By: Donnie Dong, Amber Huang & Lucia Li
With the 2025 revision of the Regulations on the Protection of New Varieties of Plants of the People’s Republic of China (hereinafter “the Regulations”) and the increasing commercialization of breeding achievements in China, judicial protection of the plant breeder rights (hereinafter “PBRs”) has witnessed numerous significant developments between 2024 and 2025. This article recaps a few representative PBR cases decided by the Supreme People’s Court of China (“SPC”) during 2024-2025, examining the adjudication standards applied by Chinese judicial authorities to core issues in plant variety-related disputes.
I. TESTS FOR FINDING THE PBR INFRINGEMENT
According to the Regulations and relevant judicial interpretations, PBR holders have the right to demand cessation of infringement and compensation for losses when their rights are violated. To determine whether infringement has occurred, the PRC courts typically evaluate three key dimensions:
- Whether the accused material falls within the scope of PBR protection
Prior to the 2025 revision of the Regulations, courts usually required proof that the accused infringer had traded propagating materials. Following the revision, the scope of protection was expanded to include harvested material with certain reproductive potential that can be used for further propagation.
- Whether the conduct constitutes statutory infringement
Unauthorized acts constitute infringement if they involve production, reproduction and conditioning for the purpose of propagation, offering for sale, selling, importing, exporting, or stocking for the purpose of implementing any of the foregoing acts with respect to a protected plant variety.
- Whether the accused infringing plants are same to the proprietary variety
This requires that the accused sample and the control sample are identical in technical characteristics or morphological features. In judicial practice, right holders typically submit DNA molecular marker testing reports, while accused infringers may request DUS (Distinctness, Uniformity, Stability) testing as a defense. When DUS test results conflict with DNA test results, courts prioritize DUS testing reports.
We have compiled the following analysis of landmark decisions from the Supreme People’s Court to further illustrate the PRC courts’ legal basis.
A. Scope of PBR Protection
The “Scilate” Apple Case: Presumption that Production of Harvested Material Necessarily Involves Production of Propagating Material[1]
In this case, the PBR holder of the “Scilate” apple variety alleged that the defendant agricultural company had, since 2018, produced, reproduced, and sold “Scilate” propagating material without authorization, and sold large quantities of the resulting fruit, constituting PBR infringement. The defendant argued that its cultivation of fruit trees was aimed at obtaining apple fruit rather than cultivating seedlings, and therefore did not constitute use of propagating material in the legal sense and was not infringement.
Examining the overall scope of PBR protection, The SPC ruled that in the process of planting and obtaining “Scilate” apple fruit, it is necessary for the defendant to reproduce large quantities of seedling branches. Therefore, its planting activities should be characterized as production and reproduction conduct, constituting infringement.
When the SPC decided the “Scilate” apple case, the Regulations had not yet been revised. Therefore, the court treated the accused infringer’s sale of harvested material as a natural extension of reproduction activities and used the sales profit from that harvested material as the basis for determining the compensation amount.
The revised Regulations, which took effect in June 2025, explicitly expanded the scope of PBR protection under Article 7. Protection of PBR is no longer limited to the production of propagating material but extends to harvested material obtained from infringing propagating material. This means that when a right holder cannot secure evidence of infringement involving propagating material, or when it is objectively impossible to collect admissible evidence of propagating material, the right holder may assert infringement based on harvested material obtained through unauthorized use of propagating material.
The “You 6019” Soybean Case: Variety Approval Designation of “Suitable Growing Areas” Does Not Limit Nationwide PBR Protection[2]
In this case, the plaintiff was the exclusive licensee of the “You 6019” soybean variety. Local agricultural enforcement authorities discovered through testing that the “Zhongdou 40” seeds sold by the defendant exhibited characteristics suggesting they were the same variety as “You 6019” soybeans. The plaintiff argued that the defendant sold this variety’s soybean seeds without authorization and could not provide lawful source proof or a complete procurement chain. The defendant countered that its sales occurred outside the “suitable growing area” designated in the “You 6019” variety approval, and therefore the plaintiff had no right to assert claims and should not receive economic compensation.
The SPC ruled that unauthorized sale of propagating material of a protected plant variety in non-approved regions also constitutes infringement. The scope of the exclusionary rights under PBR protection is not limited by the suitable growing areas or approved regions designated for the authorized variety.
