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中华人民共和国植物新品种保护条例 REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF PLANTS

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国务院令第213号
(Promulgated by Decree No. 213 of the State Council of the People's Republic of China on March 20,1997)
颁布日期:19970320  实施日期:19971001  颁布单位:国务院

  Chapter I GENERAL PROVISIONS

  Article 1 These Regulations are enacted 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 variety of plant referred to in these Regulations, means a cultivated variety, or a developed one based on a discovered wild plant, which possesses novelty, distinctness, uniformity and stability, and which is designated by an adequate denomination.

  Article 3 The administrative departments of agriculture and forestry under the State Council(hereinafter referred generally to as the “examining and approving authorities”) are jointly responsible, according to the division of their responsibilities, for the receipt and examination of application for rights in new varieties of plants(hereinafter referred to as “variety rights”), and for the grant of variety rights for those that conform to the provisions of these Regulations.

  Article 4 Any entity which or any person who has accomplished the breeding of a new variety that has a bearing on the national interests or the public interests, and is of great value for use, he or it shall be rewarded by the People's Governments above county level or the relevant departments under them.

  Article 5 The production, sale and dissemination of a new variety for which a variety right has been granted (hereinafter referred to ad the “protected variety”) is subject to review and approval in accordance with the provisions of relevant 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 enjoys an exclusive right on his or its protected variety. Except otherwise provided in these Regulations, no other entities or persons shall, without the authorization of the owner of the variety right (hereinafter referred to as the “variety right owner”), produce or sell for commercial purposes the propagating material of the said protected variety, or use repeatedly for commercial purposes the propagating material of the said protected variety in the production of the propagating material of another variety.

  Article 7 For service breeding accomplished by any person in execution of the tasks of the entity to which he belongs, or mainly by using the facilities of that entity, the right to apply for a variety right shall belong to the entity in question; for non-service breeding, the right to apply for such a variety right shall belong to the person accomplishing the breeding. Upon approval of the application, the variety right shall belong to the applicant.

  For commissioned breeding or jointly conducted breeding, the ownership of the variety right shall be agreed upon by the parties concerned in a contract; lacking of such a contract, the variety right shall belong to the entity which or person who commissioned to conduct or jointly conducted the breeding.

  Article 8 One new variety shall be granted only one set of variety right. Where two or more applicants apply separately for the variety right for the same new variety , the variety right shall be granted to the person whose application file first; in the case of simultaneous applications, the variety right shall be granted to the person who has first accomplished the breeding.

  Article 9 The right to apply for a variety right and the variety right in respect of a new variety may be assigned according to the law.

  Any assignment, by a Chinese entity or person, of the right to apply for a variety right or the variety right of the new variety bred in China, to a foreigner, must by approved by the examining and approving authorities.

  Any assignment within China, by a state-owned entity, of the right to apply for variety right or of the variety right, must be submitted in the light of the relevant national provisions for approval by the competent administrative departments concerned.

  Article 10 Without prejudice to other rights of the variety right owner under these Regulations, the exploitation of the protected variety may not require authorization from, or payment of royalties to, the variety right owner for the following purposes:

  (a) exploitation of the protected variety for breeding and other scientific research activities;

  (b) the use by farmers for propagating purposes, on their own holdings, of the propagating material of the protected variety which they have obtained by planting on their own holdings.

  Article 11 The examining and approving authorities may, in the national interests or the public interests, make decision to grant compulsory licenses to exploit new varieties of plants, which shall be registered and announced.

  The entity which or the person who is granted a compulsory license for exploitation shall pay to the variety right owner a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultation. Where the parties fail to reach an agreement, the examining and approving authorities shall adjudicate.

  Where the variety right owner is not satisfied with the decision to grant a compulsory license for exploitation or is not satisfied with the adjudication regarding the fee payable for exploitation, he or it may, within 3 months from the date of receiving the notification, institute legal proceedings in the People's Court.

  Article 12 Regardless of whether or not the term of 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 variety for which a variety right has been applied for shall be under the plant genera and species included in the national list of protected plant genera and species. This list of protected plant genera and species shall be determined and announced by the examining and approving authorities.

  Article 14 Any variety for which a variety right may be granted shall possess novelty. Novelty means that, at the date of filing of the application for a variety right, the propagating material of the new variety has not been sold, or with the authorization of the breeder, within the territory of China, earlier than 1 year before that date; in a territory other than China, earlier than 4 years , or in the case of vines, forest trees, fruit trees and ornamental plants, earlier than 6 years.

