(1promulgated by the State Council Decree No.213 on March 20, 997, and implemented as of June 1997. )
[Edit this paragraph] Chapter I General Provisions
Article 1 These Regulations are formulated for the purpose of protecting the right to new plant varieties, encouraging the cultivation and use of new plant varieties, and promoting the development of agriculture and forestry.
Article 2 The term "new plant varieties" as mentioned in these Regulations refers to plant varieties that have been artificially cultivated or developed from wild plants and are novel, specific, consistent and stable, and have appropriate names.
Article 3 The administrative department of agriculture and forestry in the State Council (hereinafter referred to as the examination and approval authority) shall be responsible for accepting and examining applications for new plant variety rights according to the division of responsibilities, and granting new plant variety rights (hereinafter referred to as the variety rights) to new plant varieties that meet the requirements of these Regulations.
Article 4 The people's governments at or above the county level or the relevant departments shall reward the units or individuals that have completed the breeding of new plant varieties that are related to national interests or public interests and have great application value.
Article 5 The production, sale and popularization of new plant varieties (hereinafter referred to as authorized varieties) that have been granted variety rights shall be examined and approved in accordance with the relevant laws and regulations of the state on seeds.
[Edit this paragraph] Chapter II Content and Ownership of Variety Rights
Article 6 Units or individuals that have completed breeding shall enjoy exclusive rights to the varieties authorized by them. Without the permission of the variety owner (hereinafter referred to as the variety owner), no unit or individual may produce or sell the propagating materials of the authorized variety for commercial purposes, and may not reuse the propagating materials of the authorized variety for the production of propagating materials of another variety for commercial purposes; However, unless otherwise provided for in these regulations.
Article 7 The right to apply for new plant varieties belongs to the unit that mainly uses the material conditions of the unit to complete the task or job breeding of the unit; For non-post breeding, the right to apply for new plant varieties belongs to the individual who has completed the breeding. After the application is approved, the variety right belongs to the applicant. Entrust breeding or cooperative breeding, the ownership of variety rights shall be agreed by the parties in the contract; If there is no contract, the variety right belongs to the unit or individual entrusted to complete the breeding or jointly complete the breeding.
Article 8 A new plant variety can only be granted one variety right. Where two or more applicants apply for variety rights for the same new plant variety respectively, the variety rights shall be granted to the first applicant; At the same time, the variety right is granted to the person who first completes the breeding of new plant varieties.
Article 9 The application right and variety right of new plant varieties can be transferred according to law. Where a unit or individual in China transfers the application right or variety right of a new plant variety cultivated in China to a foreigner, it shall be approved by the examination and approval authority. Where a state-owned unit transfers the application right or variety right in China, it shall report to the relevant administrative department for approval in accordance with the relevant provisions of the state. Where the application right or variety right is transferred, the parties concerned shall conclude a written contract and register it with the examination and approval authority, which shall make an announcement.
Article 10 An authorized variety may be used without the permission of the variety owner under any of the following circumstances, but it shall not infringe upon other rights enjoyed by the variety owner in accordance with these Regulations:
(a) the use of authorized varieties for breeding and other scientific research activities;
(2) Breeding materials of authorized varieties for farmers' own use.
Article 11 In the interests of the state or the public, the examination and approval authorities may make a decision on compulsory licensing of new plant varieties, and register and announce it. The unit or individual that has obtained the compulsory license for exploitation shall pay the variety owner a reasonable exploitation fee, the amount of which shall be agreed by both parties; If both parties fail to reach an agreement, it shall be decided by the examination and approval authority. If the variety owner refuses to accept the decision on compulsory license or the ruling on compulsory license fee, he may bring a lawsuit to the people's court within 3 months from the date of receiving the notice.
Article 12 No matter whether the protection period of authorized varieties expires or not, the sales of authorized varieties shall use their registered names.
Chapter III Conditions for Granting Variety Rights
Thirteenth new varieties of plants that apply for variety rights should belong to the genus or species listed in the national plant variety protection list. The list of plant variety protection shall be determined and published by the examination and approval authority.
Article 14 A new plant variety granted variety right shall be novel. Novelty means that the new plant variety that applies for variety right has not been sold before the application date, or the sales in China with the permission of the breeder do not exceed 1 year; It has not been more than 6 years to sell the propagation materials of lianas, trees, fruit trees and ornamental trees abroad, and it has not been more than 4 years to sell the propagation materials of other plant varieties.
Fifteenth new plant varieties granted variety rights should be specific. Specificity means that the new plant variety applying for variety right should be obviously different from the known plant variety before submitting the application.
Sixteenth new varieties of plants granted variety rights should be consistent. Consistency refers to the consistency of related characters or characteristics of new plant varieties applying for variety rights in the process of reproduction, except for foreseeable variation. Seventeenth new varieties of plants granted variety rights should be stable. Stability means that the related characters or characteristics of new plant varieties applying for variety rights remain unchanged after repeated propagation or at the end of a specific propagation cycle.
