Handling of Cases of Infringement of Rights to New Varieties of Agricultural Plants Provisions

(Promulgated by the Ministry of Agriculture on December 30 2002 and effective as of February 1 2003.)

Article 1: These Provisions are formulated in accordance with the PRC Protection of New Varieties of Plants Regulations (hereafter, the Regulations) to effectively handle cases of infringement of rights to new varieties of agricultural plants (hereafter, Variety Rights).

Article 2: "Cases of infringement of Variety Rights" referred to in these Provisions means undertaking for commercial purposes the activities of producing or selling propagating materials of protected varieties, or using propagating materials of protected varieties repeatedly in the production of the propagating materials of another variety, without the consent of the Variety Rights holder.

Article 3: The agricultural administrative department of the people's government at the provincial level or above shall be responsible for handling cases of infringement of Variety Rights within their administrative jurisdiction.

Article 4: The following requirements shall be met when requesting agricultural administrative departments of the people's government at the provincial level or above to handle cases of infringement of Variety Rights:

(i) the claimant shall be the Variety Rights holder or an interested party;

(ii) there shall be a clear respondent;

(iii) there shall be a specific claim and detailed facts and reasons in support of the claim;

(iv) the claim shall fall within the scope of cases that may be accepted by the relevant agricultural administrative department under its jurisdiction;

(v) the claim shall be submitted within the statutory time limit; and

(vi) none of the parties concerned shall have filed a suit with the People's Court in respect of the claim of infringement of Variety Rights in question.

The "interested party" in Item (i) above includes licensees of Variety Rights licensing contracts and the lawful successors of Variety Rights. Among licensees of Variety Rights licensing contracts, a licensee under an exclusive licensing contract may file a claim by itself; a licensee under a sole licensing contract may file a claim by itself, provided that the Variety Rights holder does not file a claim; a licensee under a general licensing contract shall not, in the absence of contractual provisions to the contrary, file a claim by itself.

Article 5: The statutory time limit for handling of cases of infringement of Variety Rights is two years, starting from the date that the Variety Rights holder or the interested party knew or should have known about the infringement.

Article 6: When requesting the agricultural administrative department of the people's government at the provincial level or above to handle cases of infringement of Variety Rights, the claimant shall submit a letter of request as well as the Variety Rights certificate in respect of the Variety Rights in question. The claimant shall provide counterparts of the request letter in accordance with the number of respondents.

The request letter shall indicate the following items: (i) name and address of the claimant, name and position of the legal representative, if agents are entrusted, name of the agents and name and address of the agency; (ii) name and address of the respondent; and (iii) details of the claim together with relevant facts and reasons supporting the claim. The request letter shall be signed or stamped with a seal by the claimant.

Article 7: If the request conforms with the requirements stipulated in Article 6 hereof, the agricultural administrative department of the people's government at the provincial level or above shall place the case on file within seven days after receiving the request letter and shall notify the claimant thereof in writing. At the same time it shall designate three or more case officers (provided that the number so designated constitute an odd number) to handle the case. If the request fails to meet the requirements stipulated in Article 6 hereof, the agricultural administrative department of the people's government at the provincial level or above shall notify the claimant in writing of its refusal to accept the case within seven days after receiving the request together with its reason(s) therefor.

Article 8: The agricultural administrative department of the people's government at the provincial level or above shall send a copy of the request letter and its appendices to the respondent by post, or serve it in person or through other means within seven days after placing the case on file, and shall require the respondent to submit a letter of defence within 15 days after its receipt thereof and provide counterparts of the letter of defence in accordance with the number(s) of claimant(s). Failure by a respondent to submit a letter of defence shall not affect the handling of the case by the agricultural administrative department of the people's government at the provincial level or above. If the respondent submits a letter of defence, the relevant administrative department of the people's government at the provincial level or above shall send a copy of the letter of defence to the claimant by post, or serve it in person or through other means within seven days after its receipt thereof.

Article 9: The agricultural administrative department of the people's government at the provincial level or above shall generally assess cases on the basis of written materials. If necessary, a hearing may be held, and the parties shall be notified of the time and place of such hearing seven days in advance. If a party refuses to attend the hearing without due cause or leaves the hearing before the end of the hearing without permission, as the case may be, the claimant may be deemed to have withdrawn its claim or the respondent may be subject to a decision by default.

When a hearing is held, the agricultural administrative department of the people's government at the provincial level or above shall make a written record of the participants and the proceedings at the hearing. After checking the record to be correct, the case officers and all participants shall either sign their name or affix their seals on the record.

