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Rules for Implementation of the Regulations of the People's Republic of China
On the Protection of New Plant Varieties
(Forest Part)
General Provision
This Byrules is formulated in accordance with the Regulations of the People's Republic of China on the Protection of New Plant Varieties (hereinafter referred as the Regulations)
New Plant Varieties in this Byrules refer to, as defined in Article 2 of the Regulations, the varieties of forest trees, bamboo, and woody rattan, ornamental woody plants (including flowering woody plants), fruit trees (nut trees), woody plants for oil products, plants for beverage production, plants for condiment production and medicinal woody plants.
The list of the protected plant varieties shall be determined and announced by the State Forestry Administration.
The State Forestry Administration receives and examines the applications for the rights of new plant varieties and grants the rights of new plant varieties (hereinafter referred as variety rights) in accordance with the Regulations and the Byrules.
The Office of Protection of the Rights of New Plant Varieties of the State Forestry Administration (hereinafter referred as the Office of New Plant Variety Rights Protection) is responsible for the receipt and examination of applications for rights of new varieties defined in Article 2 of this Byrules, the organization of tests and preservation related to the protection of the new plant variety rights and the international services concerned with new plant variety rights protection according to relevant regulations of the state.
Contents and ownership of Variety Rights
The propagating material defined in the Regulations, refers to the whole plant (including nursery stock), seed (including root, stem, leaf, flower and fruit etc.) or any part of the plant body (including tissue and cell).
The on-job breeding described in Article 7 of the Regulations refers:
1) the breeding accomplished in duty work;
2) the breeding accomplished in off-duty work assigned by the unit to which the breeder belongs;
3) the breeding accomplished in connection with duty work or assigned off-duty work in a former unit within three years after leave from a job; or
4) the breeding accomplished with use of fund, instrument, equipment, testing facilities, breeding resources and other propagating material as well as not-open-to-the–public technical information of the unit to which the breeder belongs.
All other breeding not covered by the above definitions is regarded as off-job breeding.
The breeder who has accomplished the breeding of the new plant variety, the applicant for the variety rights and the variety right holder referred in Article 8 of the Regulations can be either a unit or an individual.
Where two or more applicants apply separately for the variety rights of the same new plant variety on the same date, the Office of New Plant Variety Rights Protection may request the applicants to reach an agreement on the rights of filing application for variety rights by negotiating among themselves. If the applicants fail to reach an agreement, the Office of the of New Plant Variety Right Protection shall request the applicants to provide t within a prescribed period he evidence to prove that who is the earliest person who has done the breeding of the new variety. In case no evidence is provided within the time limit, the application shall be regarded as having been renounced .
Where a Chinese unit or an individual intends to transfer the application right (the right of making an application for variety rights) or the variety rights to a foreigner of a new plant variety bred by themselves in China, the unit or the person shall report to the State Forestry Administration for approval.
Where a State-owned unit intends to transfer the application right or the variety rights to a Chinese citizen within the country, approval shall be given by a higher level competent authority.
In case of transferring the application right or the variety rights, the concerned parties shall make a written contract and register with the State Forestry Administration. The State Forestry Administration shall publicly announce the transfer.
The transfer of the application right or the variety rights shall be put into practice from the date of the announcement.
In accordance with Article 11 of the Regulations, the State Forestry Administration may decide or may decide at request by the concerned parties to grant a compulsory license to exploit new plant varieties in any of the following cases:
1) Special needs of the country's interests or the public interests; or
2) The variety rights holder does not or does incompletely exploit by himself the new plant variety without appropriate reasons nor permit others to make use of the new plant variety under reasonable conditions.
The unit or the individual requesting a compulsory license shall make an application to the State Forestry Administration with justifications and relevant evidences. Both the application and the proof materials shall be in duplication.
In accordance with Provision 2, Article 11 of the Regulations, where the State Forestry Administration is requested to adjudicate the amount of the compulsory license fee for using the new plant varieties, the concerned parties shall submit a request for adjudication with relevant documents indicating that an agreement was not reached. The State Forestry Administration shall make the adjudication and notify the concerned parties within three months starting from the date of receiving the request.
Conditions for the Grant of Variety Rights
Where the variety rights are granted, it shall be in conformity with Articles 13, 14,15, 16,17,18 of the Regulations and Article 2 of the Byrules.
In accordance with Article 45 of the Regulations, for varieties of genera or species that has been put in the first list of variety rights protection either before or after the Regulations being put into practice and their variety rights have been applied for within one year from the date of publication of the list, if propagating material of the concerned varieties has been traded within China for less than four years with the consent of the breeder, the plant varieties shall be deemed to possess novelty.
