Implementing Rules for the Regulations of the Peoples Republic of China on the Protection of New Var

IMPLEMENTING RULES FOR THE REGULATIONS OF THE PEOPLES REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF PLANTS

(AGRICULTURE PART)

Promulgated by the Ministry of Agriculture on April 27, 1999

CHAPTER I

General Provisions

Rule 1

These Rules are formulated in accordance with the Regulations of the People’s Republic of China on the Protection of a New Varieties of Plants (hereinafter referred to as the Regulations).

Rule 2

New varieties of agricultural plants shall include those of grains, cotton, oil seeds, hemp, sugar crops, vegetables (including water melon and mask melon), tobacco, mulberries, tea shrubs, fruit trees (except dry fruit), ornamental plants (except woody plants), grass, green manure, herbaceous medicinal materials and tropical crops such as rubber.

The provisions of these Rules shall apply to the protection of new varieties of edible fungi.

Rule 3

The Ministry of Agriculture shall be the authority for examining and approving rights in new varieties of agricultural plants (hereinafter referred to as variety rights) under Article 3 of the Regulations, and shall grant such rights in accordance with the provisions of the Regulations.

The Office for the Protection of New Varieties of Agricultural Plants under the Ministry of Agriculture (hereinafter referred to as the Office of Agriculture) shall undertake the tasks of receiving and examining applications for variety rights, and shall deal with other related matters.

Rule 4

No variety rights shall be granted to any new variety of plants that is harmful to the public interest and the ecological environment.

CHAPTER II

Content and Ownership of Variety Rights

Rule 5

The propagating materials referred to in the Regulations shall mean both the seeds and other parts of the body of a plant, which can propagate plants.

Rule 6

Entities or persons applying for variety rights are generically designated as applicants for variety rights; and entities or persons granted with variety rights are generically designated as variety rights holders.

Rule 7

Service breeding accomplished by any person in undertaking tasks for the entity to which he belongs as referred to in Article 7 of the Regulations shall mean the following:

(i) breeding accomplished in the course of performing his own duty;

(ii) breeding accomplished in the execution of any task other than his own duty, but assigned by the said entity;

(iii) breeding accomplished within three years from his resignation, retirement or transfer, and related to his work in the entity from which he resigns, retires or is transferred, or to the tasks assigned to him by that entity

The facilities of the entity referred to in Article 7 of the Regulations shall mean the financial resources, instruments and equipment, and testing sites of the entity, as well as the breeding materials and technical information owned or held by the entity, whose disclosure to the public is not yet authorised.

Rule 8

The person who has accomplished the breeding of new varieties as referred to in Article 8 of the Regulations shall mean any entity or person who has accomplished the breeding of new varieties.

Rule 9

The person who has accomplished the breeding of new varieties (hereinafter referred to as the breeder) shall mean the person who has made creative contributions to the breeding of new varieties. Those who are responsible only for organizational and managerial work, facilitate access to facilities, or perform other auxiliary functions shall not be considered as breeders.

Rule 10

Where two or more applicants apply separately for the same variety rights simultaneously, the Office of Agriculture may require the applicants to provide, within a fixed time limit, evidence to prove that he is the person who has first accomplished the breeding of the new variety concerned. Where no evidence is provided within the said time limit or where the provided evidence is not sufficient to serve as the basis of a judgement, the applicants shall decide upon ownership of the right to file an application by consultation among themselves; where a decision cannot be arrived at by consultation, the Office of Agriculture may refuse their applications.

Rule 11

If a Chinese entity or person wishes to assign to a foreigner the right to file an application or the variety rights in respect of a new plant variety bred in China, such assignment shall

be subject to examination and approval by the Ministry of Agriculture. Where it concerns service breeding, the assignment shall be examined, verified and approved by the administrative departments of agriculture of the provincial People’s vernments (and for national entities, by their competent authorities) before its submission to the Ministry of Agriculture; where it does not concerns service breeding, it shall be submitted directly to the Ministry of Agriculture for examination and approval. If a State-owned entity wishes to assign the right to file an application or the variety rights within China, such assignment shall be subject to approval by the competent administrative department at a higher level, to which the entity is subordinate.

The Ministry of Agriculture shall publish the assignment of the right to file an application or of the variety rights, which shall enter into force on the date of its publication.

