Protecting New Plant Varieties in China and Its Major Problems
Jan. 3, 2020
China has achieved remarkable results for the protection of new plant varieties since it promulgated and implemented “Regulations for the Protection of New Plant Varieties” in 1997. However, as a whole, the level of legislation is still at an early stage, primarily referencing to the UPOV Convention and the legal content of other countries. The legislation has not yet set up the ultimate goal and reasonable protection measures that would meet China’s current actual needs. The chapter discusses the status of protection of new plant varieties in China and characteristics. It then analyzes the major deficiencies and shortcomings of existing laws and explores the main reasons behind. This chapter proposes a number of specific measures for perfecting the legal system for the protection of new plant varieties in China before it ends with a conclusion.
1 Status of Protection of New Plant Varieties in China
1.1 The General Background
China is one of the oldest civilizations in the world and has a vast territory. From north to south, it spans the cold temperate zone, temperate zone, warm temperate zone, subtropical zone, and tropical zone. There is a large variety of plants growing on this vast land. According to scientific investigation, there are more than 30,000 kinds of higher plants in China, ranking third after Brazil and Colombia. This rich plant resource has laid a solid foundation for the cultivation of new plant varieties in China and for the enhancement of the protection of new plant varieties.
In the long historical development of China, the hardworking and wise Chinese farmers have domesticated and cultivated a large number of plant species and applied them to agricultural production. In modern breeding, workers continue to cultivate a large number of new varieties. Since the founding of the People’s Republic of China (PRC) in 1949, China’s crop varieties have been updated for several generations, which have made important contributions to China’s improving varieties and increasing yields. In particular, Academician Yuan Longping, the father of the well-known rice breeding in China, has made outstanding contributions to the world’s breeding business and helped solving the basic human need for food.
Under the background of this breeding history and breeding scale, China promulgated the Regulations for the Protection of New Plant Varieties in 1997 and began to introduce and implement a legal system for the protection of new plant varieties in China, which has its origin in the 1941 Breeders Ordinance of the Netherlands. Its central content is the protection of breeder rights, which enables breeders to derive economic benefits from the commercial exploitation of new plant varieties. Obviously, the value objective established by this legal system is mainly to obtain personal economic benefits through legitimate breeding labor1. However, the problem that is difficult to avoid is that compared with the “collectivism” and “devotion spirit” advocated and implemented in China since 1949, emphasis on the “pursuit of purely personal economic interests” is unlikely to take root in China due to its ancient and profound social tradition.2
Since the promulgation and implementation of the “Regulations for the Protection of New Plant Varieties” in 1997, China has made huge progress and achievements in the legislation for the protection of new plant varieties. The National People’s Congress Standing Committee, the Supreme People’s Court, the Ministry of Agriculture and Rural Affairs, and the National Forestry and Grassland Administration have all played a role. In the revision of the Seeds Law in 2015, a section on the protection of new plant varieties was added; and the Supreme People’s Court has promulgated the judicial interpretation to specifically deal with this issue. The agriculture and forestry departments have promulgated respective regulations, including the “Implementation Rules for the Protection of New Plant Varieties,” “Guidelines for the Examination of New Plant Varieties,” “The Protection List of Plant Varieties,” etc., which foresee the application, testing, authorization, review, and protection of new plant varieties and achieve basic complete coverage.
It is particularly worth noting that the Ministry of Agriculture and Rural Affairs has also issued the following important regulations, including “Nomenclature of Agricultural Plant Varieties,” “Registration Guidelines for Non-major Crop Varieties,” “Registration Measures for Non-major Crop Varieties,” “The Measures for the Protection of Agricultural Wild Plants,” and “Administrative Measures on Crop Germplasm Resources,” which reflect the fact that the Ministry is continuously refining and improving this legal system.
1.2 The Research Status of Protection of New Plant Varieties
With regard to the research status of new plant varieties in China, the number of experts and scholars in China who study the protection of new plant varieties is very small. The main reasons for this are the following: (a) It is difficult for experts and scholars engaged in legal research to study this area in depth, as general legal knowledge is not enough and basic intellectual property legal knowledge is required. (b) Even experts and scholars who have mastered the knowledge of intellectual property law are unable to systematically study this area and can only understand the legal system from the literal meaning of the law and general social common sense, if they do not have expertise in biology, genetics, and breeding. (c) The number of legal cases in this area is still small compared with the cases of copyright, patents, and trademarks and has not attracted much attention.
