PLANT VARIETY RIGHTS IN CHINA

1¡¢Definition of New Plant Variety

A new plant variety is a cultivated plant variety or a developed one based on a discovered wild plant, which is new, distinct from the others, uniform and stable, and it is properly denominated.

2¡¢Kinds of right that the right holder may enjoy

The entity or the individual which/who has accomplished the breeding has an exclusive right to the corresponding protected variety. No other entity or individual shall, without the consent of the right holder, reproduce or sell the propagation material of the said protected variety for commercial purposes, or use the propagation material of the protected variety repeatedly in the production of the propagation material of another variety for commercial purposes.
Exceptions: under the following circumstances, no authorization and payment are required for the exploitation of the protected variety:

Exceptions: the exploitation of the protected variety shall not require authorization form, of payment of royalties to, the variety rights holder for the following purposes:

• exploitation of the protected variety for breeding and other scientific research activities;
• self-propagation and self-use by the farmers.

3¡¢Current Situation of PVR Protection

On March20, 1997, the State Council promulgated the 'Regulations of the People's Republic of China on the Protection of New Varieties of Plants'. Thereafter China deposited its instrument for accession to the 1978 Act of the UPOV Convention and became the 39th member State on April 23, 1999 of UPOV. On the same date, the Plant Variety Protection Office of the Ministry of Agriculture started to receive PVR applications domestically and internationally. By the end of August 2003, the total application number is 1061, which covers 22 plant genera and species, and the total granting number is 391.

4¡¢DUS Testing Institutes

To assist PVR examination, the Ministry of Agriculture established a DUS testing headquarters and 14 stations located all over the country, responsible for DUS testing of new plant varieties.

5¡¢List of Protected Genera and Species of Agricultural Plants

Field Crops: Oryza sativa L., Zea mays L., Solanum tuberrosum L.,Triticum aestivum L., Glycine max(L.)Merrill, Brassica napus L., Arachis hypogaea L., Ipomoea batatas (L.) Lam., Setaria italica (L.)Beauv., Sorghum bicolor(L.,)Moench, Hordeum L.,Boehmeria L.

Vegetable: Brassica campestris L.ssp.pekinensis (Lour.) olsson,Lycopersicon esculentum Mill., Cucumis sativus L., Capsicum L., Citrullus lanatus (Thunb.) Matsum et Nakai, Brassica oleracea L. var. capitata(L.)Alef.var.alba DC., Raphanus sativus L. var. Longipinnatus Bailey&Raphanus sativus L. var. radiculus Pers., Solanum melongena L.

Ornamentals: Cymbidium goeringii Rchb.F, Chrysanthemum L., Dianthus L., Gladiolus L., Medicago sativa L., Poa pratensis L., Rumex L., Cymbidium Sw., Lilium L., Strelitzia Ait., Limonium Mill., Gerbera jamesonii Bolus

Fruit Trees: Pyrus L., Prunus persica (L.) Batsch., litchi chinensis Sonn., Malus Mill., Citrus L., Musa acuminate Colla, Actinidia Lindl., Vitis L., Prunus salicina Lindl.&P. domestica L. &P. cerasifera Ehrh.

6¡¢Conditions for the Grant of Variety Rights

Distinctness means that the plant variety in respect of which variety rights are applied for must noticeable distinguish it from any other plant variety known prior to the filing of the application

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.

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.

Denomination: 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 of similar botanical genera or species.

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 trees 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.

Flexible provisions: the Ministry of Agriculture may grant variety rights where, within two years from the date of publication of the first list of protected genera and species of plants at the time of the entry into force of the Regulations and those added thereto in the subsequent lists after the entry into force of the Regulations, an application for variety rights is filed in request of the plant genera and species in the said lists, provided that the propagating materials of the variety in respect ofwhich variety rights are applied for have not been for sale, with the consent of the variety holder, for more than four years within the territory of China, and that the requirements for distinctness, uniformity, stability and the denomination are complied with.

7¡¢Nullity of variety rights: 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 of the Ministry of Agriculture may, ex officio or on the basis of a written request made by any entity or person, revoke the variety right in any variety that is not in conformity with the requirements for Novelty, Distinctness, Uniformity and Stability. The variety rights that have been revoked shall be deemed non-existent from the outset.

8¡¢Flow Chart of Procedures for PVR Examination and Granting

9¡¢Safeguard Rights