Article 18 A new plant variety granted variety right shall have an appropriate name, which shall be different from the name of the known variety in the same or similar plant genus or species. This name is a common name after the registration of new plant varieties.
Variety naming shall not use the following names:
(a) consist of numbers only;
(2) Violating social morality;
(three) the characteristics of new plant varieties, characteristics or the identity of breeders are easily misunderstood.
[Edit this paragraph] Chapter IV Application and Acceptance of Variety Rights
Nineteenth units and individuals applying for variety rights in China can directly or entrust an agency to apply to the examination and approval authority. Units and individuals within the territory of China shall apply for the variety rights of new plant varieties that involve national security or vital interests and need to be kept confidential, and shall handle them in accordance with the relevant provisions of the state.
Twentieth foreigners, foreign enterprises or other foreign organizations applying for variety rights in China shall be handled in accordance with the agreement signed between their countries and People's Republic of China (PRC) or the international treaties to which * * * is a party, or in accordance with the principle of reciprocity.
Twenty-first to apply for variety rights, it shall submit a variety request, instructions and photos that meet the requirements of the prescribed format to the examination and approval authority. The application documents shall be written in Chinese.
Article 22 The date when the examination and approval authority receives the application documents for variety right is the application date; The application documents are mailed, and the postmark date is the application date.
Article 23 Where an applicant applies for variety right in China within 12 months from the date when he first filed an application for variety right in a foreign country, he may enjoy priority according to the agreement signed between the foreign country and People's Republic of China (PRC), the international treaties to which both countries are parties or the principle of mutual recognition of priority.
Where the applicant claims priority, it shall submit a written explanation at the time of application, and submit a copy of the first application document for variety right confirmed by the original acceptance organ within 3 months; Failure to submit a written explanation or a copy of the application documents in accordance with the provisions of these regulations shall be deemed as failure to claim priority.
Article 24 The examination and approval authority shall accept the application for variety right in accordance with Article 21 of these Regulations, specify the application date, assign the application number, and notify the applicant to pay the application fee within 0 months from the date of receiving the application. The examination and approval authority shall not accept the application for variety right that does not meet or is still inconsistent with the provisions of Article 21 of these regulations after revision, and notify the applicant.
Article 25 Before granting the variety right, the applicant may modify or withdraw the application for variety right.
Twenty-sixth units or individuals within the territory of China shall apply for the variety right of new plant varieties cultivated in China overseas, and shall register with the examination and approval authority.
Chapter V Examination and Approval of Variety Rights
Article 27 After the applicant pays the application fee, the examination and approval authority shall make a preliminary examination of the following contents of the application for variety right:
(a) whether it belongs to the scope of plant genera or species listed in the catalogue of plant variety protection;
(2) Whether it complies with the provisions of Article 20 of these regulations;
(three) whether it meets the requirements of novelty;
(four) whether the naming of new plant varieties is appropriate.
Twenty-eighth examination and approval authorities shall complete the preliminary examination within 6 months from the date of accepting the application for variety rights. The examination and approval authority shall announce the application for variety right that has passed the preliminary examination, and notify the applicant to pay the examination fee within 3 months. The examination and approval authority shall notify the applicant to state his opinions or make amendments to the application for variety right that fails to pass the preliminary examination; If it fails to reply within the time limit or is still unqualified after modification, the application shall be rejected.
Article 29 After the applicant has paid the examination fee in accordance with the regulations, the examination and approval authority will conduct substantive examination on the specificity, consistency and stability of the application for variety right. If the applicant fails to pay the examination fee in accordance with the provisions, the application for variety right shall be deemed to have been withdrawn.
Thirtieth the examination and approval authority mainly based on the application documents and other relevant written materials for substantive examination. When the examination and approval authority deems it necessary, it may entrust a designated testing institution to carry out testing or inspect the completed planting or other testing results. Due to the need of examination, the applicant shall provide the necessary information on new plant varieties and propagation materials in accordance with the requirements of the examination and approval authority.
Article 31 The examination and approval authority shall make a decision to grant the variety right to an application that meets the requirements of these Regulations after substantive examination, issue a variety right certificate, and register and announce it. The examination and approval authority shall reject the application for variety right that does not conform to the provisions of these regulations after substantive examination, and notify the applicant.
Article 32 The examination and approval authority shall set up a review committee for new plant varieties. If the applicant refuses to accept the decision of the examination and approval authority to reject the application for variety right, he may, within 3 months from the date of receiving the notice, request a reexamination to the New Plant Variety Reexamination Board. The re-examination committee of new plant varieties shall make a decision within 6 months from the date of receiving the request for re-examination and notify the applicant. If the applicant refuses to accept the decision of the New Plant Variety Reexamination Board, he may bring a lawsuit to the people's court within 15 days from the date of receiving the notice.
Article 33 After the variety right is granted, from the date of announcement of preliminary examination to the date of granting the variety right, the variety owner has the right to recover from the units and individuals that produce or sell the authorized variety propagation materials for commercial purposes without the permission of the applicant.