B. Determining “the Same Variety”
To find infringement, it is necessary to establish that the accused crop and the authorized variety constitute the “same variety”. In practice, the determination relies primarily on two types of technical comparison methods:
- Morphological characteristic comparison (such as leaf shape, fruit type, ear type, plant height), comparing DUS test records with the control samples (hereinafter “DUS comparison“)
- DNA molecular marker testing comparison (such as comparison of MNP and SSR loci), using laboratory methods to compare the accused infringing crop with the right holder’s control sample (hereinafter “DNA comparison“)
In recent years, the SPC has articulated clear standards of evidence and application logic for determining “same variety.”
In the “NP01154” Corn Case, the SPC rejected the evidentiary value of a DNA testing report produced by the defendant using non-recognized comparison loci.[3]
In the “Jubao Purple Crystal” Phalaenopsis Case, the Supreme People’s Court clarified that high probability is sufficient to satisfy the identity determination.[4]
Additionally, the SPC has explained on its official website (Fa Da Wang) that in cases of PBR infringement disputes, when making identity determinations between accused infringing propagating material and the authorized variety, the right holder should prove that the accused infringing propagating material was obtained through publicly lawful channels. [5]
The “NP01154” Corn Infringement Case: Locus Selection in DNA Molecular Marker Testing[6]
In this case, the plaintiff was the exclusive licensee of the “NP01154” variety in China. The defendant submitted a testing report issued by a third-party institution regarding the identity of the accused infringing variety, claiming that the corn seeds it sold differed from the authorized variety “NP01154.” The testing report showed inconsistencies at 4 out of 5 additionally tested loci. However, the SPC found that the comparison loci used in this testing report did not belong to the industry-recognized “core distinctness loci” and did not constitute a mandatory “additional testing procedure,” and therefore had no evidentiary value under law.
The SPC further held that the testing institution commissioned by the plaintiff possessed statutory qualifications, followed standardized testing procedures, and the testing conclusions corroborated each other, forming a complete chain of evidence. The plaintiff fulfilled its burden of proving that the accused infringing variety’s parental lines and the variety in question had the same identity. Given that the defendant failed to provide testing results meeting judicial admissibility standards, the Court determined that the variety sold by the defendant constituted the same variety as “NP01154” corn, establishing the infringement.
The “Jubao Purple Crystal” Phalaenopsis Case: Using DUS Comparison Evidence to Remedy Defects in DNA Comparison[7]
In this case, the plaintiff was the exclusive licensee of the phalaenopsis plant variety “Jubao Purple Crystal.” The defendant raised the defense that the control sample was sent by Jubao Company itself rather than using the standard sample preserved by the Ministry of Agriculture and Rural Affairs, and no proof of the lawful source of the sample was provided. However, the defendant failed to provide effective rebuttal evidence regarding the breeding source, reproduction process, or independent breeding evidence for the variety it sold.
The SPC held that the testing report in question was commissioned by the PBR holder for its own purposes, and the control sample used was propagating material of the authorized variety “Jubao Purple Crystal.” This report alone was insufficient to prove that the accused infringing variety and the authorized variety had the same identity. However, considering the DUS test report for “Jubao Purple Crystal” and photographs of the accused infringing plants in the notarized evidence, the accused infringing plants and the authorized variety exhibited high similarity in major characteristics. This could further corroborate the high probability that the accused infringing “Purple Crystal” and “Jubao Purple Crystal” were the same variety.
Although the defendant raised defenses against the infringement allegations, it failed to provide rebuttal evidence regarding the breeding source of the phalaenopsis variety it sold. According to Article 6 of the Supreme People’s Court Provisions (II) on Several Issues Concerning the Application of Law in the Trial of Plant Variety Rights Infringement Dispute Cases (hereinafter the “PBR Judicial Interpretation II“), when a PBR holder or interested party presents evidence proving that the name used for the accused infringing variety’s propagating material is the same as that of the authorized variety, the court may presume that the accused infringing variety’s propagating material belongs to the propagating material of the authorized variety. Comprehensively assessing the evidence on record, which formed a relatively complete chain of evidence, the Court concluded that there was a high probability that the accused infringing “Purple Crystal” phalaenopsis plants and the authorized variety “Jubao Purple Crystal” phalaenopsis were the same variety, and therefore determined that the accused infringing variety and the authorized variety had the same identity.
