China’s Growing Focus on the Protection of Rights to New Plant Varieties:
Three Guiding Cases and Related Implications†

By: Dr. Mei Gechlik / On: December 1, 2021

Digest

The Supreme People’s Court of China released Guiding Case Nos. 92, 100, and 160 in November 2017, December 2018, and July 2021, respectively, to clarify fundamental issues related to the protection of rights to new plant varieties that were left unanswered by the country’s legislation and judicial interpretations.  Covering fundamental issues such as the use of DNA fingerprinting tests, the parties’ burden of proof, and the definition of the term “propagation materials”, these three cases provide timely guidance to courts in a country that has seen a rapid rise in disputes related to plant varieties.

Yet, have these three Guiding Cases essentially lost their significance, considering that their guiding principles, as analyzed in this article, have already been incorporated into the Supreme People’s Court’s latest judicial interpretation related to new plant varieties?  This article explains why the answer is negative and discusses related implications that help reveal where Guiding Cases stand in the Chinese legal system and how they can further shape the development of China’s mechanisms for protecting the rights to new plant varieties.

Introduction

One out of ten persons on Earth do not have enough food to eat, according to the World Food Programme.  With the onerous responsibility to feed a population of 1.4 billion and the painful experience of having inadequate food supplies in the past, China takes food security seriously.

In March 1997, approximately two years before China’s accession to the International Convention for the Protection of New Varieties of Plants (1978 Text) in April 1999, China issued the Regulation of the People’s Republic of China on the Protection of New Plant Varieties, marking the beginning of the country’s establishment of a legal framework focusing on the protection of breeders’ (and their successors’) rights to new plant varieties.  This framework has been evolving rapidly and, if all the rights and interests of different stakeholders (e.g., farmers, the agriculture industry, and consumers) are balanced well, China will be able to ensure food security and accomplish other goals, such as rural development.  In addition, China’s experience will provide useful lessons to the rest of the world.

“[China’s legal framework regarding new plant varieties] has been evolving rapidly and, if all the rights and interests of different stakeholders (e.g., farmers, the agriculture industry, and consumers) are balanced well, China will be able to ensure food security and accomplish other goals, such as rural development.”

China’s legal framework related to plant variety rights is a complicated web intertwined with various types of legislation (e.g., the aforementioned regulation on new plant varieties, the Seed Law of the People’s Republic of China, and the Measures for the Examination and Approval of Major Crop Varieties), judicial interpretations, and industry standards.  To provide guidance on some legal issues that were not clarified by this framework, the Supreme People’s Court of China has so far released four Guiding Cases, China’s de facto binding precedents, related to this area: Guiding Case Nos. 86, 92, 100, and 160, which were released in March 2017, November 2017, December 2018, and July 2021, respectively.

Guiding Case No. 86 illustrates how the court helped the parties to resolve a deadlock to ensure the continuous propagation of a significant variety.  Guiding Case Nos. 92, 100, and 160, which are the focus of this article (the full-text translations of these cases were prepared under the author’s supervision and are also available on SINOTALKS.COM), are significant in another way.  They show the Chinese judiciary’s clarifications of fundamental issues such as the use of DNA fingerprinting tests, the parties’ burden of proof, and the definition of the term “propagation materials”.

Interestingly, the guiding principles of Guiding Case Nos. 92, 100, and 160 have already been incorporated into the Several Provisions of the Supreme People’s Court on Issues Concerning the Specific Application of Laws in Handling Disputes over Infringement of Rights to New Plant Varieties (II) (the “Several Provisions (II)”), a judicial interpretation issued by the Supreme People’s Court on July 5, 2021.  One must then wonder: do these three Guiding Cases still have any significance, since lawyers and judges handling subsequent cases can just cite the judicial interpretation as the basis of those principles?  As analyzed below, these Guiding Cases do have additional significance.  In fact, were it otherwise, it would have been unnecessary to release Guiding Case No. 160 on July 23, 2021 because the Several Provisions (II) became effective slightly more than two weeks before (i.e., on July 7, 2021).  Then, what is the additional significance?  How does this help shed light on the roles of China’s Guiding Cases in the Chinese legal system as a whole and in the country’s protection of the rights to new plant varieties, a relatively new but extremely important area of law?  The author shares her insights after providing an overview of Guiding Case Nos. 92, 100, and 160 and explaining how their principles have been incorporated into the Several Provisions (II).

Guiding Case No. 92 and Article 23 of the Several Provisions (II)

Guiding Case No. 92 concerns a lawsuit brought by Laizhou Jinhai Seeds Co., Ltd. (“Jinhai Seeds Company”) against Zhangye Fukai Agricultural Science and Technology Limited Liability Company (“Fukai Company”).  Jinhai Seeds Company claimed that Fukai Company’s production of a type of seed had infringed on its rights to a new plant variety, “Jinhai No. 5” maize.  The court ruled in favor of plaintiff Jinhai Seeds Company because (1) the result of a DNA fingerprinting test did not meet a standard that would allow the court to conclude that the allegedly infringing seed and “Jinhai No. 5” were different, and (2) defendant Fukai Company failed to submit further evidence proving that the allegedly infringing seed and “Jinhai No. 5” were indeed different.

As a result, Guiding Case No. 92 provides the following principle in the “Main Points of the Adjudication” section, which, according to China’s rules on Guiding Cases, courts handling similar subsequent cases are expected to cite and follow:

According to the testing and determination standard titled DNA Fingerprinting Method for the Appraisal of Maize Varieties (NY/T 1432-2007), a standard of the agriculture industry in the People’s Republic of China[: if] the number of different loci between [the compared] varieties is equal to one, [the compared varieties] are determined to be similar varieties; [if] the number of different loci between [the compared] varieties is equal to or greater than two, [the compared varieties] are determined to be different varieties.  [In other words, if] the number of different loci between [the compared] varieties is equal to one, this is not sufficient to determine that [the compared varieties] are not the same variety.  Where the number of different loci is below two, [a people’s court] should comprehensively consider this and other factors—e.g., additional tests carried out by increasing the testing loci, validated samples submitted for determination, etc.—to determine whether [the compared varieties] are different, and the burden of proof is borne by the allegedly infringing party. (emphasis added)

The above principle is now reflected in Article 23 of the Several Provisions (II), which states that in a DNA fingerprinting test “where the number of different loci between [the compared varieties] is below the critical value and the allegedly infringing party asserts that the features and characteristics of [the compared varieties] are different, the burden of proof should be borne by [the allegedly infringing party]”.  Article 23 also provides that a people’s court may, based on a party’s application, have additional tests carried out by increasing the testing loci to determine, together with other factors, whether the compared varieties are different.

Guiding Case No. 100 and Article 24 of the Several Provisions (II)

[…]

Guiding Case No. 160 and Article 3 of the Several Provisions (II)

[…]

Implications: Additional Significance and Outlook

[…]

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^† The citation of this article is: Dr. Mei Gechlik, China’s Growing Focus on the Protection of Rights to New Plant Varieties: Three Guiding Cases and Related Implications, SINOTALKS.COM, SinoInsights™, Dec. 1, 2021, https://sinotalks.com/sinoinsights/202112-mei-gechlik.

The original, English version of this article was edited by Nathan Harpainter.  The information and views set out in this article are the responsibility of the author and do not necessarily reflect the work or views of SINOTALKS.COM.

Three versions (with detailed footnotes and, if applicable, sidebars and appendices) are published.
三个版本（附有详细注释，以及侧边栏和附录（如果适用））已出版。