[Edit this paragraph] Chapter VI Duration, Termination and Invalidity
Article 34 The protection period of variety right is 20 years for lianas, trees, fruit trees and ornamental trees, and 15 years for other plants from the date of authorization.
Article 35 The variety owner shall pay the annual fee from the year when the variety right is granted, and provide the breeding materials of authorized varieties for testing according to the requirements of the examination and approval authority.
Article 36 In any of the following circumstances, the variety right shall be terminated before the expiration of its protection period:
(1) The variety owner waives the variety right in writing;
(two) the variety owner fails to pay the annual fee in accordance with the provisions;
(three) the variety owner fails to provide the authorized variety breeding materials required for the test according to the requirements of the examination and approval authority;
(4) After inspection, the authorized variety no longer meets the characteristics and characteristics when the variety right was granted. The termination of the variety right shall be registered and announced by the examination and approval authority.
Article 37 If the variety right is not in conformity with the provisions of Articles 14, 15, 16 and 17 of these Regulations from the date when the examination and approval authority announces the grant of the variety right, the New Plant Variety Reexamination Committee may declare the variety right invalid ex officio or at the written request of any unit or individual; If it does not conform to the provisions of Article 18 of these regulations, it shall be renamed. The decision to declare the variety right invalid or renamed shall be registered and announced by the examination and approval authority, and the relevant parties shall be notified. Anyone who refuses to accept the decision of the Reexamination Board for New Plant Varieties may bring a lawsuit to the people's court within 3 months from the date of receiving the notice.
Article 38 The variety right declared invalid shall be deemed as nonexistent from the beginning. The decision to declare the variety right invalid has no retrospective effect on the judgment and ruling made and executed by the people's court before the declaration, the decision to deal with the infringement of new plant varieties made and executed by the administrative department of agriculture and forestry of the people's government at or above the provincial level, and the executed contract for the implementation of new plant varieties and the contract for the transfer of new plant variety rights; However, if losses are caused to others due to the malice of the variety owner, reasonable compensation shall be given. In accordance with the provisions of the preceding paragraph, if the variety right holder or variety right transferor fails to return the use fee or transfer fee to the licensee or transferee, which obviously violates the principle of fairness, the variety right holder or variety right transferor shall return all or part of the use fee or transfer fee to the licensee or transferee.
[Edit this paragraph] Chapter VII Punishment Rules
Article 39 Where breeding materials of authorized varieties are produced or sold for commercial purposes without the permission of the variety owner, the variety owner or interested parties may request the administrative departments of agriculture and forestry of the people's governments at or above the provincial level to handle the matter according to their respective functions and powers, or they may directly bring a lawsuit to the people's court. The administrative departments of agriculture and forestry of the people's governments at or above the provincial level may, according to their respective functions and powers, mediate the infringement damage on the principle of voluntariness of the parties. If an agreement is reached through mediation, the parties shall perform it; If the mediation fails to reach an agreement, the variety owner or interested party may bring a lawsuit to the people's court in accordance with the civil procedure. In order to safeguard public interests, the administrative departments of agriculture and forestry of the people's governments at or above the provincial level may, according to their respective functions and powers, order the infringer to stop the infringement, confiscate the illegal income and impose a fine of less than 5 times the illegal income.
Fortieth counterfeit varieties, by the administrative departments of agriculture and forestry of the people's governments at or above the county level according to their functions and powers shall be ordered to stop counterfeiting, confiscate the illegal income and plant variety propagation materials, and impose a fine of more than 5 times the illegal income 1; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
Article 41 The administrative departments of agriculture and forestry of the people's governments at or above the provincial level may, when investigating cases of infringement of variety rights and cases of counterfeiting varieties authorized by the people's governments at or above the county level, seal up or detain plant variety propagation materials related to the cases, and consult, copy or seal up contracts, account books and related documents related to the cases.
Forty-second sales of authorized varieties without the registered name, by the administrative department of agriculture and forestry of the people's government at or above the county level according to their functions and powers shall be ordered to make corrections within a time limit, and may be fined 1000 yuan.
Article 43 If there is a dispute over the right to apply for a new plant variety and the ownership of the variety right, the parties concerned may bring a lawsuit to the people's court.
Article 44 If the staff of the administrative department of agriculture and forestry of the people's government at or above the county level and the relevant departments abuse their powers, neglect their duties, engage in malpractices for selfish ends, and ask for and accept bribes, which constitutes a crime, they shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be given administrative sanctions according to law.
[Edit this paragraph] Chapter VIII Supplementary Provisions
Article 45 The examination and approval authorities may make flexible provisions on the novelty requirements of the first batch of plant genera or species listed in the list of plant variety protection before the implementation of these regulations and the new plant genera or species listed in the list of plant variety protection after the implementation of these regulations.
Article 46 These Regulations shall come into force as of1June 1997+1 year1October.