New plant varieties refer to new plant varieties that have been artificially cultivated or developed from discovered wild plants, have novelty, specificity, consistency and stability, and are appropriately named. Units and individuals that have completed breeding enjoy exclusive exclusive rights to their authorized varieties, that is, new plant variety rights. No unit or individual may, without permission, produce or sell the propagating material of the authorized variety for commercial purposes, and may not reuse the propagating material of the authorized variety to produce propagating material of another variety for commercial purposes.
The International Union for the Protection of New Varieties of Plants ("UPOV") is an intergovernmental organization headquartered in Geneva. Member states grant variety rights to new plant varieties respectively in accordance with the principles stipulated in the International Convention for the Protection of New Varieties of Plants.
The Fourth Plenary Session of the Standing Committee of the Ninth National People's Congress of the People's Republic of China decided (adopted on August 29, 1998) to join the International Convention for the Protection of New Varieties of Plants (1978) text)". my country officially joined the Convention on April 23, 1999.
Protection scope for new forestry plant varieties: forest trees, bamboos, woody vines, woody ornamental plants (including woody flowers), fruit trees (dried fruit parts) and woody oils, beverages, seasonings, woody medicinal materials, etc. plant species.
Protected objects: plant propagation materials. Propagation materials refer to the entire plant (including seedlings), seeds (including roots, stems, leaves, flowers, fruits, etc.) and any part of the plant (including tissues and cells).
Five conditions for granting variety rights: novelty, specificity, consistency, stability and appropriate name.
1. The connotation of the protection of new plant varieties
The protection of new plant varieties refers to the protection of the rights of plant breeders. The object of protection is not the plant variety itself, but the rights of plant breeders. rights to enjoy. This right is the exclusive and exclusive right granted by the government to plant breeders to exploit their varieties. Plant breeder's rights belong to the category of intellectual property rights like patent rights, copyrights and trademark rights. Without the permission of the breeder, no person or organization has the right to engage in commercial activities using the varieties developed by the breeder and for which variety rights have been granted. At present, my country's protection of plant variety rights is limited to the propagating materials of plant varieties. That is to say, only the owner of the variety right has the full right to sell the propagating material of the variety or to produce such propagating material for the purpose of sale. Any other organization or individual can only do so with the authorization of the variety rights holder.
2. The purpose and significance of new plant variety protection
1. The fundamental purpose of protection of new plant varieties is to encourage the cultivation and use of new plant varieties and promote the development of forestry production. Generally speaking, the improvement brought by the cultivation of new plant varieties to production is 30%-60%. A protected variety is a new variety, and using a protected variety is using a new variety. When a new variety is protected by the government, it essentially increases the popularity of the new variety and increases the "worth" of the new variety. Therefore, this new variety is easy to be accepted by people and can be widely promoted in production.
2． The protection of new plant varieties is conducive to establishing a fair and fair competition mechanism in my country's breeding industry. This mechanism can further encourage breeders to actively invest in innovative activities of plant varieties. Through plant variety protection, breeders can obtain the benefits they deserve. In this way, breeders can not only recover the capital they have invested in breeding, but also reinvest this capital into the cultivation of new plant varieties. By going back and forth from this, the breeding mechanism of new plant varieties can be better adapted to the market economy.
3. The implementation of the new plant variety protection system in our country is the inevitable result of the development of our country's socialist market economy, and it is also an indispensable link in our country's participation in the international economic and technological integration process. If my country does not protect new plant varieties, countries that have implemented protection will not sell their protected new plant varieties to my country for the purpose of protecting their own interests, or they will only sell some varieties that have exceeded the protection period.
This is true even in some international exhibitions held in my country. Since my country did not protect new plant varieties in the past, some countries publicly stated that they could not bring their new varieties to my country for exhibition. In addition, new varieties developed by our country's breeders have also been lost overseas, causing serious losses to the country. Therefore, the implementation of the new plant variety protection system can promote my country's international trade, international exchanges and cooperation in plant varieties.