Rule 12

The Ministry of Agriculture may decide to grant a compulsory license to produce, sell and exploit new varieties of plants under any of the following circumstances:

(i) where it is necessary for the national or public interest;

(ii) where the variety rights holder has no justifiable grounds not to exploit the variety himself nor to authorize its exploitation by others under reasonable conditions;

(iii) where, in respect of a variety of important crops, although the variety rights holder has already exploited them, his exploitation clearly cannot meet the demands of the domestic market, and he does not authorize its exploitation by others under reasonable conditions.

Where a compulsory license is requested, a request to that effect shall be made to the Ministry of Agriculture, stating the grounds thereof and accompanied by supporting documents each in two copies.

Rule 13

Any party who requests for adjudication of the exploitation fees by the Ministry of Agriculture under paragraph 2 of Article 11 of the Regulations shall make a request to that effect, accompanied by supporting documents that can show the failure to reach an agreement. The Ministry of Agriculture shall adjudicate within three months from the date of receipt of the request and shall notify the parties concerned accordingly.

CHAPTER III

Conditions for the Grant of Variety Rights

Rule 14

In accordance with the provisions of Articles 45 of the Regulations, the Ministry of Agriculture may grant variety rights where, within two years from the date of publication of the list of protected new plant varieties, an application for variety rights is filed in respect of the genera and species first included in the said list before the entry into force of the Regulations and those added thereto after the entry into force of the Regulations, provided that the propagating materials of the variety in respect of which variety rights are applied for have not been for sale, with the consent of the variety holder, for more than four years within the territory of China, and that the requirements for distinctness, uniformity, stability and the denomination are complied with.

Rule 15

In accordance with the provisions of Article 18 of the Regulations, any of the following shall be avoided in the selection of a denomination for a new variety:

(i) those consisting of only numbers;

(ii) those in violation of national laws or social morals, or with ethnic discriminations;

(iii) those using the names of countries;

(iv) those using the names of places of administrative districts at county level or above, or the names of well known places in foreign countries;

(v) those using the same or similar identifying names of intervernmental international organizations or famous international or national organizations;

(vi) those that are liable to mislead as to the features or characteristics of the new variety of plant, or as to the identity of the breeder;

(vii) those that are the known denominations of the same or similar genera or species of plants;

(viii) those with an effect of exaggeration in their promotion.

CHAPTER IV

Application for Variety Rights and Receipt thereof

Rule 16

Where Chinese entities and persons apply for variety rights, they may file an application with the Office of Agriculture directly or through a representative agency designated by the said Office.

Rule 17

Where foreigners, foreign enterprises or other foreign organizations with no habitual residence in China apply for variety rights, they shall file an application with the Office of Agriculture through a representative agency designated by the said Office for relations with foreigners.

Rule 18

Any applicant who appoints a representative agency to apply for variety rights or to handle other matters before the Office of Agriculture shall file at the same time a power of attorney, specifying the scope of power entrusted. The Office of Agriculture shall directly contact the representative agency for related procedures.

Where two or more applicants are concerned and no representative agency is appointed, one of them shall be indicated as the representative.

Rule 19

For the purpose of applying for variety rights, an application, a description (including the abstract of the description and the technical questionnaire) and a photograph shall be filed, each in two copies, with the Office of Agriculture.

Rule 20

An application shall include the following elements:

(i) a provisional denomination of the new variety;

(ii) the denomination both in Chinese and in Latin of the genera and species to which the new variety belongs;

(iii) the name of the breeder;

(iv) the name, address, postal code, contact person, telephone number and fax number of the applicant;

(v) the nationality of the applicant;

(vi) where the applicant is a foreign enterprise or another organization, the name of the country in which its headquarters is located;

(vii) the starting and ending dates for the breeding of the new variety and the main region where the breeding is conducted.

Rule 21

A description shall include the following elements:

(i) a provisional denomination of the new variety, which shall be the same as that in the application;

(ii) the denomination both in Chinese and in Latin of the genera and species to which the new variety belongs;

(iii) an indication on the background information concerning the comparison between the new variety and similar varieties both at home and abroad;

(iv) an indication on the breeding process and methods, including the genealogical table, cultivating details and the parent seeds or propagating materials used;

(v) an indication on its sale;

(vi) a detailed description of distinctness, uniformity and stability;

(vii) an indication on the region or environment suitable for its growing and on the cultivating techniques.

The description shall not contain statements with an effect of depreciating other plant varieties or exaggerating the practical value of the new variety. The technical questionnaire may be submitted when the examination fee is paid.