II. APPLICATION OF DEFENSES
A. The “Lawful Source” Defense
According to Article 45 of the Regulations, if the accused infringer can prove that the propagating material of the authorized variety it sold was obtained from a lawful source, it shall not be liable for damages. This exemption applies only to sellers of propagating material and those who condition propagating material for others, but not to reproducers. In practice, establishing “lawful source” typically requires providing the following materials:
- Purchase and sales contracts or receipts to prove lawful procurement channels and reasonable sales prices
- Evidence that sales activities comply with relevant production and business licensing systems
The “Jubao Purple Crystal” Phalaenopsis Case – Exemption Limited to Entities Engaged Solely in Sales[8]
In this case, the defendant argued that it did not implement acts infringing the authorized variety in question, that the phalaenopsis it sold were purchased from a third party and entrusted to an agricultural research institute for cultivation, that it did not directly implement production or reproduction activities, and that it had a lawful source.
The trial court rejected the defendant’s lawful source defense solely from the perspective of the objective evidentiary value. It held that sellers should generally prove the lawful source by demonstrating its procurement channels, reasonable prices, the existence of actual suppliers, and compliance with relevant production and business licensing systems. In this case, the lawful source evidence submitted by the defendant were not stamped with an official seal, the purchase date was inconsistent with the notarized purchase date in this case, the products on the documents could not form a one-to-one correspondence with the accused infringing variety in this case, and the defendant failed to further submit evidence conforming to transaction practices such as payment vouchers and standard sales contracts, or relevant business licenses. Therefore, the trial court held that the lawful source defense was not established.
In the second instance, the SPC further clarified the applicable subjects of the lawful source defense: it is limited to sellers who only engage in selling the accused infringing products and do not engage in producing or reproducing accused infringing products. In this case, the defendant implemented acts of producing and reproducing the accused infringing phalaenopsis. As an entity directly implementing production and reproduction activities, it did not qualify to invoke the seller’s lawful source defense.
B. The Farmer’s Exemption
Article 12 of the Regulations provides exemptions for scientific research and teaching use, as well as farmers’ privilege (saving seeds for replanting), without requiring payment of licensing fees or the authorization of the PBR holder. However, the scope of these exemptions is quite narrow and must meet substantive restrictive conditions.
Regarding the farmer’s privilege exemption, in the “Nanjing 9108” Rice Variety Case,[9] the SPC held that the subjects of “farmer’s privilege” are individual farmers who have signed rural land contract agreements under the household contract responsibility system, excluding cooperatives, large-scale grain growers, family farms, and other new types of agricultural business entities. The applicable land scope is limited to land contracted under the household contract responsibility system, excluding land for which operating rights have been obtained through various transfer methods. The applicable seed use should also be limited to personal use. Apart from the legally permitted sale or exchange of surplus conventional seeds in local rural markets, saved seeds produced cannot be provided to others for use through various transaction forms.
For the “scientific research and teaching” exemption, courts typically require that the conduct have a clear non-profit research or teaching purpose, and that the relevant use cannot carry actual commercial sales tendencies.
C. The Defense of Scientific Research and Teaching
The “Tianshan Xiangyun” Rosa Plant Case—Even Public Welfare Institutions Must Control Reproduction Scale Within Reasonable Limits[10]
In this case, the right holder held PBR to the Rosa plant variety “Tianshan Xiangyun,” which had been authorized and registered by the National Forestry and Grassland Administration. The defendant, a Xinjiang farmer implemented production, reproduction, and sales activities regarding this variety without obtaining authorization. During litigation, the defendant argued that it was a public welfare institution, its relevant activities were for scientific research purposes, falling under the “scientific research and teaching use” exception under Article 10 of the Regulations, and that the seedlings it obtained were collected from municipal parks or introduced from other regions. Based on the exhaustion of rights principle, there was no infringement.
The SPC held that the defendant was actually engaged in large-scale, commercial seedling production activities, and the large-scale reproduction was inconsistent with the scale needed for scientific research. Its activities clearly exceeded the scope of reasonable use for scientific research and had a profit-making purpose. Ultimately, the Court held that the “scientific research use” defense was not established.
III. CALCULATION OF DAMAGES & MEANS OF CEASING INFRINGEMENT
According to Article 41 of the Regulations, Article 72, Paragraph 3 of the Seed Law, and Article 1182 of the Civil Code, when PBR holders’ rights are violated, they have the right to demand cessation of infringement, compensation for losses, and the adoption of necessary enforcement measures. In recent years, people’s courts have provided relatively clear adjudication practices regarding standards for calculating compensation amounts and methods for enforcing cessation of infringement in related cases.
In determining compensation amounts, courts typically comprehensively consider factors such as the severity of the infringement, whether it constitutes repeated infringement, and whether authorization licensing was intentionally evaded. When the right holder’s actual losses or the infringer’s illegal gains are difficult to ascertain, courts may, based on indirect evidence such as sales differences and market share impact submitted by the right holder, determine a reasonable compensation amount at their discretion. Additionally, in certain cases with egregious circumstances, courts have explored the application of punitive damages mechanisms.