Although Chinese scholars began to explore and discuss the issue of the protection of valuable non-plant new varieties, essentially derived varieties, criminal liability for infringement breeders’ rights, reasonable damages, range of special rights of farmers, and the establishment of special variety name rights in legislation. At present, research in China on the protection of new plant varieties is still mainly to learn and understand the basic content of the UPOV Convention and other national laws. China has yet to establish its own DUS (the Examination of Distinctness, Uniformity and Stability) test guide and genetic fingerprint data for plant varieties and to integrate the scientific spirit of this legal system into the inner spirit of the Chinese nation. The research on this legal system still faces the following problems that need to be solved: What is the goal that should be pursued in this legal system? What specific contents should be included in it? How could this legal system be improved according to China’s characteristics in plant resources and cultural and social development and from the long-term and overall perspectives? How can this legal system serve Chinese people and people of the world better? At present, there is basically little or no research on these deeper and broader issues in China.
1.3 Granting of Breeders’ Rights in China
1.3.1 The Total Number of Breeders’ Rights Granted in China by June 2018
China has accepted and approved breeders’ rights since 1999. This work is handled by the Ministry of Agriculture and Rural Affairs (formerly the Ministry of Agriculture) and the National Forestry and Grassland Administration (formerly the State Forestry Administration). According to the statistics of the relevant departments of the Ministry of Agriculture and Rural Affairs, by 2016, the number of applications for new plant variety rights in China already ranked first in the world.3 From 1999 to June 2018, China approved a total of 12,221 breeders’ rights, of which 10,863 are for agriculture and 1358 are for forestry (the author carried out calculations based on the statistics and information published on the official website of the Ministry of Agriculture and Rural Affairs and the National Forestry and Grassland Administration).
1.3.2 Period Needed for Applying for Breeders’ Rights in China
The average length of time from the application of a variety right to its acquisition in China varies, which can range from about 10 months to 9 years. For crops such as rice, corn, wheat, soybeans, and cotton, generally, it takes 3 to 4 years. Cases with delay of over 5 years may have encountered opposition, related litigation, or disputes during the application process. Since 2017, this period has been shortening. More and more breeders’ rights on new plant varieties have been obtained within a period of less than 1 or 2 years.
1.3.3 Foreign Applicants Obtaining Breeders’ Rights in China
The majority of breeders’ rights holders are Chinese units and individuals. A small number of foreign units and individuals have also been applying for breeders’ rights in China. Until 2018, foreign applications mainly come from the United States, Germany, France, the United Kingdom, the Netherlands, Belgium, Italy, Denmark, Japan, Switzerland, and New Zealand. Among these, the United States, the Netherlands, France, Germany, the United Kingdom, and Switzerland have obtained the most breeders’ rights.
From 1999 to June 2018, 188 forestry breeders’ rights in China were obtained by foreign applicants from nine countries, accounting for 13.84% of the total forestry breeders’ rights. In the category of agricultural breeders’ rights, the proportion of breeders’ rights acquired by foreign units and individuals is smaller. In addition, due to the different types of varieties, it is difficult to compare the commercial advantages of breeders’ rights for different owners. According to the statistics of the National Forestry and Grassland Administration, as of the end of 2016, the top ten units that have obtained forestry breeders’ rights in China are Beijing Forestry University; Chinese Academy of Forestry; Shandong Academy of Forestry; Kunming Yang Yueji Horticulture Co., Ltd.; Chinese Academy of Sciences; Shandong Agricultural University; W. Korder’ Sohne (Germany); Shanghai Botanical Garden; Palm Garden Co., Ltd.; and Meilland International SA (France).4
1.3.4 Commercial Use of Breeders’ Rights in China
At present, the economic significance and commercial value of the new plant varieties in China are mainly reflected in the fact that the breeders’ rights holders prohibit others from commercializing the authorized varieties and less in the use of these exclusive rights to gain commercial interests. In addition, breeders can also obtain benefits through cooperative breeding with others, or commissioned breeding for others, and licensing others to use their authorized varieties, or selling the application right of breeders’ rights or the breeders’ rights. Finally, under China’s current legal provisions, breeder rights holders can also use the variety rights as capital contributions, or mortgages, and can also use breeder rights for financing. However, so far, such activities are still in their infancy in China.
1.4 Chinese Applying for Breeders’ Rights with Foreign Countries: Extremely Rare
The number of Chinese individuals and units applying for new plant variety rights with foreign countries is very small. From 2000 to 2013, Chinese applicants filed for a total of 133 applications with different foreign countries, obtaining 47 authorizations in aggregate. In 2013, Chinese applicants submitted a total of 33 applications overseas and obtained 5 authorizations. In 2014, a total of two applications were filed with different foreign countries and one authorization was obtained. In other words, Chinese breeders mainly apply for breeders’ rights in China and rarely pay attention to applying abroad. The main reason for this situation may be that Chinese seed companies mainly engage in commercial activities related to the seed industry in China and have not expanded their activities overseas.
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Hou Y. (2019) Protecting New Plant Varieties in China and Its Major Problems. In: Liu KC., Racherla U. (eds) Innovation, Economic Development, and Intellectual Property in India and China. ARCIALA Series on Intellectual Assets and Law in Asia. Springer, Singapore
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