3. Scope of new plant variety protection
The protection of new plant varieties in my country is carried out by the State Forestry Administration and the Ministry of Agriculture. According to the division of labor between the two departments in the protection of new plant varieties, the State Forestry Administration is responsible for forest trees, bamboos, woody vines, woody ornamental plants (including woody flowers), fruit trees (dried fruit parts) and woody oils, beverages, seasonings, and woody plants. Protection of new plant varieties such as this medicinal material.
IV. Conditions that plant varieties applying for protection should meet
A protected plant variety must be artificially cultivated or a variety of discovered wild plants, so that The varieties should meet the following conditions: novelty, specificity, consistency, stability and appropriate name.
5. Ownership of new plant variety rights
1. Breeding accomplished by an individual performing the tasks of his or her unit or mainly utilizing the material conditions of his or her unit, including funds, equipment, sites, breeding materials, and technical data, etc., is classified as job breeding, and the variety rights belong to his or her unit. Variety rights for non-professional breeding belong to the individual who completed the breeding.
2． The ownership of the variety rights for entrusted breeding is determined by the contract between the entrusting party and the entrusted party. If there is no contract, the variety rights belong to the entrusted party. In other words, units or individuals who are not directly engaged in breeding work can also obtain variety rights through commissioned breeding, thus obtaining economic benefits.
3. The variety rights of cooperative breeding belong to the units and individuals who jointly complete the breeding work.
4． When two or more applicants apply for variety rights for a new plant variety, the variety rights are awarded to the person who applies first; if they apply at the same time, the variety rights are awarded to the person who completes the application first.
5. The application rights and variety rights for new plant varieties can be transferred in accordance with the law. In a sense, variety rights are actually a commodity, and therefore can enter the market in accordance with the principles of market economy.
6. Duration of new plant variety protection
The term of new plant variety protection depends on the length of time required to cultivate the plant variety. Generally speaking, woody plants take longer to cultivate and therefore have longer protection periods. my country stipulates that the protection period for variety rights of vines, forest trees, fruit trees and ornamental trees is 20 years, and that of other plants is 15 years.
7. Exceptions to the protection of new plant varieties
1. Breeding of new varieties and scientific research activities
Any organization and individual can use authorized varieties for breeding and other scientific research activities. In other words, the propagating materials of authorized varieties can be used to cultivate new varieties, and the propagating materials of authorized varieties can also be used for other scientific research activities. Breeders' rights do not cover the above two areas.
2． Farmers' privileges
In countries that implement new plant variety protection, it is often stipulated that farmers can enjoy certain rights to meet their basic needs for authorized varieties. This is also known as peasant privilege. Farmers have the right to use harvested material of authorized varieties as propagating material for use on their own land. In other words, farmers have the right to use authorized varieties for self-propagation and for their own use of the propagating materials of authorized varieties.
8. How breeders obtain protection and exercise their legitimate rights and interests
After breeding new varieties, if breeders need to protect their legitimate rights and interests, they should report to the State Forestry Administration or the Ministry of Agriculture File an application for variety rights. Only after the State Forestry Administration or the Ministry of Agriculture approves the grant of variety rights can the legitimate rights and interests of breeders be protected by the state. If a breeder has no application to the state for the rights and interests of a new variety he has cultivated, it means that he or she has automatically given up his or her rights and interests; the state will not grant rights to the rights and interests of a variety for which an application has not been made, or for which an application has been made but has not been approved. Protect.
For new plant varieties that need protection, only the state can identify them, and provincial and sub-provincial governments have no right to identify them. Chinese breeders can apply directly to the State Forestry Administration in accordance with the prescribed procedures, or they can apply through an agency. After Chinese breeders obtain variety rights, they can use their exclusive rights to propagate themselves or sell the propagating materials of their varieties, or they can issue licenses to other organizations and individuals in exchange for royalties. Generally, for plant varieties that are large in volume and widely used, breeders often do not directly control the propagation of the varieties. Instead, they cooperate with dealers or other intermediary organizations and charge a certain percentage of franchise fees based on the unit price of propagation materials. For higher value breeds, the breeder may control the breeding or sale of the breed and receive direct returns from the sale of the breeding material. When their legitimate rights and interests are infringed upon, breeders may request the forestry department of the people's government at or above the county level to handle the matter, or they may directly file a lawsuit with the People's Court.