Intellectual Property and Plant Variety Protection are developing quickly in China

China is a rapidly growing market for plant breeders and the industry is just beginning to discover its true potential. With a government policy in place to modernize agriculture and a shift towards larger scale farming models, we can expect to see more and more demand from China for foreign plant varieties. At the same time, movement to more sophisticated farming models makes the Chinese market increasingly attractive. When it comes to IP, a well thought-out strategy is a must for foreign breeders operating in, or looking to enter, the Chinese market. This article highlights some points to get you started on your China IP checklist.

Protectable genera and species

At the time of writing, China offers Plant Variety Rights (PVR) protection for 344 genera and species. The Ministry of Agriculture lists 138 genera and species for protection while the State Forestry Administration lists 206. The respective lists are published on each department’s website and new varieties are periodically added to these lists.

The scope of the right

PVR in China attaches to the propagating material of the variety and covers the acts of propagation, production, sale and repeated use to produce propagating material of another variety for commercial purposes. Propagating material is broadly defined to include the whole plant and any part of the plant for forest crops and plant material or other parts of the plant that can be propagated for agricultural crops. Applying these definitions, it would follow that for some crops the scope of the right attaches to flowers and even fruits.

A farmers’ exemption is provided which allows ‘nongmin’ to self-propagate, self-use the propagating material of protected varieties without obtaining permission from or paying royalties to the breeder. The term nongmin directly translates into English as “rural person” but  is more often translated as “peasant” which suggests that the farmers’ exemption has a limited scope and does not generally apply to all engaged in farming. However, the exact scope is unclear and remains open to  interpretation for farmers of significant scale in terms of fruit and ornamental crops.

Some notable developments:

  • As of 1 April 2017, the Chinese PVR offices cancelled all official fees for PVP applications.
  • In 2018, the UPOV PRISMA online application tool has become available for lettuce and rose variety applications in China which includes a translation function of application data.
  • There are now three specialized intellectual property (IP) courts in Beijing, Shanghai and Guangzhou and 15 specialized IP tribunals across various provinces, responsible for PVR matters within their respective territorial jurisdictions.

Objectives for horticulture moving forward

Intellectual Property and Plant Variety Protection are developing quickly in China and conceptions about the impossibility of protecting and enforcing IP are now quite outdated. However, there is still room for improvement, especially for fruit and ornamental crops. In particular, the industry would like to see the following:

  • opening protection to all species and genera
  • clear application of the right to harvested material directly and per se, or otherwise in line with the application to harvested material under UPOV 1991
  • removal of the farmers’ exemption from vegetatively propagated fruit and ornamental crops
  • introduction of an essentially derived variety (EDV) concept where all mutants and genetically modified organisms (GMOs) are deemed to be EDVs.

There has been talk about revision of China’s PVR regulations for some time. However, a number of developments, including the elevation of a number of PVR provisions into the recently amended Seed Law and advocacy from the seed industry during the Two Sessions (两会) meeting earlier this year, suggest that a new PVR law in China may be imminent.

CIOPORA will continue to closely monitor these developments and share information with the Chinese government about the requirements of breeders of vegetatively reproduced ornamental and fruit varieties.

Author: Alanna Rennie

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