  Article 15 Any variety for which a variety right may be granted shall possess distinctness. Distinctness means that, the variety for which a variety right is applied for must be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the application.

  Article 16 Any variety for which a variety right may be granted shall possess uniformity. Uniformity means that the variety for which a variety right is applied for is sufficiently uniform in its relevant features or characteristics after propagation, subject to variation that may be expected from the particular features of its propagation.

  Article 17 Any variety for which variety right may be granted shall possess stability. Stability means that the variety for which a variety right is 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 variety for which variety right may be granted shall have an adequate denomination, which shall be distinguish able from that for any other known variety of the same or similar plant genera or species. The denomination, after its registration, shall be the generic designation of the new 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 or to cause confusion concerning the features or characteristics of the new variety, or identity of the breeder.

  Chapter IV APPLICATION FOR VARIETY RIGHTS AND RECEIPT THEREOF

  Article 19 Where any Chinese entity or person applies for a variety right, he or it may file an application with the examination and approving authorities directly or through an agency commissioned for the purpose.

  Where the new variety for which a Chinese entity and person applies for a variety right involves security or other vital interests of the state and therefore requires to be kept confidential, it shall be dealt with in accordance with the relevant prescriptions of the state.

  Article 20 Where any foreigner ,foreign enterprise or any other foreign institution files an application for a variety right in China, the application shall be 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 in accordance with any international convention to which both countries are party, or on the basis of the principle of reciprocity.

  Article 21 For the purpose of applying for a variety right, an application, specification and photographs of the variety conforming to the prescribed forms 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 application documents shall be the date of filing. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.

  Article 23 Where, within 12 months from the date on which any applicant has first filed in a foreign country an application for a variety right, the said applicant files an application for a variety right in China for the same new variety, he or it may, in accordance with any agreement concluded between the said foreign country and the People's of Republic of China, or in accordance with any international treaty to which both countries are party, or on 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 submit, within 3 months, a copy of the variety right application that was 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 application according to 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 right application conforms to Article 21 of these Regulations, the examining and approving authorities shall accept it, establish the date of filing, assign a filing number and serve a notice on the applicant within 1 month from the receipt of the application to pay an application fee.

  Where the variety right application dose 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 right application at any time before the variety right is granted.

  Article 26 Any variety right application, filed by a Chinese entity or person with a foreign county for a new variety bed 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 right application of the following items:

  (a) whether it is under the plant genera or species included in the list of protected plant genera or species;

  (b) whether it conforms to the provisions of Article 20 of these Regulations;

  (c) whether it conforms to the provisions on novelty;

  (d) whether the denomination of the new variety is adequate.

  Article 28 The examining and approving authorities shall complete the preliminary examination within 6 months from the date that the variety right application is accepted. Where the variety right application is found acceptable on preliminary examination, the examination and approving authorities shall have it announced and serve a notice on the applicant to pay the examination fee within 3 months.

  where the variety tight 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 on the distinctness, uniformity and stability of the variety right application.

  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 the basis of application documents and other relevant written information. Where they deem it necessity, the examining and approving authorities may entrust a designated testing institution with undertaking tests or may inspect the results of breeding 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 variety in question.

  Article 31 Where the variety right application is found to be in conformity with the provisions of these Regulations, the examining and approving authorities shall make a decision to grant the variety right, issue the variety right title, and have it registered and announced.

  Where, after substantive examination, the variety right application is found not to be in conformity with the provisions of these Regulations, the examining and approving authorities shall refuse the application and notify the applicant accordingly.

  Article 32 The examining and approving authorities shall setup Variety Right Re-examination Boards.

  Where any applicant is not satisfied with the decision of the examining and approving authorities refusing the variety right application, that applicant may, within 3 months from the date of receiving the notification, request the Variety Right Re-examination Board to carry out a re-examination. The Variety Right Re-examination Board shall, within 6 months from the date of receiving the request for re-examination, make a decision and notify the applicant accordingly.

  Where any applicant is not satisfied with the decision of the Variety Right Re-examination Board, that applicant may, within 15 days from the date of receiving the notification, institute legal proceedings in the People's Court.

  Article 33 After the variety right has been granted, any entity which or person who, during the period beginning from the date on which an acceptable application is announced on preliminary examination and ending on the date of grant of variety rights, had produced or sold the propagating material of the variety in question for commercial purposes without his authorization of the variety right owner, the variety right owner is entitled to claim compensation.

  Chapter VI TERM, TERMINATION AND NULLITY OF VARIETY RIGHTS

  Article 34 The term of protection of a variety right, 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 right owner shall pay an annual fee from the year in which the variety right is granted, and shall furnish propagating material of the protected variety for the purposes of testing as required by the examining and approving authorities.

