Abstract

AbstractChina has achieved remarkable results for the protection of new plant varieties since it promulgated and implemented “Regulations for the Protection of New Plant Varieties” in 1997. However, as a whole, the level of legislation is still at an early stage, primarily referencing to the UPOV Convention and the legal content of other countries. The legislation has not yet set up the ultimate goal and reasonable protection measures that would meet China’s current actual needs. The chapter discusses the status of protection of new plant varieties in China and characteristics. It then analyzes the major deficiencies and shortcomings of existing laws and explores the main reasons behind. This chapter proposes a number of specific measures for perfecting the legal system for the protection of new plant varieties in China before it ends with a conclusion.

Highlights

  • China has achieved remarkable results for the protection of new plant varieties since it promulgated and implemented “Regulations for the Protection of New Plant Varieties” in 1997

  • This chapter proposes a number of specific measures for perfecting the legal system for the protection of new plant varieties in China before it ends with a conclusion

  • The value objective established by this legal system is mainly to obtain personal economic benefits through legitimate breeding labor1

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Summary

The General Background

China is one of the oldest civilizations in the world and has a vast territory. From north to south, it spans the cold temperate zone, temperate zone, warm temperate zone, subtropical zone, and tropical zone. Hou kinds of higher plants in China, ranking third after Brazil and Colombia This rich plant resource has laid a solid foundation for the cultivation of new plant varieties in China and for the enhancement of the protection of new plant varieties. In the revision of the Seeds Law in 2015, a section on the protection of new plant varieties was added; and the Supreme People’s Court has promulgated the judicial interpretation to deal with this issue. It is worth noting that the Ministry of Agriculture and Rural Affairs has issued the following important regulations, including “Nomenclature of Agricultural Plant Varieties,” “Registration Guidelines for Non-major Crop Varieties,” “Registration Measures for Non-major Crop Varieties,” “The Measures for the Protection of Agricultural Wild Plants,” and “Administrative Measures on Crop Germplasm Resources,” which reflect the fact that the Ministry is continuously refining and improving this legal system

The Research Status of Protection of New Plant Varieties
The Total Number of Breeders’ Rights Granted in China by June 2018
Period Needed for Applying for Breeders’ Rights in China
Foreign Applicants Obtaining Breeders’ Rights in China
Commercial Use of Breeders’ Rights in China
Chinese Applying for Breeders’ Rights with Foreign Countries
Dispute Over Ownership and the Right to Apply for Breeders’ Rights
Fabricating a Variety Name
Forging or Imitating Another Person’s Authorized Variety
Unauthorized Use of Authorized Varieties of Others Currently in
Plundering Others’ Right to Apply for Breeder’s Rights
Stealing Others’ Authorized Varieties
Using Essentially Derived Varieties
Over Commissioning Production Seeds
Arising from Transfer Contract or License Contract
Over Contracts on Breeding New Plant Varieties
Overall Lower Level of Protection
Serious Disconnect Between New Plant Varieties and Agricultural and Forestry Production
The Social Effects of the Existing Legislative Content Are Not Ideal
The Influence and Role of Social Status on Legal Status
Treating New Plant Varieties Simply as an Ordinary Commodity
Some Law Has Fallen into the Shadow of Foreign Law
The Spirit and Rationale of Law Are Affected by Times
Institutions Authorizing Breeder’s Rights Should Be Unified
To Apply the 1991 UPOV Convention Text as Soon as Possible
To Revise and Improve the Legal Regimes on New Plant Varieties
To Set Up Special “Variety Name Rights”
To Add the Requirement of Practicality as One Condition for Obtaining the Breeder’s Rights
To Establish a Professional Qualification Restriction System for Infringers
To Set Up a System of “Statutory Starting Point for Damages” in Legal Liability
To Set Up Clear Criminal Responsibility In China’s Criminal
To Establish “Unified Jurisdiction of the Same Infringement Series of Cases”
To Add “Special Rights of Farmers”
Findings
Conclusion
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