governments at county level or above in handling cases concerning
counterfeited variety rights in accordance with their respective
competence, may, as appropriate, seal up or detain the propagating
material of the plant 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.
Article 42
Where the
protected variety is sold without using the denomination as used in its
registration, the administrative departments of agriculture and forestry
of the People’s Governments at county level or above shall, in accordance
with their respective competence, order a correction within a specified
time limit, and may impose a fine not exceeding 1,000 yuan.
Article 43
Where disputes
arise as to the right to apply for a new variety of plant and the
ownership of the variety rights, the parties concerned may file a suit
with the People’s Court.
Article 44
Where any
staff member of the administrative departments of agriculture and
forestry of the People’s Governments at county level or above and of
other departments abuses his power, neglects his duty, engages in any
malpractice for private gain, or extorts or receives bribes, that staff
member shall be subjected to criminal liability investigation in
accordance with the law if the case constitutes a crime; or he shall be
punished with administrative sanctions in accordance with the law if it
does not constitute a crime.
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CHAPTER VIII
SUPPLEMENTARY PROVISIONS
Article 45
The examining
and approving authorities may provide for flexible provisions on novelty
requirement for the genera or species first included in the list of
protected plant varieties before the entry into force of these
Regulations and that for the genera or species included in the list of
protected plant varieties after the entry into force of the Regulations.
Article 46
These
Regulations shall enter into force as from October 1, 1997.
(In case of
discrepancy, the original version in Chinese shall prevail.)
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