(As published in PVP Gazette, Issue No. 85, October 1999) REGULATIONS
OF THE PEOPLE’S REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF PLANTS
CHAPTER I
GENERAL PROVISIONS
Article 1
These Regulations are formulated to protect the rights in new varieties of plants, to encourage the breeding and use of new varieties of plants, and to promote the development of agriculture and forestry.
Article 2
The new plant variety referred to in these Regulations 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.
Article 3
The administrative departments of agriculture and forestry under the State Council (both referred to hereinafter as the “examining and approving authorities”) are jointly responsible, according to the division of their job responsibilities, for the receipt and examination of applications for rights in new varieties of plants, and for the grant of rights in new varieties of plants (hereinafter referred to as “variety rights”) in respect of those new varieties of plants that conform to the provisions of these Regulations.
Article 4
The people’s governments at county level or above or other relevant departments shall reward the entity which or the person who has accomplished the breeding of a new plant variety that has a bearing on the national or the public interest, and is of great value for use.
Article 5
The production, sale and dissemination of a new plant variety in respect of which variety rights have been granted (hereinafter referred to as the “protected variety”) is subject to review and approval under the provisions of relevant national laws and regulations on seeds.
CHAPTER II
CONTENT AND OWNERSHIP OF VARIETY RIGHTS
Article 6
The entity which or the person who has accomplished the breeding has an exclusive right in their protected variety. Except otherwise provided in these Regulations, no other entity or person shall, without the consent of the holder of the variety rights (hereinafter referred to as the “variety rights holder”), produce or sell for commercial purposes the propagating material of the said protected variety, or use for commercial purposes the propagating material of the protected variety in a repeated manner in the production of the propagating material of another variety.
Article 7
In the case of job-related breeding accomplished by any person in undertaking tasks for the entity to which he belongs, or primarily by using the facilities of that entity, the right to file an application for variety rights in respect of the new plant variety shall belong to the entity in question; for breeding that is not job-related, the right to file such an application shall belong to the person accomplishing the breeding. Upon approval of the application, the variety rights shall belong to the applicant.
For commissioned breeding or jointly-conducted breeding, the ownership of the variety rights shall be agreed upon by the parties in a contract; failing such an event, the variety rights shall belong to the entity or person commissioned to conduct or jointly conducting the breeding.
Article 8
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.
Article 9
The right to file an application for variety rights in respect of a new plant variety and the variety rights may be assigned in accordance with the law.
If a Chinese entity or person wishes to assign to a foreigner the right to file an application or the variety rights in respect of a new plant variety bred in China, such assignment shall be approved by the examining and approving authorities.
In the case of an assignment within China of the right to file an application or of the variety rights by a State-owned entity, it shall be submitted in accordance with the relevant national regulations for approval by the competent administrative departments concerned.
The parties involved in the assignment of the right to file an application or of the variety rights shall conclude a written contract, and shall register the assignment before the examining and approving authorities, which in turn shall published the assignment.
Article 10
Without prejudice to other rights of the variety rights holder under these Regulations, the exploitation of the protected variety shall not require authorization from, or payment of royalties to, the variety rights holder for the following purposes:
(i) exploitation of the protected variety for breeding and other scientific research activities;
(ii) the use for propagating purposes by farmers, on their own holdings, of the propagating material of the protected variety harvested on their own holdings.
Article 11
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.
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.
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.
Article 12
Regardless of whether or not the term of the protection of the protected variety has expired, the denomination of the protected variety as used in its registration must be used for sales thereof.
CHAPTER III
CONDITIONS FOR THE GRANT OF VARIETY RIGHTS
Article 13
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.
Article 14
Any plant variety in respect of which variety rights are granted shall have the characteristic 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.
Article 15
Any plant variety in respect of which variety rights are granted shall have the characteristic of distinctness. 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.
Article 16
Any plant variety in respect of which variety rights are granted shall have the characteristic of uniformity. 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.
Article 17
Any plant variety in respect of which variety rights are granted shall have the characteristic of stability. 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.
Article 18
Any plant variety in respect of which variety rights are granted shall have an adequate denomination, which shall be distinguishable from that for any other known plant variety of the same or similar botanical genus or species. The denomination, after its registration, shall be the generic designation of the new plant variety in question.
