Rules to protect plant varieties in China

Ahuja's World Patent & Trademark News Vol. 1 No. 2 - 9 April 1998

Patents & Designs - China (PRC)

RULES INTRODUCED TO PROTECT NEW PLANT VARIETIES IN CHINA Rules effective from October 1, 1997

China has introduced regulations on the protection of new plant varieties in October 1997. The salient features are:

* The duration of protection conferred upon the proprietor of a plant variety right is 20 years for vines, forest trees, fruit trees and ornamental plants and 15 years for all other plant varieties.

* The rights conferred upon a proprietor under a plant variety certificate provide the proprietor with exclusive rights to produce and sell the propagating material for commercial purposes of that new plant variety throughout the duration.

* The plant must be distinguishable from any other known plant variety and must be capable of consistency upon repeated reproduction. The new variety must also be properly named.

* The novelty criteria of a new plant variety require the plant to be new over any other known plant variety and operate on a first-to-file system.

* A grace period to allow the application for the new plant variety to be

filed within one year of the first sale of the breeding material within China. For those varieties sold outside China, a 6year grace period is provided for vines, forest trees, fruit trees and ornamental plants and 4 years for all other plants.

* Priority can be claimed from the first application filed in another territory subject to there being an appropriate international treaty or reciprocal agreement between China and the other territory.

* A new plant variety application is made to the appropriate authority and accompanied by an application, specification and photograph of the variety. Upon application, an initial preliminary examination looks at the right to priority, novelty and whether the variety has been properly named. A subsequent substantive examination looks at the matters of distinctiveness, uniformity and stability.

* Action can be taken against infringement of plant variety right through making a request to the Administrative Departments of Agriculture and Forestry. As with other administrative enforcement, this action will generally be taken at a provincial level.

Asia Intellectual Property Bulletin, Jan 1998 Deacons Graham & James, Hong Kong