CIOPORA Chronicle 2015

IP in the World
In recent years,
the protection of
Intellectual Property
(IP) rights in the
People’s Republic
of China has
become one of the
priority business
issues for more and
more horticultural
companies.
The promising PVP
system and PBR law
enforcement in China
In September 2011, the Chinese
Ministry of Agriculture (MOA)
introduced a new Bureau for
Seed Administration to integrate
PVP and VCU (Variety Registration)
for agricultural crops and
plants. By November 2012, 10.000
PBR applications were filed at
MOA.
by Dr. Shujun Yu
Upgrade
As of April 2013, the State Forestry
Administration in charge of forest
trees and woody ornamentals (SFA)
upgraded the list of protected
varieties in China to 120 genera
and species. By the end of 2014,
MOA received an annual average
of 1.650 PBR applications. Further
developments are planned for 2015,
including the establishment of the
Strategic Ally China Guangdong
Association for Advancement of Industrial
Technology Innovation for
Ornamental Plants (GAITOP) and
opening of the first Chinese auction
for landscape & garden plants.
In addition, a review of the Seed
Law is planned to take place in
2015. The prognosis is that the law
will incorporate some provisions of
the 1991 Act of UPOV.
PBR Enforcement
In order to enforce a PBR in China,
it should be first confirmed that the
allegedly infringed plant variety is
indeed under protection in China.
Additionally, the variety must be
identified. Due to the lack of local
comprehensive DNA database, this
procedure might become lengthy
and costly. Alternatively, the
material of protected variety can be
imported from e.g. the Netherlands
to China via Chinese embassy in
Amsterdam, who will serve as notary
for the procedure. The Chinese
court will then appoint a DNA
fingerprint analysis of the plant
variety in question, which will be
carried out locally. Chinese courts
also accept DNA fingerprints of
the involved variety directly from
foreign authorities as evidence on
the case.
Choosing a competent court for a
PBR enforcement case is vital for
the case. For instance, in contrast
to courts in Shanghai or Yunnan,
the courts in Jiangsu have a lot of
experience with PBR cases.
The estimate cost of a court case
on PBR infringement, including
the collection of evidences and the
variety identification, amounts for
100,000 RMB (approx. 15.000
EUR). However, depending on
quantity of illegally propagated
plants, the return on investment
on such a case can be over 200.000
RMB. |||
About the author
Dr. Shujun Yu is an IP and corporate
law attorney at Beijing Hengda
AgForest PBR Attorneys Co., Ltd..
44 www.FloraCulture.eu | CIOPORA Chronicle June 2015