Several Provisions on Issues Concerning Specific Application of the Law to Trials of Disputes over the Infringement of Rights in New Varieties of Plants

(Promulgated by the Supreme People's Court on January 12 2007 and effective as of February 1 2007.) 

SPC Interpretation [2007] No.1licen

Pursuant to relevant provisions such as the PRC General Principles for Civil Law, PRC Civil Procedure Law (2nd Revision), etc., and taking into account trial experiences in disputes over the infringement of rights in new varieties of plants and actual circumstances, we set forth the following provisions on several issues concerning the specific application of the law in order to correctly handle disputes over the infringement of rights in new varieties of plants:

Article 1: If the holder of the rights in a new variety of plant (Variety Rights Holder) or a materially interested party is of the opinion that its rights in the new variety of plant have been infringed, it may institute a legal action in a people's court in accordance with the law.

For the purposes of the preceding paragraph, the term "materially interested party" includes licensees under licensing contracts for new varieties of plants, lawful successors in title to the rights in the variety, etc.

The licensee under an exclusive licensing contract may institute a legal action in a people's court on its own. The licensee under a sole licensing contract may institute a legal action together with the Breeder or, in the event that the Breeder does not institute a legal action, do so itself. The licensee under a non-exclusive licensing contract may institute a legal action provided that he/she has the express authorization of the Breeder.

Article 2: If the propagating material of a protected variety is produced or sold for commercial purposes or if, for commercial purposes, the propagating material of a protected variety is additionally used to produce the propagating material of another variety without the permission of the Variety Rights Holder, the people's court shall determine the same to be an infringement of the rights in the new variety of plant.

If the properties and characteristics of the alleged infringing thing are identical to those of the protected variety, or if the differences in the properties and characteristics are due to something other than genetic variation, the people's court shall, in general, determine the alleged infringing thing to be propagating material of the protected variety produced or sold for commercial purposes.

If the alleged infringer additionally uses the propagating material of a protected variety as a parent for propagation with another parent, the people's court shall, in general, determine that the propagating material of the protected variety has additionally been used to produce the propagating material of another variety for commercial purposes.

Article 3: If the specialized issues involved in a dispute over the infringement of rights in a new variety of plant require an expert assessment, the assessment shall be carried out by a qualified assessment organization or expert designated by the parties after consultations. If the consultations between the parties fail, the assessment shall be carried out by a qualified assessment organization or expert designated by the people's court.

If no assessment organization or expert as specified in the preceding paragraph exists, the assessment shall be carried out by a professional organization or a professional that has the technical expertise to test the variety.

Article 4: The specialized issues involved in a dispute over the infringement of rights in a new variety of plant may be carried out by means such as field observation, genotyping, etc.

The findings of an assessment carried out by the methods specified in the preceding paragraph shall be cross examined by the people's court in accordance with the law to determine their probative force.

Article 5: If a Variety Rights Holder or materially interested party institutes a legal action in a people's court over infringement of its rights in a new variety of plant and simultaneously petitions for an order to stop the infringement of his rights in the new variety of plant or for evidence preservation first, the people's court may, after examination, render a ruling first.

When the people's court is to take evidence preservation measures, it may, based on the actual circumstances of the case, invite a relevant skilled person to assist it in obtaining evidence in accordance with relevant technical rules.

Article 6: When a people's court tries a dispute over the infringement of rights in a new variety of plant, it shall, in accordance with Article 134 of the General Principles for Civil Law and taking into account the actual circumstances, render a judgment ordering the infringer to bear civil liability by stopping its infringement, compensating for losses, etc.

The people's court may, at the request of the injured party, determine the measure of damages based on the loss incurred by the injured party as a result of the infringement or the benefits derived by the infringer as a result of the infringement. If the injured party requests that the measure of damages be determined based on the licensing fee for the new variety of plant, the people's court may determine a reasonable measure of damages based on factors such as the type, duration, scope, etc. of the licence for the new variety of plant and with reference to the licensing fee for such new variety of plant.

If the measure of damages is difficult to determine in accordance with the preceding paragraph, the people's court may set the measure of damages at a maximum of Rmb500,000 by comprehensively taking into consideration factors such as the nature, duration and consequences of the infringement, the amount of the licensing fee for the new variety of plant, the type, duration and scope of the licence for the new variety of plant and the reasonable expenses incurred by the injured party in investigating and stopping the infringement, etc.

Article 7: If the injured party and the infringer agree to convert the infringing thing into its monetary value and use the proceeds to offset the loss incurred by the injured party, the people's court shall permit the same. If either the injured party or the infringer does not agree to such conversion and offset, the people's court shall, at the request of the concerned party, order the infringer to destroy the active nature of the infringing thing or otherwise dispose of it so that it can never be used as a propagating material.

If the infringing thing is currently in its growth period or if destruction of the infringing thing would give rise to material adverse consequences, the people's court shall have the option of not ordering the destruction of the infringing thing, unless otherwise specified in laws or administrative regulations.

Article 8: If an individual or a rural contractor engaged in agricultural or forestry cultivation is entrusted by a third party to propagate on the behalf of such party propagating material that infringes on rights in a variety and is unaware that the thing propagated on the behalf of such party is propagating material that infringes on rights in a variety and identifies the employer, he or it shall not be liable for damages.