On July 5, 2021, the PRC Supreme People’s Court (SPC) released a judicial interpretation, Provisions on the Application of Law on Trials Over Infringement of the Right of Plant Varieties (the SI PV 2021). This SI PV 2021 judicial interpretation has become effective as of July 7, 2021. Although China is generally a civil law country, a judicial interpretation issued by SPC has a significant binding effect over its court system and is essentially a piece of legislation.
China has introduced the protection of new plant varieties since 1997. The SPC previously issued judicial interpretations in the years of 2001 and 2007. However, these earlier judicial interpretations were both silent on a few important issues from a practical perspective. The new SI PV 2021 supplements these earlier judicial interpretations and adds some specifics addressing contributory liability, burden of proof, expert appraisal, punitive damages and related determination, and temporary protection for those new varieties pending registrar’s prolonged examinations.
- The SI PV 2021 confirmed that both asexual propagation and sexual propagation are covered by protection of the new plant varieties right.
- A mere offering for sale itself could be found an infringing act.
- Contributory liability will be found when a defendant, with awareness or constructive knowledge, assists direct infringers during the process of selling, storage, transportation and processing of infringing materials.
- Punitive damages are now officially made available to the right owners.
- The SI PV 2021 shifted the burden of proof from right owners to the alleged offenders in circumstances where (1) the name of an alleged infringing product is same to the name of the protected variety; and (2) the harvested products can also be used as propagating materials (which is seen as a move favorable to owners of flower varieties).
- The SI PV 2021 addressed the expert appraisal opinion issues, and clarified that some governmental authorities of plants and forests can recommend appraisal experts. It also confirmed that molecular markers can form assumption of infringement, unless the alleged offender offers evidence proving that those markers cannot distinguish the protected variety from the alleged infringing plants.
- The “right exhaustion” theory is confirmed by the SI PV 2021 to be applicable to cases where propagating materials have been lawfully sold, unless those sold materials are used to propagate additional propagating materials (instead of using them to produce end products).
- Temporary protection measures are available to applicants who have filed application of registering the plant varieties in China but have yet to be granted right. Namely, right holders claim of damages during the period after the preliminary examination of the variety rights but before grant of the variety rights, may be supported by the PRC courts.
The SI PV 2021 supplemented the judicial interpretation back in 2007 and strengthened breeders’ position. For example, it broadened the definition of “propagating materials” to include end products so long as those plants can also be used as based of propagation. This is especially significant to those varieties being reproduced through asexual propagation means – such as most of fresh-cutting flowers (which are primarily roses).
The SI PV 2021 also borrowed certain rules from the 1991 version of the UPOV Convention (although China is not a contracting party of the UPOV 1991 version and has only approved the text of the 1978 version), such as the right exhaustion doctrine.
The SI PV 2021 resembles a higher level of protection to the right of new plant varieties. Right owners are encouraged to observe this positive development and put resources to launch enforcement actions to educate the market that their rights should be honored.