Besides the provisions of Article 16 of the Regulations, the following shall also be avoided in the selection of a denomination for a new variety:
1) those violating the state laws and provisions of the administrative regulations or those with racial discrimination;
2) those named after a country;
3) those named after a place of an administrative regions at county level or above or a
well-known place of a foreign country; or
4) those same as or similar to the denomination of inter –governmental international organizations, other internationally or domestically well-known organizations ; or
5) those same as or similar to known denomination of a genera or species.
Application and Grant for Variety Rights
Where any Chinese unit or individual applies for variety rights, the application may be made to the State Forestry Administration directly or entrust a representative agency appointed by the State Forestry Administration for the purpose.
Where a new plant variety of which the variety rights have been applied for by a Chinese institution or an individual involves national security or interests and needs to be kept confidential, the applicant shall give clear indication of it in the application documents. The Office of the Protection of New Plant Varieties shall handle the case in accordance with the state regulations concerning the confidentiality and then notify the applicant accordingly. Where the Office of the Protection of New Plant Varieties deems that the new plant variety needs to be kept confidential, but it is not indicated in the application documents by the applicant, the Office of the Protection of New Plant Varieties shall address it as a confidential application and notify the applicant accordingly. Article 16
If a foreigner, a foreign enterprise or any other foreign organization files an application for variety rights to or handle other matters concerned with variety rights with the State Forestry Administration, a representative agency dealing with foreign affairs, which is appointed by the State Forestry Administration, shall be entrusted for the purpose.
Where any applicant entrusts the representative agency to file an application for the variety rights to or handle other relevant matters with the State Forestry Administration , a trust deed shall be submitted, stating the terms of reference of the trust.
In case there are two or more applicants and they have not entrusted any representative agency, one of them shall be chosen as the representative and a written document shall be prepared. Article 18
Where any applicant files an application for variety rights, the application forms prescribed by the State Forestry Administration and photographs in format as described in the Article 19 of this Byrules, shall be submitted in duplication to the Office of the Protection of New Plant Varieties. Article 19
The photographs referred in Article 21 of the Regulations shall be in conformity with the following requirements:
1) be conducive to identify the distinctness of the concerned plant variety of which the variety rights have been application for;
2) the comparison of one characteristic is shown on the same photograph;
3) the photographs shall be in color;
4) the size of the photographs shall be either 8.5 cm x 12.5 or 10cm x 15 cm; and
5) a brief caption for each of the photographs shall be provided and if necessary, the Office of the Protection of New Plant Varieties may request the applicant to provide black and white photographs.
The Office of the Protection of New Plant Varieties shall not accept the application for variety rights when the submitted application documents are in any of the following cases:
1) the documents are incomplete or not in conformity with the prescribed forms;
2) the writing is unclear or severely altered; and
3) Chinese language is not used.
The Office of the Protection of New Plant Varieties may request the applicant to submit the propagating material of the variety of interest and the reference variety for the purpose of examination and inspection.
The applicant, within three months from receiving the acknowledgement of receipt of application sent by the Office of Protection of New Plant Varieties, shall deliver the propagating material. Where seeds are delivered, they shall be delivered to the preservation agency appointed by the Office of the Protection of New Plant Varieties; where vegetative propagating material is delivered, it shall be delivered to the testing agency appointed by the Office of the Protection of New Plant Varieties.
Where the applicant fails to deliver propagating material within the time limit, the application shall be regarded as having been renounced.
Propagating material delivered by applicant shall be quarantined in accordance with relevant regulations of the state; in case the propagating material, which has to be quarantined, has not been quarantined or has failed to pass the quarantine, the preservation agency or testing agency shall not accept the material.
Where the propagating material submitted by the applicant does not meet the requirements for testing or inspection, the Office of the Protection of New Plant Varieties may request a resubmission of propagating material.
If requirements still can not be met after three times of resubmission, the application shall be regarded as having been renounced.
The propagating material submitted by the applicant shall be in conformity with the following requirements:
1) be identical with the propagating material of the concerned new plant variety described in the documents of the application for variety rights;
2) be recently harvested or collected;
3) be free of disease and pest; and
4) not be treated with chemicals.
If the propagating material submitted by the applicant has undergone chemical treatment, the name of the chemical, the method and purpose of the treatment shall be attached with the propagating material. Article 26
Upon receiving the propagating material delivered by the applicant, an acknowledgement shall be sent to the applicant by the preservation or testing agencies.
When the propagating material submitted by the applicant have passed the qualification inspection, the preservation agency or the testing agency shall issue the qualification certificate of inspection in writing to the applicant and at the same time report to the Office of the Protection of New Plant Varieties; where the propagating material fails to pass the inspection, the preservation agency or the testing agency shall report to the Office of the Protection of New Plant Varieties. The Office of the Protection of New Plant Varieties shall handle the case in accordance with the relevant regulations afterwards.
