On March 20, 1997, the State Council promulgated the 'Regulations of the People's Republic of China on the Protection of New Varieties of Plants'(here). Thereafter China deposited its instrument for accession to the 1978 Act of the UPOV Convention and became the 39th leaguer State of UPOV on April 23, 1999. On the same date, the Plant Variety Protection Office of the Ministry of Agriculture started to receive PVP applications domestically and internationally.
The 'Regulations of the People's Republic of China on the Protection of New Varieties of Plants is divided in Seven Chapters & these chapters are further divided in 46 articles.
CHAPTER I GENERAL PROVISIONS
1. “new plant variety “means a cultivated plant variety, or a developed one based on a discovered wild plant, which is new, distinct, uniform and stable, and whose denomination is adequately designated.
2. Examining and approving authorities is the “Administrative Departments of Agriculture and forestry” under the State Council.
3. One new plant variety shall be granted only one set of variety rights. If two or more applicants apply separately for variety rights in respect of the same new plant variety, the variety rights shall be granted to the person who applies first; in the case of a simultaneous application, the variety rights shall be granted to the person who has first accomplished the breeding of the new plant variety concerned.
4. Provision of Compulsory Licence: The examining and approving authorities may, in the national or the public interest, decide to grant a compulsory license to exploit new plant varieties, which should be subsequently registered and published. (a)The entity which or the person who is granted a compulsory license for exploitation shall pay the variety rights holder a reasonable exploitation fee, the amount of which shall be fixed by consultation between the two parties. Where the parties fail to reach an agreement, the examining and approving authorities shall adjudicate.(b)Where the variety rights holder is not satisfied with the decision to grant a compulsory license or is not satisfied with the adjudication regarding the fee payable for exploitation, he or it may, within three months from the date of receiving the notification, file a suit with the People’s Court.
5. The new plant variety in respect of which variety rights have been applied for shall be part of the botanical genera and species included in the national list of protected plant varieties. This list of protected plant varieties shall be determined and published by the examining and approving authorities.
6. Meaning of Novelty: Novelty means that the propagating material of the new plant variety in respect of which variety rights are applied for has not been sold prior to the filing date of the application, or has not been for sale, with the consent of the breeder, for more than one year within the territory of China; the propagating material of vines, forest trees, fruit trees and ornamental plants must not have been for sale for more than six years, or the propagating material of other plant varieties for more than four years, in a foreign territory.
7. Distinctness means that the plant variety in respect of which variety rights are applied for must noticeably distinguish it from any other plant variety known prior to the filing of the application.
8. Uniformity means that the plant variety in respect of which variety rights are applied for is uniform, subject to the variation that may be expected, in its relevant features or characteristics after propagation.
9. Stability means that the plant variety in respect of which variety rights are applied for keeps its relevant features or characteristics unchanged after repeated propagation or at the end of a particular cycle of propagation.
10. Provision for foreign applicants: If a foreigner, a foreign enterprise or any other foreign institution files an application for variety rights in China, the application shall be handled under these Regulations in accordance with any agreement concluded between the country to which the applicant belongs and the People’s Republic of China, or any international convention to which both countries are party, or on the basis of the principle of reciprocity.
11. Timelines for foreign application filing :Where, within 12 months from the date on which any applicant has first filed an application for variety rights in a foreign country, the said applicant files an application for variety rights in China in respect of the same new plant variety, he or it may, in accordance with any agreement concluded between the said foreign country and the People’s Republic of China or any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.
12. Any applicant who claims the right of priority shall make a written statement when the application is filed, and shall submit, within three months, a copy of the variety rights application documents that were first filed, as confirmed by the original receiving authority; if the applicant fails to make the written statement or fails to submit a copy of the variety rights application documents under the provisions of these Regulations, the claim to the right of priority shall be deemed not to have been made.
13. The application documents shall be written in Chinese.
14. Date of filing: The date on which the examining and approving authorities receive the variety rights application documents shall be the filing date of the application. Where the application documents are filed by mail, the postmark date shall be the filing date of the application.
15. Amendments in application: An applicant may amend or withdraw his or its variety rights application at any time before the variety rights are granted.( it can be interpret with Indian law)
16. Procedures for examination: The examining and approving authorities shall complete the preliminary examination within six months after the variety rights application is formally received. Where the variety rights application is found acceptable on preliminary examination, the examining and approving authorities shall have it published and serve notice on the applicant to pay the examination fee within three months.
17. DUS Test: After the applicant has paid the prescribed examination fee, the examining and approving authorities shall carry out a substantive examination of the distinctness, uniformity and stability of the variety in respect of which variety rights are applied for. Note: Where the applicant has not paid the prescribed examination fee, the variety rights application shall be deemed to have been withdrawn.
18. Provision of Re-Examination Board for New Varieties of Plants: (a).Where any applicant is not satisfied with the decision of the examining and approving authorities refusing a variety rights application, that applicant may, within three months from the date of receiving the notification, request the Re-Examination Board for New Varieties of Plants to carry out a re-examination. (b).The Re-Examination Board for New Varieties of Plants shall, within six months from the date of receiving the request for re-examination, take a decision and notify the applicant accordingly (c).Where any applicant is not satisfied with the re-examination decision of the Re-Examination Board for New Varieties of Plants, that applicant may, within 15 days from the date of receiving the notification, file a suit with the People’s Court.
19. Term, Termination and Invalidity: The term of protection of variety rights, counted from the date of grant thereof, shall be 20 years for vines, forest trees, fruit trees and ornamental plants and 15 years for other plants.(It can be interpreted with Indian PPV & FR Act)
20. Penalty Provisions: (a)In handling cases of infringement of variety rights in accordance with their respective competence, the administrative departments of agriculture and forestry of the People’s Governments at provincial level or above may, for the purposes of safeguarding the public interest of the society, order the infringer to stop the infringing act, confiscate the unlawful earnings and punish him with a fine five times more than the unlawful earnings.(b)Where any new plant variety is counterfeited: punishment with a fine at least one but not exceeding five times more than the unlawful earnings; where the circumstances of the case are so serious as to constitute a crime, the party concerned shall be subjected to criminal liability investigation in accordance with the law.(c) Penalty for applying false denomination: Where the protected variety is sold without using the denomination as used in its registration, the administrative departments of agriculture and forestry of the People’s Governments at county level or above shall, in accordance with their respective competence, order a correction within a specified time limit, and may impose a fine not exceeding 1,000 yuan.
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