Rule 22

The photograph referred to in Article 21 of the Regulations shall conform to the following requirements:

(i) helpful to illustrate the distinctness of the variety in respect of which the application is filed;

(ii) showing on the same photograph the comparison concerning one kind of characters;

(iii) in colour, or in black and white as may be required by the Office of Agriculture, where necessary;

(iv) of a size of 8.5cm x12.5 cm or of 10 cm x15 cm;

(v) accompanied by a brief graphic description.

Rule 23

The Office of Agriculture shall not receive any of the following application documents for variety rights:

(i) where any of the request, description or photograph is missing;

(ii) where Chinese is not used;

(iii) where the prescribed format is not used;

(iv) where they are not typed or printed;

(v) where they are illegible or altered;

(vi) where the name, address or postal code of the applicant is missing.

Rule 24

Where the Office of Agriculture deems it necessary, the applicant should furnish the propagating materials of both the variety in respect of which the application is filed and the variety for comparison, for the purpose of examination and testing of the variety in respect of which the application is filed.

Rule 25

The propagating materials furnished by the applicant shall be in consistence with those of the new variety of plant as described in the application documents for variety rights, and shall conform to the following requirements:

(i) not having suffered from accidental damage or been under chemical treatment;

(ii) free from quarantinable and harmful organisms;

(iii) recently harvested if the propagating materials furnished are seeds.

The propagating materials shall be furnished in such a manner as to comply with the requirements concerning the date, quantity, quality and other requirements as prescribed by the Office of Agriculture and in Rules 26, 27 and 28 of the present implementing Rules. Where propagating materials are not furnished within the time limit or not in the prescribed manner, the application shall be deemed to have been withdrawn.

Rule 26

The applicant shall furnish the propagating materials within three months from the date of receipt of the notification to that effect by the Office of Agriculture. Where seeds are concerned, the applicant for variety rights shall send them to the culture collection centres published by the said Office; where asexual propagating materials such as seedlings, bulbs, tubers and roots are concerned, the applicant shall send them to the testing institutions designated by the said Office.

Rule 27

The propagating materials shall be subject to quarantine in accordance with relevant provisions. Those found unacceptable upon quarantine or not quarantined shall be refused by the culture collection centers or the testing institutions.

Rule 28

Where the quantity of the propagating materials furnished by the applicant is less than that prescribed by the Office of Agriculture, the culture collection centre or the testing institution shall notify the applicant to furnish the missing amount within one month from the date of receipt of the notification. In exceptional cases, however, where propagating materials have been furnished by the applicant in the prescribed quantity, but are still not sufficient for the purposes of testing or examination, the Office of Agriculture shall have the right to require the applicant to furnish the missing amount.

Rule 29

The culture collection centre or the testing institution shall issue a written note of acknowledgement upon receipt of the propagating materials furnished by the applicant, and shall finish its testing and examination on viability and other aspects within 20 days (except for plants with rest period) from the date of receipt of the propagating materials.

Where the said materials are found acceptable upon examination, the culture collection centre or the testing institution shall issue a written certificate of examination, and shall notify the Office of Agriculture accordingly. Where the propagating materials are found unacceptable upon examination, the culture collection centre or the testing institution shall notify the applicant to furnish new propagating materials of the variety in question within one month from the date of receipt of the notification.

Rule 30

The culture collection centre and the testing institution shall have the responsibility to keep confidential the propagating materials furnished by applicants, and shall prevent the said materials from loss, theft or other accidents both during the period of examination of the application for variety rights and within the term of protection after the grant of such rights.

Rule 31

Where a priority right is claimed under Article 23 of the Regulations, the applicant shall indicate in the application the filing date and number of the initial application for variety rights as well as the name of the country that has received it; in the absence of such indications, the priority right shall be deemed not to have been claimed. The copy of the initial application submitted by the applicant shall be certified by the original receiving authority.

Rule 32

When an applicant with no habitual residence or establishments in China applies for variety rights or claims a priority right, the Office of Agriculture may, where it deems necessary, require him or it to file the following documents:

(i) a certificate of his nationality;

(ii) where the applicant is an enterprise or another organization, documents certifying the location of its establishments or its headquarters;

(iii) documents certifying that the country to which the foreigner, the foreign enterprise or other foreign organization belongs recognizes the entitlement of Chinese entities and persons, under the same conditions as its own nationals, to the right to file an application for rights in new varieties of plants, the priority right and other rights related to variety rights in that country.

Rule 33

Where an applicant files an application for variety rights in a foreign country after having filed one with the Office of Agriculture, he or it may request the Office of Agriculture to issue a certificate concerning the priority right.