The following shall be avoided in the selection of a denomination for a new variety:
(a) those consisting of only numbers;
(b) those violating social morals;
(c) those that are liable to mislead as to the features or characteristics of the new plant variety, or the identity of the breeder.
CHAPTER IV
APPLICATION FOR VARIETY RIGHTS AND RECEIPT THEREOF
Article 19
Where Chinese entities and persons apply for variety rights, they may file an application with the examining and approving authorities directly or through a representative agency commissioned for the purpose.
Where the new plant variety in respect of which Chinese entities and persons apply for variety rights involves national security or major interests and therefore needs to be kept confidential, it shall be dealt with in accordance with the relevant national regulations.
Article 20
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.
Article 21
For the purposes of applying for variety rights, an application and specification conforming to the prescribed forms as well as a photograph of the variety shall be submitted to the examining and approving authorities.
The application documents shall be written in Chinese. Article 22
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.
Article 23
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.
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.
Article 24
Where the variety rights application conforms to Article 21 of the Regulations, the examining and approving authorities shall accept it, assign the filing date and a filing number and serve notice on the applicant within one month from the receipt of the application to pay an application fee.
Where the variety rights application does not, or after amendment still does not, conform to Article 21 of the Regulations, the examining and approving authorities shall not accept it and shall notify the applicant accordingly.
Article 25
An applicant may amend or withdraw his or its variety rights application at any time before the variety rights are granted.
Article 26
Any application filed by a Chinese entity or person with a foreign country for variety rights in respect of a new plant variety that has been bred in China shall be registered before the examining and approving authorities.
CHAPTER V
EXAMINATION AND APPROVAL OF VARIETY RIGHTS
Article 27
Upon payment of the application fee, the examining and approving authorities shall carry out a preliminary examination on the variety rights application to determine the following:
(a) whether it is part of the botanical genera or species included in the list of protected plant varieties;
(b) whether it conforms to the provisions of Article 20 of the Regulations;
(c) whether it conforms to the provisions on novelty;
(d) whether the denomination of the new plant variety is adequate.
Article 28
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.
Where the variety rights application is found unacceptable on preliminary examination, the examining and approving authorities shall invite the applicant to state his observations or make amendments; where an applicant fails to respond within the time limit or the application is still unacceptable after amendment, the application shall be refused.
Article 29
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.
Where the applicant has not paid the prescribed examination fee, the variety rights application shall be deemed to have been withdrawn.
Article 30
The examining and approving authorities shall conduct the substantive examination on the basis of application documents and other relevant written information. Where they deem it necessary, the examining and approving authorities may entrust a designated testing institution with undertaking tests or with inspecting the results of growing tests or other trials that have already been carried out.
For the purposes of examination, the applicant shall, at the request of the examining and approving authorities, furnish necessary information and the propagating material of the new plant variety in question.
Article 31
Where the variety rights application is found to be in conformity with the provisions of these Regulations on substantive examination, the examining and approving authorities shall take a decision to grant the variety rights, issue the new variety rights title, and have it registered and published.
Where the variety rights application is found not to be in conformity with the provisions of these Regulations on substantive examination, the examining and approving authorities shall refuse the application and notify the applicant accordingly.
Article 32
The examining and approving authorities shall set up a Re-Examination Board for New Varieties of Plants.
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. 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.
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.
Article 33
After the variety rights have been granted, for the period beginning on the date on which an acceptable application is published on preliminary examination and ending on the date of grant of variety rights, the variety rights holder is entitled to claim compensation from an entity which, and an
person who, has produced or sold the propagating material of the protected variety in question for commercial purposes without his consent.
CHAPTER VI
TERM, TERMINATION AND INVALIDITY
Article 34
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.
Article 35
The variety rights holder shall pay annual fees from the year in which the variety rights are granted, and shall furnish propagating material of the protected variety for the purposes of control as required by the examining and approving authorities.