Article 10: Unless the parties reach a mediation agreement or a settlement agreement and the claimant withdraws its claim, the agricultural administrative department of the people's government at the provincial level or above shall make a decision on the case, and issue a written decision which shall clearly specify the following:

(1) names and addresses of the claimant and the respondent; names and positions of legal representatives or principal persons-in-charge; and names of agents and agency;

(2) the facts and reasons represented by the parties concerned;

(3) the reasons and legal basis according to which a determination of infringement has or has not been established;

(4) the decision on handling the claim. If infringement is determined to have been established, the decision shall order the respondent to stop the infringement and specify the relevant punishment; if the infringement is not established, the decision shall reject the claim made by the claimant; and

(5) the avenues and the time limits applicable in respect of an application for administrative review or initiation of administrative litigation in the event a party may disagree with the decision.

A written decision shall be signed by the case officers and chopped with the official seal of the agricultural administrative department of the people's government at the provincial level or above.

Article 11: If the agricultural administrative department of the people's government at the provincial level or above determines that infringement has been established and makes a decision accordingly, it may adopt the following measures to stop the infringement:

(1) where the infringer produces the propagating materials of protected varieties, or uses the propagating materials of a protected variety directly in the production of the propagating materials of another variety, it may order the infringer to cease production and to destroy the plant materials being produced; where the infringer has obtained propagating materials, it may make an order immediately prohibiting the infringer from selling such materials;

(2) where the infringer sells the propagating materials of protected varieties, or sells propagating materials of another variety which were produced by direct use of the propagating material of the protected variety, it may order the infringer to cease sales activities immediately and prohibit it from selling unsold propagating materials which infringe the protected variety(ies);

(3) confiscate the illegal income;

(4) impose a fine of up to five times the illegal income; and

(5) impose other measures necessary to stop the infringement.

Article 12: If a party concerned disagrees with the decision made by the agricultural administrative department of the people's government at the provincial level or above, it may file an application for administrative review of the decision or initiate administrative litigation before the people's courts in accordance with the law. If, at the expiry of the statutory time limit for doing so, there has been no application by a party for administrative review or initiation by a party of administrative litigation, and the infringement activities have not ceased, the agricultural administrative department of the people's government at the provincial level or above may apply to the people's court for enforcement.

Article 13: If the agricultural administrative department of the people's government at the provincial level or above decides that an infringement is established, it may, based on the principle of voluntariness of the parties, mediate the compensation of losses caused by the infringement. If necessary, it may request the assistance of relevant work units and individuals. If an agreement is reached through mediation, the agricultural administrative department of the people's government at the provincial level or above shall prepare a mediation statement which shall clearly include the following contents:

1. names and addresses of the claimant and respondent, names and positions of their legal representatives; if the parties entrust agents, names of the agents and names and addresses of the agencies;

2. major facts of the case and respective liabilities to be undertaken by each party;

3. details of the agreement reached and the sharing of the relevant costs.

The mediation statement shall be signed or stamped with seals by each party, signed by the case officers and stamped with the official seal of the agricultural administrative department of the people's government at the provincial level or above. The parties shall implement the mediation statement after the mediation statement is served on the parties. Where no agreement is reached through the mediation, the parties may initiate an action before the people's court pursuant to relevant laws.

Article 14: The amount of compensation in respect of infringement of Variety Rights shall be determined in accordance with the losses suffered by the Variety Rights holder due to the infringement, or the profits obtained from the infringement by the infringer. Where it is difficult to determine the losses of the Variety Rights holder or the profits of the infringer, the compensation shall, depending on the circumstances, range from more than one to less than five times the licence fee for the Variety Rights.

Article 15: If, after the agricultural administrative department of the people's government at the provincial level or above or the people's court has made a decision or a judgement determining that infringement has been established, the respondent conducts the same type of infringement against the same Variety Right again, the agricultural administrative department of the people's government at the provincial level or above may directly order the infringer to stop the infringement immediately and may further adopt relevant punishment measures against the infringer, upon receipt of a request by the Variety Right holder or an interested party to handle the matter.

Article 16: The agricultural administrative department may determine the illegal income of the infringer in Variety Rights infringement cases in accordance with the following methods:

(1) where the infringer sells propagating materials which have infringed the rights of other parties or has counterfeited the relevant protected varieties, the illegal income shall be equal to the sales price of the propagating materials multiplied by volume of material sold; or

(2) where the infringer has entered into contracts to infringe protected Variety Rights of another party or counterfeit the relevant protected varieties, the illegal income shall be the equal to the fees it receives.

Article 17: The Procedures for Agricultural Administrative Penalty Provisions shall be applied when the agricultural administrative department of the people's government at the provincial level or above is handling cases of infringement of protected Variety Rights, or the agricultural administrative department of the people's government at the county level or above is handling cases of counterfeiting of protected varieties.

Article 18: The Ministry of Agriculture shall be responsible for the interpretation of these Provisions.

Article 19: These Provisions shall be implemented as of February 1 2003.

1 Translation provided by Sidley Austin Brown & Wood