Regarding enforcement of cessation of infringement, courts not only support traditional injunctions but also increasingly apply more operational measures, such as on-site removal of involved seedlings, deactivation treatment of propagating material, and requiring defendants to replace or forcibly graft within specified periods, thereby effectively protecting the legitimate rights and interests of right holders.
The “NP01154” Corn Infringement Case—Severe Infringement Circumstances Warranting Punitive Damages[11]
The plaintiff, a Heng Company, as the exclusive licensee of the “NP01154” variety in China, sued a Jin Company, alleging that seven hybrid corn varieties it produced and sold, including “Zhengpin Yu 491,” all utilized “NP01154” as a parental line for hybridization. The plaintiff requested the court to order Jin Company to cease infringement and compensate for economic losses of RMB 160 million plus reasonable rights protection expenses of RMB 200,000.
The SPC calculated Jin Company’s infringing profits at RMB 26,673,581.55 based on a comprehensive calculation considering the production area, seed production volume, unit profit, and contribution rate of the hybrid variety of the accused infringing hybrid varieties. The specific calculation method was as follows:
- The actual production area of the accused infringing hybrid varieties was 8,243.4 mu, used as the infringement scale for calculating infringing profits.
- According to the audit report, the actual average seed production per mu for hybrid varieties was approximately 430 kg, which was adopted as the seed production volume for the accused infringing hybrid varieties.
- RMB 10.75 per kilogram, as claimed by Heng Company, was used as the unit profit for the accused infringing hybrid varieties.
- According to the practice of corn seed breeding achievement income distribution, the income distribution ratio for the father line owner, mother line owner, and variety developer is 3:3:4. Since the accused infringer did not obtain usage rights to the protected variety through lawful, normal transaction negotiations, when determining infringement compensation in infringement disputes, the income proportion for the authorized variety should generally be appropriately increased according to specific infringement circumstances and the infringer’s subjective state. The Court determined the contribution rate of “NP01154” at 70% of the hybrid variety profit.
Regarding the application of punitive damages, the SPC held:
- Jin Company had obvious infringement intent. Jin Beijing Company was an affiliated company of Jin Company, its legal representative had participated in the application and cultivation of the authorized variety “NP01154,” and Jin Company could not explain the lawful source of the parental lines. After receiving a lawyer’s letter, it continued to infringe.
- Jin Company’s infringement circumstances were serious. This case involved 7 approved varieties, infringing production activities continued from 2019 to 2023, a long infringement period, and large production areas, constituting serious infringement circumstances.
Ultimately, the SPC decided to apply punitive damages at a multiplier of one (i.e., doubling the compensatory damages).
The “Scilate” Apple Case—Infringing Seedlings May Be Subject to Deactivation Treatment[12]
The plaintiff, as the PBR holder of the “Scilate” apple variety, applied for the court order to cease infringement and apply deactivation to the infringing seedlings. The defendant grower argued that the project involved fiscal poverty alleviation funds, and removing seedlings would cause serious harm to villagers’ interests, and therefore deactivation measures should not be adopted.
The SPC stated that when the right holder and the infringer fail to reach an agreement on disposal through discounted pricing, deactivating the infringing material is an effective method to protect PBR holders’ rights and realize the court’s request of ceasing the infringement. In this case, the plaintiff explicitly refused to grant a license and had no intention of accepting a discounted compensation plan. The infringer should naturally bear civil liability for cessation of infringement. Additionally, the SPC rejected the defense that “deactivation treatment harms the interests of poverty alleviation project villagers,” stating that this circumstance does not constitute a legal exception, deactivation measures comply with legal provisions, and do not constitute substantial harm to public interests. Villagers’ interests can be protected through contractual compensation mechanisms.
Considering that the infringement objects in this case were perennial, asexually reproduced fruit trees, the SPC noted that if deactivation treatment were not applied to this variety, infringing material would continue to exist long-term with ongoing risk of reproduction and spread. Taking the continuity of agricultural production into account, the Court accepted the right holder’s proposed plan to “remove infringing scions and apply deactivation treatment while grafting scions of other non-infringing varieties.” This effectively blocks infringement while preserving the fruit trees’ vegetative organs and root systems, facilitating production recovery, reflecting judicial consideration of the reasonable balance between rights protection and agricultural economy.