Article 36
Variety rights shall be terminated prior to the expiration of the term thereof in any of the following cases:
(a) where the variety rights holder makes a written statement renouncing his variety right;
(b) where the variety rights holder has not paid the annual fees as prescribed;
(c) where the variety rights holder has not furnished, in the manner required by the examining and approving authorities, such propagating material of the protected variety necessary for control;
(d) where, on control, the protected variety no longer conforms to the features and characteristics that existed when the variety rights were granted.
The termination of the variety rights shall be registered and published by the examining and approving authorities.
Article 37
From the date on which the examining and approving authorities publish the grant of variety rights, the Re-Examination Board for New Varieties of Plants may, ex officio or on the basis of a written request made by any entity or person, revoke the variety rights in any variety that is not in conformity with the provisions of Articles 14, 15, 16 and 17 of these Regulations, or change the denomination of any variety that is not in conformity with the provisions of Article 18 of these Regulations. The decision to revoke variety rights and the decision to change the denomination shall be registered and published by the examining and approving authorities, and shall be communicated to the parties concerned.
Where any party is not satisfied with the decision of the Re-Examination Board for New Varieties of Plants, he or it may, within three months from the date of receiving such communication, file a suit with the People’s Court.
Article 38
The variety rights that have been revoked shall be deemed non-existent from the outset.
The decision to revoke variety rights shall have no retroactive effect on any judgment or ruling pronounced and enforced by the People’s Court concerning the infringement of a new plant variety, or on any decision made and enforced by the administrative departments of agriculture and forestry of the People’s Governments at provincial level or above concerning the infringement of a new plant variety, or on any executed license contract for exploitation of a new plant variety or any executed contract of assignment of the rights in a new plant variety. However, any damage caused to any other person due to bad faith on the part of the variety rights holder shall be equitably compensated.
If no repayment of the fees for the exploitation of the new plant variety or of the price for the assignment of the variety rights, pursuant to the provisions of the preceding paragraph, is made by the variety rights holder or the assignor of the variety rights to the licensee or the assignee, and if this is obviously contrary to the principle of equity, the variety rights holder or the assignor of the variety rights shall repay the whole or part of the fees for the exploitation of the variety or of the price for assignment of the variety rights to the licensee or the assignee.
CHAPTER VII
PENALTY PROVISIONS
Article 39
Where the propagating material of the protected variety is produced or sold for commercial purposes without the consent of the variety rights holder, the variety rights holder or the party having an interest therein may request the administrative departments of agriculture and forestry of the People’s Governments at provincial level or above to handle it in accordance with their respective competence, or directly file a suit with the People’s Court.
The administrative departments of agriculture and forestry of the People’s Governments at provincial level or above may, according to their respective competence and based on the principle of free will of the parties, mediate the compensation of damages caused by the infringement. Where accord has been reached through mediation, it should be executed by the parties concerned; where no accord has been reached through mediation, the variety rights holder or the party having an interest therein may file a suit with the People’s Court according to civil action procedures.
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.
Article 40
Where any new plant variety is counterfeited, the administrative departments of agriculture and forestry of the People’s Governments at county level or above shall order the party concerned to stop the counterfeiting act, confiscate the unlawful earnings and the propagating material of the plant variety, and punish him 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.
Article 41
Both the administrative departments of agriculture and forestry of the People’s Governments at provincial level or above in handling cases concerning infringement of variety rights in accordance with their respective competence, and the administrative departments of agriculture and forestry of the People’s Governments at county level or above in handling cases concerning counterfeited variety rights in accordance with their respective competence, may, as appropriate, seal up or detain the
propagating material of the plant variety relevant to the cases, have access to, make copies of and seal up contracts, account books and other relevant documents related to the cases.
Article 42
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.
Article 43
Where disputes arise as to the right to apply for a new variety of plant and the ownership of the variety rights, the parties concerned may file a suit with the People’s Court.
Article 44
Where any staff member of the administrative departments of agriculture and forestry of the People’s Governments at county level or above and of other departments abuses his power, neglects his duty, engages in any malpractice for private gain, or extorts or receives bribes, that staff member shall be subjected to criminal liability investigation in accordance with the law if the case constitutes a crime; or he shall be punished with administrative sanctions in accordance with the law if it does not constitute a crime.
