Guiding Case No. 92:

Laizhou Jinhai Seeds Co., Ltd. v.
Zhangye Fukai Agricultural Science and Technology Limited Liability Company,
A Dispute over Infringement of Rights to a New Plant Variety†

指导案例92号：
《莱州市金海种业有限公司诉张掖市富凯农业科技有限责任公司侵犯植物新品种权纠纷案》

By: The Editorial Board / On: December 1, 2021

Table of Contents

Digest
Keywords
Main Points of the Adjudication
Related Legal Rule(s)
Basic Facts of the Case
Results of the Adjudication
Reasons for the Adjudication
Appendix 1
Appendix 2

Number of Words (bilingual version)

Approximately 9900

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Andrew Schmidt, *Corn On The Cob*, Publicdomainpictures.net

Digest

In November 2017, the Supreme People’s Court of China released Guiding Case No. 92 to provide guidance on an important issue frequently encountered in cases involving infringement of rights to new plant varieties: how to determine whether two plants are of the same variety, when the related DNA fingerprinting test result falls between 0 (meaning the two plants are of the same variety) and 2 (meaning the two plants are of different varieties).

According to Guiding Case No. 92, when the test result is below 2, the allegedly infringing party, i.e., the defendant, has the burden to prove that the allegedly infringing plant is different from the plant for which variety rights have been granted. How did the court justify the shifting of the burden to the defendant, given that, in civil lawsuits, the burden of proof is generally borne by the plaintiff? The answer is provided in the “Reasons for the Adjudication” section of this Guiding Case.

Keywords

Civil
Infringement of Rights to a New Plant Variety
Appraisal of Maize Varieties
DNA Fingerprinting Test
Similar Varieties
Burden of Proof

Main Points of the Adjudication

[…]

Related Legal Rule(s)

Article 16 and Article 17 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

[…]

“[…] where, for commercial purposes, [a person] produces or sells the propagation material of a variety for which rights have been granted, without the permission of the variety rights-holder, this is an act of infringing on the rights to the new plant variety.”

[…]

“Considering various factors comprehensively, including the time, nature, and circumstances of the infringing act, [the court], in its discretion, determines that the compensation [should] be RMB 500,000 […].”

[…]

Appendix 1

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

[…]

Appendix 2

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

[…]

^† The citation of this piece is: The Editorial Board of SINOTALKS.COM, Guiding Case No. 92: Laizhou Jinhai Seeds Co., Ltd. v. Zhangye Fukai Agricultural Science and Technology Limited Liability Company, A Dispute over Infringement of Rights to a New Plant Variety, SINOTALKS.COM, SinoRules&Cases™, Dec. 1, 2021, https://sinotalks.com/sinorulescases/guiding-case-92. After being discussed and passed by the Adjudication Committee of the Supreme People’s Court, Guiding Case No. 92 was released on November 15, 2017.

This translation of Guiding Case No. 92 was prepared 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.