The “Sweet Sapphire” Case—Plants already grown before the date of granting the PBR could be found unlawful and should be destroyed[13]
Article 34 of the Regulations provides that during the period after a PBR application is filed but before it is granted, if propagating materials of the variety is produced or sold for commercial purposes without the PBR holder’s permission, the PBR holder has the right to seek compensation. According to the SPC’s views in past cases, this right to seek compensation is an economic remedial right to protect the interests of right holders but the activity of planting the variety before the granting date won’t be found an infringement.
In the “Sweet Sapphire” case, a fruit breeder’s grape variety was granted PBR in China in May 2022. A grower planted and sold both the variety seedlings and fruits before the variety was granted the PBR. After the variety in question was granted the PBR, the breeder collected infringement evidence and filed an administrative complaint with the local administrative enforcement agency. After investigation, the local enforcement agency issued an administrative penalty decision, which includes (1) destroy the infringing grape vines, (2) confiscate illegal gains, and (3) pay a fine. Subsequently, the grower filed an administrative lawsuit against the local enforcement agency. The SPC issued a final judgment in 2025, which upheld the legality of the administrative penalty and dismissed the grower’s complaints.
Since the accused infringing vines were planted before the variety was granted the PBR, this case triggers an important question: for vines planted before the PBR granting date but survived afterwards, can the cessation of infringement be enforced in the form of destroying these growing plants?
In the “Sweet Sapphire” case, the SPC did not specifically address this issue, but because its final decision upheld the administrative enforcement agency’s whole decision including destroying the remaining vines, the following conclusion can be drawn: at least for asexually reproduced crops, if the plants survived past the granting date and the grower continued harvesting from these plants, the living vines shall be destroyed.
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Overall, the SPC’s PBR decisions from 2024-2025 have further clarified judicial standards regarding infringement determination criteria, evidence admissibility rules, and methods of liability. Particularly regarding the identity determination pathway for “same variety” and the logic of damages calculation, adjudication approaches demonstrate an increasingly systematic and predictable trend.
With the implementation of the amended Regulations in 2025, the level of precision required of breeding enterprises and seed industry operators in authorization chain management, verification of propagating material sources, and evidence preservation will play an increasingly critical role in future disputes. The adjudication guidance presented in the relevant decisions also provides clear references for market participants in assessing potential infringement risks.
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ABOUT THE AUTHORS
Donnie Hao DONG, Senior Partner, Hylands Law Firm
Email: donghao.sh@hylandslaw.com
Dr. Dong is a Senior Partner at Hylands Law Firm (Shanghai). He has 20 years of professional experience in intellectual property, data & privacy, and cross-border business. Before joining Hylands, Dr. Dong lived and worked in Shanghai, Hong Kong, San Francisco, and Boston, successively working at top global universities, leading international law firms, and major fintech companies. After joining Hylands, Attorney Dong has been recognized as a Leading Lawyer in the 2024 Legal 500 Guide, an “ALB China Top 15 Cybersecurity and Data Protection Lawyer” for 2025 by Asian Legal Business, and was awarded “Top-Tier” talent by Shanghai Pudong Department of Justice in 2024.
Amber Wenqian HUANG, Associate, Hylands Law Firm (Shanghai)
LL.M. at University of Hamburg, Germany, Amber has assisted numerous domestic and foreign clients with legal matters related to plant variety protection, data and privacy protection; participated in data due diligence; provided legal opinions on NFT, Web3, data-related intellectual property and other fields; published multiple papers and book chapters related to EU law and data privacy law.
Lucia Jialu LI, Legal Assistant, Hylands Law Firm (Shanghai)
Graduated from the University of Macau, Soochow University (Taiwan) and Yunnan University respectively, Lucia participated in plant variety protection and rights enforcement projects, cross-border compliance, and U.S. federal court litigation support and other foreign-related projects.
FOOTNOTES:
[1] SPC Case No. (2023) Zui Gao Fa Zhi Min Zhong 3113.
[2] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 713.
[3] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 337.
[4] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 1201.
[5] See SPC Official Website: https://www.court.gov.cn/zixun/xiangqing/481361.html
[6] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 337.
[7] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 1201.
[8] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 1201.
[9] SPC Case No. (2019) Zui Gao Fa Zhi Min Zhong 407
[10] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 665.
[11] SPC Case No. (2024) Zui Gao Fa Zhi Min Zhong 337.
[12] SPC Case No. (2023) Zui Gao Fa Zhi Min Zhong 3113.
[13] SPC Case No. (2024) Zui Gao Fa Zhi Xing Zhong 701.