CHAPTER VIII
SUPPLEMENTARY PROVISIONS
Article 45
The examining and approving authorities may provide for flexible provisions on novelty requirement for the genera or species first included in the list of protected plant varieties before the entry into force of these Regulations and that for the genera or species included in the list of protected plant varieties after the entry into force of the Regulations.
Article 46
These Regulations shall enter into force as from October 1, 1997.
中华人民共和国国务院令 第２１３号
现发布《植物新品种保护条例》，自１９９７年１０月１日起施行。 总理 李鹏 １９９７年３月２０日 中华人民共和国植物新品种保护条例 第一章 总则 第一条 为了保护植物新品种权，鼓励培育和使用植物新品种，促进农业、林业 的发展，制定本条例。 第二条 本条例所称植物新品种，是指经过人工培育的或者对发现的野生植物加以开发，具备新颖性、特异性、一致性和稳定性 并有适当命名的植物品种。 第三条 国务院农业、林业行政部门（以下统称审批机关）按照职责分工共同负责植物新品种权申请的受理和审查并对符合 本条例规定的植物新品种授予植物新品种权（以下称品种权）。 第四条 完成关系国家利益或者公共利益并有重大应用价值的植物新品种育种的单位或 者个人，由县级以上人民政府或者有关部门给予奖励。 第五条 生产、销售和推广被授予品种权的植物新品种（以下称授权品种），应当按照国家有关 种子的法律、法规的规定审定。 第二章 品种权的内容和归属 第六条 完成育种的单位或者个 人对其授权品种，享有排他的独占权。任何单位或者个人未经品种权所有人（以下称品种权人）许可，不得为商业目的生产或者销售该授权品种的繁殖材料，不得为 商业目的将该授权品种的繁殖材料重复使用于生产另一品种的繁殖材料；但是，本条例另有规定的除外。 第七条 执行本单位的任务或者主要是利用本 单位的物质条件所完成的职务育种，植物新品种的申请权属于该单位；非职务育种，植物新品种的申请权属于完成育种的个人。申请被批准后，品种权属于申请人。 委托育种或者合作育种，品种权的归属由当事人在合同中约定；没有合同约定的，品种权属于受委托完成或者共同完成育种的单位或者个人。 第八条 一个植物新品种只能授予一项品种权。两个以上的申请人分别就同一个植物新品种申请品种权的，品种权授予最先申请的人；同时申请的，品种权授予最先完成该 植物新品种育种的人。 第九条 植物新品种的申请权和品种权可以依法转让。 中国的单位或者个人就其在国内培育的植物新品种向外国人 转让申请权或者品种权的，应当经审批机关批准。 国有单位在国内转让申请权或者品种权的，应当按照国家有关规定报经有关行政主管部门批准。 转让申请权或者品种权的，当事人应当订立书面合同，并向审批机关登记，由审批机关予以公告。 第十条 在下列情况下使用授权品种的，可以不经 品种权人许可，不向其支付使用费，但是不得侵犯品种权人依照本条例享有的其他权利： （一）利用授权品种进行育种及其他科研活动； （二）农民自繁自用授权品种的繁殖材料。 第十一条 为了国家利益或者公共利益，审批机关可以作出实施植物新品种强制许可的决定，并予以登记和 公告。 取得实施强制许可的单位或者个人应当付给品种权人合理的使用费，其数额由双方商定；双方不能达成协议的，由审批机关裁决。 品种权人对强制许可决定或者强制许可使用费的裁决不服的，可以自收到通知之日起３个月内向人民法院提起诉讼。 第十二条 不论授权品种的保护期 是否届满，销售该授权品种应当使用其注册登记的名称。 第三章 授予品种权的条件 第十三条 申请品种权的植物新品种应当属于国家植物品种保护名录中列举的植物的属或者种。