Digest

Guiding Case Nos. 92 and 100, which were released by the Supreme People’s Court of China in November 2017 and December 2018, respectively, provide guidance on how to use DNA fingerprinting test results to determine whether an allegedly infringing plant is different from a plant for which variety rights have been granted and how to handle related burden of proof issues.

“According to China’s legislation, propagation materials of the plant for which variety rights have been granted are clearly protected.  Yet, what are ‘propagation materials’?”

In July 2021, the Supreme People’s Court released Guiding Case No. 160 to address another fundamental issue: when rights to a new plant variety are granted, what falls within the scope of protection?  According to China’s legislation, propagation materials of the plant for which variety rights have been granted are clearly protected.  Yet, what are “propagation materials”?  Unfortunately, “[r]elevant law, administrative regulations, and rules in China […] do not clearly state how to determine which parts of the plant body of a specific variety are propagation materials” (see “Reasons for the Adjudication” section of Guiding Case No. 160).  Guiding Case No. 160 fills the legal gap by setting the criteria for such determination.

Keywords

Civil
Infringement of Rights to a New Plant Variety
Scope of Protection
Propagation Material
Harvest Material

Main Points of the Adjudication

1. Propagation materials of a variety for which rights have been granted are within the scope of protection of the rights to the new plant variety and are the basis for the variety rights-holder’s exercise of his exclusive rights.

[…]

2. […]

Related Legal Rule(s)

Article 28 of the Seed Law of the People’s Republic of China

Article 6 of the Regulation of the People’s Republic of China on the Protection of New Plant Varieties

Basic Facts of the Case

[…]

Results of the Adjudication

[…]

Reasons for the Adjudication

[…]

“With the development of science and technology, plant bodies that are different from the propagation materials [used] at the stage when the rights to a new plant variety were granted may also become the planting materials selected by breeders, […].”

[…]

Appendix 1

Seed Law of the People’s Republic of China

[…]

Appendix 2

Regulation of the People’s Republic of China on the Protection of New Plant Varieties

[…]

Appendix 3

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

[…]

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^† The citation of this piece is: The Editorial Board of SINOTALKS.COM, Guiding Case No. 160: CAI Xinguang v. Guangzhou Runping Commercial Co., Ltd., A Dispute over Infringement of Rights to a New Plant Variety, SINOTALKS.COM, SinoRules&Cases™, Dec. 1, 2021, https://sinotalks.com/sinorulescases/guiding-case-160. After being discussed and passed by the Adjudication Committee of the Supreme People’s Court, Guiding Case No. 160 was released on July 23, 2021.

This translation of Guiding Case No. 160 was prepared, with research support from Haoxuan Cheng, by members of the Editorial Board of SINOTALKS.COM, and was finalized by Nathan Harpainter, Dimitri Phillips, and Dr. Mei Gechlik.  Minor editing, such as splitting long paragraphs and adding a few words included in square brackets, was done to make the piece more comprehensible to readers.  Unless stated otherwise, the Digest, any Appendix, and all footnotes have been added by SINOTALKS.COM.  The translated text is otherwise a direct translation of the original, Chinese text released by the Supreme People’s Court.

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