  Article 36 The variety right shall be terminated prior to its expiration in any of the following cases:

  (a) where the variety right owner makes a written statement renouncing his or its variety right;

  (b) where the variety right owner has not paid the annual fee as prescribed;

  (c) where the variety right owner has not furnished, in the manner required by the examining and approving authorities, such propagating material of the protected variety necessary for testing;

  (d) where, on testing, the protected variety no longer conforms to the features and characteristics that existed at the time of the grant of the variety right.

  The termination of the variety right shall be registered and announced by the examining and approving authorities.

  Article 37 From the date on which the examining and approving authorities announce the grant of any variety right, the Variety Right Re-examination Board may, ex officio or on the basis of a written request made by any entity or person, declare the variety right null and void, when the variety 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 of nullity of the variety right and the decision to change the denomination shall be registered and announced by the examining and approving authorities, and shall be notified to the parties concerned.

  Where any party is not satisfied with the decision of the Variety Right Re-examination Board, he or it may, within 3 months from the date of receiving such notification , institute legal proceedings in the People's Court.

  Article 38 Any variety right that has been declared null and void shall be deemed non-existent from the outset.

  The decision of nullity of a variety right shall have no retroactive effect on any judgment or order on variety right infringement pronounced and enforced by the People's Court, or on any decision on variety right infringement made and enforced by the administrative departments of agriculture and forestry of the People' Governments above provincial level, or on any executed license contract for exploitation of a new variety or any executed contract of assignment of a variety right. However, any damage caused to any other person in bad faith on the part of the variety right owner shall be equitably compensated.

  If, pursuant to the provisions of the preceding paragraph, no repayment of the fees for the exploitation of the new variety or of the price for the assignment of the variety right, is made by the variety right owner or the assignor of the variety right to the licensee or the assignee, which is obviously contrary to the principle of equity, the variety right owner or the assignor of the variety right shall repay the whole or part of the exploitation fee or of the assignment fee to the licensee or the assignee.

  Article 39 Where the propagating material of the protected variety is produced or sold for commercial purposes without the authorization of the variety right owner, the variety right owner or the party having an interest therein may, request the administrative departments of agriculture and forestry of the People's Governments above provincial level to handle it in accordance with their respective competence, or directly institute legal proceedings in the People's Court.

  The administrative departments of agriculture and forestry of the people's Governments above provincial level 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 right owner or the party having an interest therein may institute legal proceedings in the People's Court according to civil action procedures.

  In handling cases of variety right infringements in accordance with their respective competence, the administrative departments of agriculture and forestry of the People's Governments above provincial level may, for the purposes of safeguarding the public interests, order the in fringer to stop the infringing act, confiscate the unlawful earnings and impose a fine not exceeding five times of the unlawful earnings.

  Article 40 Where any variety counterfeits as a protected variety, the administrative departments of agriculture and forestry of the People's Governments above county level shall order the party concerned to stop the counterfeiting act, confiscate the unlawful earnings and the propagating material of the variety, and impose a fine at least one time but not exceeding five times of 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 in accordance with the law.

  Article 41 The administrative departments of agriculture and forestry of the People's Governments above provincial level in handling cases concerning variety right infringements in accordance with their respective competence, and the administrative departments of agriculture and forestry of the People's Governments above county level in handling cases concerning counterfeiting protected variety in accordance with their respective competence, may, as necessary, seal up or detain the propagating material of the 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 its registered denomination, the administrative departments of agriculture and forestry of the People's Governments above county level shall, in accordance with their respective competence, order a correction within a specified period, and may impose a fine not exceeding 1,000 Yuan.

  Article 43 Where disputes arises as to the right to apply for a variety right and the ownership of the variety right, the parties concerned may institute legal proceedings in the People's Court.

  Article 44 Where any staff member of the administrative departments of agriculture and forestry of the People's Governments above county level and of other relevant departments abuses his power, neglects his duty, engages in any malpractice for private gain, or extorts or receives bribes, he shall be subjected to criminal liability in accordance with the law if he is guilty of a crime; or he shall be punished with disciplinary sanctions in accordance with the law if he is not guilty of a crime.

  Chapter VII SUPPLEMENTARY PROVISIONS

  Article 45 The examining and approving authorities may provide for flexible provision on the conditions of novelty for the plant genera or species first included in the list of protected plant genera and species before the entry into force of these Regulations or for ones newly included in the list after the entry into force of these Regulations.

  Article 46 These Regulations shall enter into force as from October 1, 1997.

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