Viewpoint | Guiding Case Study: Disputes over New Plant Variety Rights
Published:
2023-12-21
This paper summarizes and collates the guiding cases (four in total) issued by the Supreme People's Court on disputes over new plant varieties.
[foreword]]
General Secretary Xi Jinping pointed out, "The five grains are the life of all people and the treasure of the country." "Hong Fan Bazheng, food is the head of government." The protection of new plant variety rights involves the people's "vegetable basket", "rice bag" and "fruit plate". Since the Supreme People's Court issued the first batch of guiding cases on November 20, 2011, the guiding cases concerning disputes over the rights of new plant varieties have provided a strong judicial guarantee for the country's "strategy of storing grain in technology. The judicial status of guiding cases is that "people's courts at all levels should refer to similar cases". Although the right to a new variety of plants is a type of intellectual property explicitly listed in Article 123 of the Civil Code, due to the limitation of the amount of class hours, the compulsory undergraduate course "Intellectual Property Law" often allows students to self-study this part of the content. Therefore, summarizing and sorting out the guiding cases (four in total) issued by the Supreme People's Court on disputes over new plant varieties is of value to both teachers and students of the school law department and the practice of fellow lawyers.
Guidance Case 86-Dispute over Infringement of New Plant Variety Rights between Tianjin Tianlong Seed Industry Technology Co., Ltd. and Jiangsu Xunong Seed Industry Technology Co., Ltd.
Referee Points
The two parties who hold the parent and the parent of the new plant variety respectively cannot reach a mutual authorization license agreement, resulting in the inability to continue the production of the new plant variety, harming the respective interests of both parties, and not in line with the purpose of cooperative breeding. Forsafeguard social and public interests, ensure national food security,To promote the transformation and implementation of new varieties of plants, to ensure that the new varieties that have been widely planted continue to be produced, and on the basis of measuring the basic value of the father and mother to the production of new varieties of plants, the people's court may directly order the parties to authorize each other and exempt each other from the corresponding license fees.
Related Case No.
Nanjing Intermediate People's Court (2009) Ning Min San Chu Zi No. 63 Civil Judgment
Nanjing Intermediate People's Court (2010) Ning Zhimin Chu Zi No. 69 Civil Judgment
Jiangsu Higher People's Court (2011) Su Zhimin Zhong Zi No. 194 Civil Judgment
Jiangsu Higher People's Court (2012) Su Zhimin Zhong Zi No. 55 Civil Judgment
Guiding Case No. 92-Laizhou Jinhai Seed Industry Co., Ltd. v. Zhangye Fukai Agricultural Science and Technology Co., Ltd. for Infringement of New Plant Variety Rights
Referee Points
According to the provisions of the the People's Republic of China agricultural industry standard "Maize Variety Identification DNA Fingerprint Method" NY/T1432-2007 detection and determination standard, the number of difference points between varieties is equal to 1, which is determined as an approximate variety, and the number of difference points between varieties is greater than or equal to 2, which is determined as a different variety. The number of differences between varieties is equal to 1, which is not enough to determine that they are not the same variety. If the number of difference points is less than two, other factors shall be combined to determine whether it is a different variety, such as the expansion of the detection site for additional testing, and the submission of approved samples for measurement, etc., the burden of proof shall be borne by the accused infringing party.
Related Case No.
Zhangye Intermediate People's Court (2012) Zhang zhong min Chu zi no 28 civil judgment
Gansu Provincial Higher People's Court (2013) Gan Min San Zhong Zi No. 63 Civil Judgment
Guidance Case No. 100-Shandong Denghai Xianfeng Seed Industry Co., Ltd. v. Shaanxi Nongfeng Seed Industry Co., Ltd. and Shanxi Dafeng Seed Industry Co., Ltd. for Infringement of New Plant Variety Rights
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 identification opinion is the same or similar, the accused infringer submits a DUS test report to prove that the alleged infringing variety is specific compared with the authorized variety through field planting, and it should be determined that it does not constitute an infringement of the new plant variety right.
Related Case No.
Xi 'an Intermediate People's Court (2014) Xizhong Min Si Chu Zi No. 132 Judgment
Higher People's Court (2015) Shan Min San Zhong Zi No. 1 Judgment
Supreme People's Court (2015) Min Shen Zi No. 2633 Ruling
Guidance Case No. 160-Cai Xinguang v. Guangzhou Runping Commercial Co., Ltd. Dispute over Infringement of New Plant Variety Rights
Referee Points
1. The reproductive materials of authorized varieties are the scope of protection of new plant variety rights and the basis for the exercise of exclusive rights by the variety owner. The scope of protection of authorized varieties is not limited to the propagation materials obtained in a specific way when applying for variety rights. Even if it is different from the propagation materials commonly used by breeders at the authorization stage of new plant variety rights, other plant materials that can be used for authorized variety propagation materials shall also be included in the scope of protection of new plant variety rights. 2. Plant material is recognized as the propagation material of an authorized variety, and the following requirements must be met at the same time: it belongs to the living body, has the ability to reproduce, and the new individual bred is the same as the characteristics of the authorized variety. Plant material can only be usedHarvesting materialsand cannot be usedbreeding materialIt does not fall within the scope of protection of new plant variety rights.
Related Case No.
Guangzhou Intellectual Property Court (2018) Yue 73 Min Chu Civil Judgment No. 732
Supreme People's Court (2019) Supreme Law Zhimin Zhong No. 14 Civil Judgment
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
