(1) The new plant variety applying for variety right shall belong to the plant genus or species listed in the national plant variety protection list.
(2) The new plant varieties granted variety rights should be novel.
(3) The new varieties of plants that have been granted variety rights should be consistent, that is, the new varieties of plants that have applied for variety rights have the same related traits or characteristics except foreseeable variations after propagation.
(4) The new plant variety that has been granted the variety right shall be stable, that is, the relevant characters or characteristics of the new plant variety that has applied for the variety right will remain unchanged after repeated propagation or at the end of a specific propagation cycle.
(5) A new plant variety granted variety right shall have an appropriate name, which is different from the name of the known variety in the same or similar plant genus or species.
2. What is the application procedure for the right to new plant varieties?
1, the breeder shall submit the corresponding application documents. The contents of the document include: request for new plant variety rights, instructions and photos.
2. After the documents are fully prepared, the applicant who applies for the new variety right of forestry plants may apply directly to the State Forestry Administration or entrust an institution designated by the State Forestry Administration to apply. A breeder who applies for variety right may submit the application documents directly to the Plant New Variety Protection Office of the State Forestry Administration, or send the application documents by post.
3. After the application documents are submitted, the protected varieties applied by the applicant will be published in a written announcement issued by the State Forestry Administration or online. If no one questions the variety during the announcement period, the applicant will have the right to protect the new variety.
The protection period of new plant varieties depends on the length of time needed to cultivate plant varieties. Generally speaking, woody plants are cultivated for a long time, so the period of protection is also longer. China stipulates that the protection period of variety rights of lianas, trees, fruit trees and ornamental trees is 20 years, and other plants are 15 years. At present, China is constantly promoting agricultural and forestry production, advocating that more people can invest in plant breeding, which is conducive to cultivating and popularizing more new plant varieties.
Third, the characteristics of variety right.
1, novelty
Refers to the new plant varieties that apply for variety rights have not been sold before the application date, or the sales in China do not exceed 1 year with the permission of breeders; 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.
Grace period: If the first batch of plant genera or species listed in the list of plant variety protection at the time of the implementation of the Regulations, as well as those newly listed after the implementation of the Regulations, apply for variety rights within two years from the date of publication of the list, the Ministry of Agriculture may grant variety rights, and the propagation materials of this variety have been sold in China for less than four years with the permission of the variety owner, which meets the requirements of specificity, consistency, stability and naming stipulated in the Regulations.
2. Features
Refers to the application for variety rights of new plant varieties should be significantly different from the known plant varieties before submitting the application.
3. Consistency
Refers to a new plant variety that applies for variety right, and its related characters or characteristics are consistent after propagation except for foreseeable variation.
4. Stability
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.
Step 5 name
A new plant variety that has been granted variety right shall have an appropriate name, which is different from the name of the known variety in the same or similar plant genus or species.
4. What's the difference between the right of new plant variety and the patent right of invention?
There is a significant difference between the right of new plant varieties and the patent right of invention. New plant varieties are products that cannot be patented and are not subject to the adjustment of patent law. In judicial practice, because the mainstream view mistakenly believes that the right to new plant varieties is similar to the invention patent right, the relevant system of patent protection is often applied to the protection of variety rights. This practice does not conform to the laws of our country, nor to the essential attributes of new plant varieties.
The two have the following main differences:
1, the essential attributes between new plant varieties and invention patents are different.
New plant varieties are not inventions, but only the transformation of existing plants. New plant varieties are the improvement and utilization of the original products in nature, not brand-new products created by people, and cannot be produced by industrial methods, so they do not have creativity in the sense of patent law, so the patent law stipulates that the invention patent right shall not be granted. Invention-creation as mentioned in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement. It mainly includes product invention and method invention. Compared with invention patents, new plant varieties are transformation and creation. The former is the result, the latter is the procedure; The former maintains stability while the latter pursues development.
2. The authorization conditions of new plant variety right and invention patent right are different.
An invention granted a patent right shall be novel, creative and practical. The new plant variety applying for variety right shall have novelty, specificity, consistency, stability and proper name. Compared with the two, except for the different novelty standards, the main differences are as follows: patented inventions should be creative and practical; New plant varieties granted variety rights only require specificity, not creativity and practicality.
3. The protection scope of new plant variety right and invention patent right is different.
Legal basis:
Article 25 of the Patent Law of People's Republic of China (PRC) does not grant patent right to the following items:
(1) scientific discoveries;
(2) rules and methods of intellectual activities;
(3) Methods of diagnosis and treatment of diseases;
(4) Species of animals and plants;
(5) substances obtained by nuclear transformation;
(six) the design of the pattern, color or the combination of the two.
The production method of the products listed in Item (4) of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law.