Rule 34

Where, under paragraph 2 of Article 19 of the Regulations, the new plant variety in respect of which Chinese entities and persons apply for variety rights involves national security or major interests and therefore needs to be kept confidential, the applicant shall indicate this fact in the application. The Office of Agriculture shall make a decision, upon examination, as to whether it should be dealt with as a confidential application, and shall notify the applicant accordingly; where the Office of Agriculture considers it necessary to keep an application confidential even though the applicant has not made such an indication, the said Office shall deal with it as a confidential application, and shall notify the applicant accordingly.

CHAPTER V

Examination and Approval of Variety Rights

Rule 35

In the procedures of preliminary examination, substantive examination, re-examination and invalidation, any person who carries out examination or re-examination under any of the following circumstances should withdraw on his own initiative; the parties concerned or any other interested person may challenge his presence:

(i) where he is a close relative of the party concerned or his agent;

(ii) where he has a direct interest in the application for variety rights or in such rights;

(iii) where he has such other kinds of relations with the party concerned or his agent that might affect impartial examination and handling.

The withdrawal of a person carrying out examination shall be decided upon by the Office of Agriculture, and the withdrawal of a person carrying out re-examination shall be decided upon by the Ministry of Agriculture.

Rule 36

Where an application for variety rights involves two or more new varieties, the Office of Agriculture shall, before it sends an invitation for the payment of examination fee, request the applicant to file a divisional application. If the applicant does not divide his application or does not give any response within the fixed time limit, the application shall be deemed to have been withdrawn.

Rule 37

A divisional application filed under Rule 36 of these Rules may keep the filing date of the application from which it is divided, and where priority right is claimed, also the date of priority right, provided that the divisional application does not beyond the scope of the initial application for variety rights.

A divisional application shall be subject to relevant procedures under the provisions of the Regulations and these Rules.

The number and the filing date of the application from which it is divided shall be indicated in the request for a divisional application. Where priority right is claimed, a copy of the priority document of the initial application shall be submitted.

Rule 38

In accordance with the provisions of Article 27 of the Regulations, the Office of Agriculture shall carry out a preliminary examination on the application for variety rights, and shall notify the applicant of its examination result. In the case of any doubts, the Office of Agriculture may request the applicant to make observations or amendments within a prescribed time limit; if the applicant does not make a response within such time limit, the application shall be deemed to have been withdrawn. Where the Office of Agriculture finds it not in conformity with the relevant provisions even after the applicant has made observations or amendments, the Office shall refuse the application.

Rule 39

With the exception of the application for variety rights, any document related to it filed by the applicant with the Office of Agriculture that has any of the following irregularities shall be deemed not to have been filed:

(i) failure to use the prescribed format or to comply the requirements concerning the indications;

(ii) failure to file supporting document as prescribed.

The Office of Agriculture shall notify the applicant of its findings that the application is deemed not to have been filed.

Rule 40

During the period beginning on the date on which an acceptable application is published upon preliminary examination and ending on the date of grant of variety rights, anyone may raise an objection with the Office of Agriculture to the application for variety rights which is not in conformity with the provisions of the Regulations, and shall state the grounds thereof.

Rule 41

Amendments to the description of the application for variety rights shall be in the form of replacement sheets in a prescribed format, except for the alteration, insertion or deletion of a few words.

Rule 42

In accordance with the provisions of the Regulations and these Rules, an application for variety rights shall be refused upon substantive examination under the following circumstances:

(i) where any of the provisions in Articles 13, 14, 15, 16 and 17 is not complied with;

(ii) as prescribed in Rule 4 of these Rules;

(iii) where any amendment to the application or to the divisional application es beyond the scope of the initial description in terms of its substance.

Rule 43

Applicants shall through the procedures for receiving a certificate for variety rights and for paying the annual fee for the first year within three months from the date of receipt of the notification by the Office of Agriculture concerning such procedures.

Where the procedures are completed within the prescribed time limit, the Ministry of Agriculture shall grant variety rights, issue a certificate for such rights, and publish the grant accordingly. The variety rights shall come into force on the date of issuance of the said certificate.

Where the procedures are not completed within such time limit, the granted variety rights shall be deemed to have been renounced.

Rule 44

The Ministry of Agriculture shall invite experienced specialists on plant breeding and cultivation as well as legal experts and administrative personnel to form the Re-Examination Board for New Varieties of Plants (hereinafter referred to as the Re-Examination Board).