植物品种保护名录由审批机关确定和公布。 第十四条 授予品种 权的植物新品种应当具备新颖性。新颖性，是指申请品种权的植物新品种在申请日前该品种繁殖材料未被销售，或者经育种者许可，在中国境内销售该品种繁殖材料 未超过１年；在中国境外销售藤本植物、林木、果树和观赏树木品种繁殖材料未超过６年，销售其他植物品种繁殖材料未超过４年。 第十五条 授予品 种权的植物新品种应当具备特异性。特异性，是指申请品种权的植物新品种应当明显区别于在递交申请以前已知的植物品种。 第十六条 授予品种权的 植物新品种应当具备一致性。一致性，是指申请品种权的植物新品种经过繁殖，除可以预见的变异外，其相关的特征或者特性一致。 第十七条 授予品 种权的植物新品种应当具备稳定性。稳定性，是指申请品种权的植物新品种经过反复繁殖后或者在特定繁殖周期结束时，其相关的特征或者特性保持不变。 第十八条 授予品种权的植物新品种应当具备适当的名称，并与相同或者相近的植物属或者种中已知品种的名称相区别。该名称经注册登记后即为该植物新品种的 通用名称。 下列名称不得用于品种命名： （一）仅以数字组成的； （二）违反社会公德的； （三）对植物新品 种的特征、特性或者育种者的身份等容易引起误解的。 第四章 品种权的申请和受理 第十九条 中国的单位和个人申请品种权的，可以直接或者委托代理机构向审批机关提出申请。 中国的单位和个人申请品种权的植物新品种涉及国家安全或者重 大利益需要保密的，应当按照国家有关规定办理。 第二十条 外国人、外国企业或者外国其他组织在中国申请品种权的，应当按其所属国和中华人民共 和国签订的协议或者共同参加的国际条约办理，或者根据互惠原则，依照本条例办理。 第二十一条 申请品种权的，应当向审批机关提交符合规定格式 要求的请求书、说明书和该品种的照片。 申请文件应当使用中文书写。 第二十二条 审批机关收到品种权申请文件之日为申请日；申请文 件是邮寄的，以寄出的邮戳日为申请日。 第二十三条 申请人自在外国第一次提出品种权申请之日起１２个月内，又在中国就该植物新品种提出品种权 申请的，依照该外国同中华人民共和国签订的协议或者共同参加的国际条约，或者根据相互承认优先权的原则，可以享有优先权。 申请人要求优先权 的，应当在申请时提出书面说明，并在３个月内提交经原受理机关确认的第一次提出的品种权申请文件的副本；未依照本条例规定提出书面说明或者提交申请文件副 本的，视为未要求优先权。 第二十四条 对符合本条例第二十一条规定的品种权申请，审批机关应当予以受理，明确申请日、给予申请号，并自收到申 请之日起１个月内通知申请人缴纳申请费。 对不符合或者经修改仍不符合本条例第二十一条规定的品种权申请，审批机关不予受理，并通知申请人。 第二十五条 申请人可以在品种权授予前修改或者撤回品种权申请。 第二十六条 中国的单位或者个人将国内培育的植物新品种向国外申请品种权 的，应当向审批机关登记。 第五章 品种权的审查与批准 第二十七条 申请人缴纳申请费后， 审批机关对品种权申请的下列内容进行初步审查： （一）是否属于植物品种保护名录列举的植物属或者种的范围； （二）是否符合本条例 第二十条的规定； （三）是否符合新颖性的规定； （四）植物新品种的命名是否适当。 第二十八条 审批机关应当自受理品 种权申请之日起６个月内完成初步审查。对经初步审查合格的品种权申请，审批机关予以公告，并通知申请人在３个月内缴纳审查费。 对经初步审查不 合格的品种权申请，审批机关应当通知申请人在３个月内陈述意见或者予以修正；逾期未答复或者修正后仍然不合格的，驳回申请。 第二十九条 申请 人按照规定缴纳审查费后，审批机关对品种权申请的特异性、一致性和稳定性进行实质审查。 申请人未按照规定缴纳审查费的，品种权申请视为撤回。 第三十条 审批机关主要依据申请文件和其他有关书面材料进行实质审查。审批机关认为必要时，可以委托指定的测试机构进行测试或者考察业已完成的种植或者 其他试验的结果。 因审查需要，申请人应当根据审批机关的要求提供必要的资料和该植物新品种的繁殖材料。 第三十一条 对经实质审查 符合本条例规定的品种权申请，审批机关应当作出授予品种权的决定，颁发品种权证书，并予以登记和公告。 对经实质审查不符合本条例规定的品种权