Viewpoint... Communiqué case study of new plant variety rights disputes.
Published:
2024-01-12
The report of the 20th National Congress of the Communist Party of China proposed to "consolidate the foundation of food security in an all-round way and ensure that the rice bowls of the Chinese people are firmly in their own hands". New plant varieties are closely related to food security, and strengthening the protection of new plant varieties rights is to maintain food security. Bulletin cases refer to cases published in the Bulletin of the Supreme People's Court. Now we summarize and sort out the communique cases (four in total) issued by the Supreme People's Court on disputes over new plant varieties, which are of reference value to the study of teachers and students of law majors in schools and the practice of lawyers.
The report of the 20th National Congress of the Communist Party of China proposed to "consolidate the foundation of food security in an all-round way and ensure that the rice bowls of the Chinese people are firmly in their own hands". New plant varieties are closely related to food security, and strengthening the protection of new plant varieties rights is to maintain food security. Bulletin cases refer to cases published in the Bulletin of the Supreme People's Court. Now we summarize and sort out the communique cases (four in total) issued by the Supreme People's Court on disputes over new plant varieties, which are of reference value to the study of teachers and students of law majors in schools and the practice of lawyers.
No. 10, 2023-Hunan Yahua Seed Industry Research Institute v. Zhang Yang Dispute over New Plant Varieties
Referee Points
If the unauthorized use of the reproductive material of the authorized variety is repeatedly used to produce the reproductive material of another variety, on the basis of the kinship between the accused infringing seed and the authorized variety, whether the authorized variety is used as the female parent to produce the accused infringing seed, the infringing party shall bear the burden of proof. "Reuse" in the alleged tort is to be understood as the repetition of the act of separately breeding with other parents using the breeding material of the authorized variety as the parent.
Related Case No.
Hainan Free Trade Port Intellectual Property Court (2021) Qiong 73 Zhimin Chu 1
2023 No. 03-Dispute over Infringement of Technical Secrets between Hebei Huasui Seed Industry Co., Ltd. and Wuwei Bosheng Seed Industry Co., Ltd.
Referee Points
As the breeding intermediate material formed in the breeding process, the inbred line parent, etc., is different from the plant material found in nature, is the intellectual achievement of the creative work of the breeder, has the characteristics of both technical information and carrier material, and the two are inseparable. Breeding materials with commercial value obtained through breeding innovation activities can be protected by law as trade secrets under the conditions that they are not known to the public and corresponding confidentiality measures are taken.
The growth of breeding materials depends on soil, water, air and sunlight, and field management is required. It is difficult for the obligee to ensure that the confidentiality measures of the crop are foolproof. Whether the confidentiality measures are reasonable or not needs to consider the characteristics of the breeding materials themselves, and it is appropriate to prevent leakage under normal circumstances. The designation of a confidentiality system, the signing of a confidentiality agreement, the prohibition of external proliferation, and the use of code names for reproductive materials may constitute reasonable confidentiality measures under specific circumstances.
Related Case No.
Lanzhou Intermediate People's Court (2020) Gan 01 Zhimin Chu 61
Supreme People's Court (2022) Supreme Law Zhimin Zhong No. 147
No. 07 of 2020-Jiangsu Gaoke Seed Industry Technology Co., Ltd. v. Nantong Grain and Cotton Original Seed Farm
Referee Points
The system of "early publicity and delayed examination" shall be implemented for new plant varieties. After the variety right is granted, the variety right holder, in accordance with Article 33 of the Regulations on the Protection of New Plant Varieties, claims to produce and sell authorized varieties for commercial purposes without the applicant's permission during the period from the date of publication of the application for new plant varieties to the date of the authorization announcement. If the unit or individual pays the use fee, the people's court may comprehensively consider the relevant factors such as the license fee for the implementation of new plant varieties, the variety, the variety, the type and value, and the business scale, and the scale of the business.
Related Case No.
Nanjing Intermediate People's Court (2016) Su 01 Civil Judgment No. 396
Jiangsu Higher People's Court (2017) Su Minzong No. 58
No. 12 of 2016-Shandong denghai pioneer seed industry co., ltd. and Shaanxi nongfeng seed industry co., ltd. and Shanxi dafeng seed industry co., ltd. over infringement of new plant variety rights [guiding case no 100]]
Referee Points
Judging that the characteristic characteristics of the accused infringing reproductive material are the same as the characteristic characteristics of the authorized variety is the premise of determining the infringement of the new plant variety right. When the DNA fingerprint test conclusion is the same or similar, and the DUS test of field planting determines that the two have obvious and reproducible differences, and its specific conclusion is different from the DNA fingerprint test conclusion, the DUS test conclusion of field planting should be determined not to constitute infringement of the right of new plant varieties.
Related Case No.
Xi 'an Intermediate People's Court (2014) Xizhong Min Si Chu Zi No. 132 Judgment
Shaanxi Higher People's Court (2015) Shaanxi Min San Zhong Zi No. 1 Judgment
Supreme People's Court (2015) Min Shen Zi No. 2633 Ruling
No. 02 of 2010-Jiangsu Lixiaihe Regional Agricultural Science Research Institute v. Baoying Tianbu Agricultural Material Management Co., Ltd. Dispute over Infringement of New Plant Variety Rights
Referee Points
The principle of exhaustion of rights in intellectual property rights means that after an intellectual property right holder such as a patentee, trademark owner or copyright owner produces, manufactures or licenses another person to produce or manufacture the right product, the use or sale of the product by a third party is not regarded as infringement. The principle of exhaustion of rights is a system of restrictions on the exercise of intellectual property rights, with the aim of avoiding the formation of excessive monopoly, hindering the free market circulation of products, affecting the development and progress of social production, and at the same time protecting the property rights legally owned by others in accordance with the law. The principle of exhaustion of rights applies to the protection of new plant variety rights in China, and it does not constitute infringement if another person legally obtains the breeding materials of new plant varieties as commodities in the market and then sells or uses them.
Related Case No.
Nanjing Intermediate People's Court (2008) Ning Min San Chu Zi No. 26
Jiangsu Higher People's Court (2008) Su Min San Zhong Zi No. 0220
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