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China enhances the protection of plant variety rights

A new judicial interpretation issued by China’s Supreme Court took effect on 7 July 2021. The interpretation clarifies the application of the law in disputes over the infringement of plant variety rights (PVRs).

China’s PVR legislation is still at a relatively preliminary stage, but China accounts for one-third of plant variety applications that were filed worldwide in 2019, so it should come as no surprise that China is focused on upgrading its PVR protection.

The interpretation is intended to expand the scope of protection for PVRs in China, improve the speed, effectiveness, and consistency of judicial protection, and make it easier for PVR holders to establish infringement and damage. Key provisions include:

  • Clarifying that the act of planting propagating material may constitute an infringing act. This is a contentious issue in other jurisdictions too.
  • Providing that expressing an intention to sell through advertising and exhibiting propagating material may constitute an infringing act.
  • Contributory infringement for those who knowingly provide services to infringers including acquisition, storage, transportation, processing, and provision of certification materials.
  • The alleged infringer is obliged to provide relevant account books and materials relating to the infringement and preserve evidence. If the infringer fails to provide such information, gives false accounting, or destroys evidence, or hinders establishing proof of infringement, then the court may calculate compensation based on the PVR owner’s claims and evidence.

The interpretation also addresses the issue of the “farmers’ exemption” under the current law which allows farmers to propagate protected plant varieties for their own use without seeking permission of paying royalties to the PVR holder. The interpretation provides that the exemption only applies to reproduction by farmers on their own land. There is some concern that the interpretation does not specifically exclude professional farmers’ cooperatives, rural collectives or larger family farms, but it does provide that when considering whether conduct outside the specified circumstances can claim the exemption, the court will need to look at all factors including the infringer’s purpose, the scale of the operation and whether or not a profit has been made.

The development of new plant varieties is essential to achieving food security and agricultural sustainability. However, breeding new varieties requires a substantial investment of skill, labor, material resources, money, and time, which must be protected. This interpretation, and recent cases including the Supreme Court’s decision in the Pomelo case and the eagerly awaited revision to the Regulations for the Protection of New Varieties of Plants, are an indication that China is making important progress in this area.

Read the complete article at www.lexology.com.

 


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