Ministry of Agriculture Formalizes Processes for Handling PVR Infringement Cases

The Provisions on Handling Cases of Infringement of Rights to New Varieties of Agricultural Plants (the Infringement Provisions) came into effect on February 1 2003. The Infringement Provisions make transparent procedures adopted by the PRC Ministry of Agriculture (MOA) for handling infringement claims by holders, or in some cases licensees, of agricultural plant variety rights (PVRs) which have been granted by the MOA in accordance with the Protection of New Varieties of Plants Regulations (the Plant Variety Regulations), effective from October 1 1997 and the Protection of New Varieties of Plants Regulations Implementing Rules (Agriculture) (the Agriculture Rules), effective from June 16 1999.

While the Plant Variety Regulations and the Agriculture Rules focus on the nature of, and the scope of protection afforded to, a PVR, as well as the procedures for applying for a PVR, the Infringement Provisions address the manner in which agricultural departments at the provincial level or above will handle claims of PVR infringement. This is a significant development, as the Plant Variety Regulations and the Agriculture Rules, as well as other previous related legislation, did not contain any detailed measures in this regard.

The Infringement Provisions, like previous legislation affecting PVRs, have not been developed in a vacuum. In drafting the Infringement Provisions, the MOA has been cognizant of China's obligations under the Agreement for Trade-related Aspects of Intellectual Property Rights (TRIPs) of the WTO. The MOA's technology and education division acknowledged this specifically in its explanatory memorandum accompanying the promulgation of the Infringement Provisions. However, while the Infringement Provisions do essentially conform to TRIPs, as with all other aspects of intellectual property protection in China, the most difficult challenge for the regulatory authorities, including the MOA, is enforcement of the rules. Nonetheless, with implementation of the Infringement Provisions, the MOA is in a much better position to handle claims on a consistent, uniform and procedurally transparent basis.