2011 CIOPORA Chronicle - the 50th Anniversary Edition

China
On June 5th
2008, the Chinese
government released
the National
Strategy for
Intellectual Property
Rights (IPR), in
which, for the first
time, Plant Variety
Rights (PVR) have
been upgraded to a
similar position as
patents, trademarks
and copyrights.
Dr. Yu (right) and his PBR partner.
China deploys national
strategy for IPR
by Dr. Shuyun Yu
In 1997, China legislated the
PVP law as Regulations of the
People’s Republic of China on
the Protection of New Varieties of
Plants to comply with the 1978 Act
of the UPOV convention, to which
China became the 39th member
state on April 23rd 1999. Revision
of the regulations will soon start
in order to match some definitions
of the UPOV 1991 Convention.
According to China’s situation and
condition of state, it is assumed that
China will not join the UPOV Convention
1991 in the near future.
Revised rules
On 1st January 2008, China started
the implementation of revised rules of
PVP Regulations for the agricultural
sector, with exception for forest trees,
shrubs, and woody ornamentals, such
as: roses, Azaleas, Poinsettias and tree
peonies. In these rules the definition
of novelty, i.e. the first sale of candidate
variety of plants, was limited to
stringent conditions.
Renewed judicial interpretation
On February 1st 2007, the Chinese
Supreme Court started a renewed
judicial interpretation in which
the evidence to be preserved of an
alleged infringement was specified
and the penalty was intensified to
make the professional PBR lawsuits
more operable and practicable.
PBR plantlist
The updated 8th batch list of
protectable agricultural plants was
released on 18th January, 2010 by
the Chinese MOA. So far, a total
of 158 genera or species are on the
national lists of PBR protection.
Yunnan Province
The local legislator of Yunnan province
has formulated local Regulations
on PVP, which complement
the national Chinese system of PBR
protection
1, For all horticultural crops, both
the national PBR protection and
Yunnan provincial PBR registration
could be applied for.
2, Regarding the farmer's privilege,
the Yunnan local PBR regulation
contains the same rules
and effects as the national PVP
regulation.
3, The local application procedure
should be much easier and faster
than an application for a Chinese
national PBR.
4, The local protection would be
effective from the registration
date. The duration of protection
in Yunnan would be 10 years for
woody plants and 5 years for the
other varieties respectively since
the registration date.
5, For the PBR granted varieties in
any UPOV member states, but
not granted PBR yet in China,
while registered in Yunnan, the
local government would offer
protection for the same period as
the country in which PBR originally
has been granted for.
Administrative
enforcement
MOA has executed pilot activities
regarding PVP law enforcement
in more than 22 provinces and
municipalities to explore the effective
pattern for law enforcement
in PBR, esp. for agricultural crops,
such as corn, rice, wheat, cotton.
Consequently, various actions
against infringement upon PBR
have been effectively carried out,
the legal rights and commercial
interests of the plant breeders from
home and abroad protected and
the civil investment in breeding
mobilised.
Court enforcement
According to www.ipr.chinacourt.
org, from January 2008 until January
2011 about 400 PBR lawsuit
cases were instituted at different
provincial or city’s courts all
around China. The main crops are
corn, rice and some other typical
lawsuits involve fruit and ornamental
crops. There were two similar
PBR lawsuits conducted in Beijing
and Fujian province in 2010. The
tree peony variety ‘Aoshuang’ was
originally found and bred by a
local farmer, as individual breeder
in Shandong province, but Beijing
Forestry University as the partner,
made an embezzlement of the
PVR. For a citrus variety there
was a similar situation in Fujian
province where it was encroached
by Fruit Tree Institute in Fujian
Academy of Agricultural Sciences,
but the actual breeder was a fruit
farmer. Finally, after ruling of the
court, the individual breeders won
back their plant breeder’s rights. |||
46 www.CIOPORA.org | CIOPORA Chronicle April 2011