The preservation agency and the testing agency shall keep the propagating material delivered by the applicant secrete and take good care of it during the period of the examination of the application for variety rights and within the period before the variety rights expires.
Any foreign people, foreign enterprise or other foreign organization who does not have permanent residence or business office in China applies for variety rights or claims priority rights, the Office of the Protection of New Plant Varieties may request the applicant to provide the following documents:
1) Proof of nationality;
2) Proof of the address of business office or headquarters if the applicant is an enterprise or other organization; and
3) Proofs of that the country to which the foreigner, the foreign enterprise or other foreign organization belongs recognizes that Chinese organizations or individuals are eligible to the right of application for variety rights, the priority rights and the variety rights in that country with equivalent rights with its own citizens.
Applicant, who has applied for variety rights to the State Forestry Administration applies for variety rights in foreign countries, may request the Office of the Protection of New Plant Varieties to issue the proof of priority rights. If the request is qualified, the Office of the Protection of New Plant Varieties shall issue the proof of priority rights. Article 30
Where the applicant withdraws the application for variety rights, he shall submit to the State Forestry Administration a statement of withdrawal of application, indicating the denomination of the concerned plant variety, the filing number and the filing date.
Where a Chinese organization or an individual intends to apply for variety rights of a new plant variety bred in China in a foreign country, the application shall be registered at the State Forestry Administration.
Examination and approval of Variety Rights
During the preliminary examination of the application for variety rights, the State Forestry Administration may request the applicant to state his views or make amendment on some issues concerned within a set period.
Where an application for variety rights contains two or more applications, the Office of the Protection of New Plant Varieties shall, prior to notifying for the substantial examination, may request the applicant to make separate applications within a set period. If the applicant fails to do so by modifying the application or gives no response to the request within the set period, the application shall be regarded as having been withdrawn. Article 34
The separate applications made in accordance with Article 33 of this Byrules may retain the original submission date. Priority rights may also be retained for the separate application if the original application has priority rights, but it shall not exceed the scope of the original application.
The separate applications shall follow all procedures in accordance with the provisions of the Regulations and this Byrules.
The reference number and submission date of the original application shall be indicated in the application forms of the separate applications. If the original application possesses priority rights, a copy of the priority certificate shall be submitted.
Applications for variety rights qualified to be in conformity with the Regulations and this Byrules by the preliminary examination shall be announced by the State Forestry Administration.
From the date of announcing the applications for variety rights until the date of granting the variety rights, any person may submit oppositions to any of the announced applications contradictory with the Regulations and this Byrules to the State Forestry Administration with justifications.
In case of modifications are needed for the application documents, only changes to single words and single deletion or addition are allowed, otherwise the page shall be replaced with a new one in required format.
Where the application for variety rights are proved to be in conformity with the Regulations by the substantial examination, the State Forestry Administration shall decide to grant the variety rights, issue the certificate for the variety rights to the applicant and make registration and announcement.
The applicant shall go to get the certificate and pay the annual fee for the first year according to relevant state regulations within three months from receiving the notice for obtaining the certificate of variety rights. Where the applicant fails to take the certificate of variety rights and to pay the annual fee within the time limit, the variety rights shall be regarded as having been renounced unless there are justifiable reasons.
The Re-Examination Board for New Plant Varieties of the State Forestry Administration (hereinafter referred as Re-Examination Board) consists of experienced experts on plant breeding and cultivation, experts on legislation and other administrative and managerial personnel.
The chairman of the Re-Examination Board shall be appointed by the principal responsible person of the State Forestry Administration.
The Office of the Protection of New Plant Varieties handles matters related to re-examination according to the decision made by the Re-Examination Board.
When appealing for re-examination to the Re-Examination Board in accordance with Provision 2, Article 32 of the Regulations, the applicant shall submit the application forms for re-examination in format required by the State Forestry Administration and provide relevant proof material. The application forms for re-examination and the proof material shall be submitted in duplicate.
Applicants who is appealing for re-examination may make modifications to the rejected application documents for variety rights, but the modifications shall be limited just to the part which caused the rejection of the application.
When application documents of an appeal for re-examination are not in a required format, the applicant shall make modifications within the time limit set by the Re-Examination Board. If the applicant fails to do so or the application documents after modifications still fail to meet the requirements, the appeal for re-examination shall be regarded as having been renounced.
Appeals for re-examination may be withdrawn before the Re-Examination Board makes decision..
Termination and nullification of variety rights
According to Article 36 of the Regulations, for variety rights terminating before the protection period expires, the terminating date is:
1) the date of the statement in case the variety rights holder renounces the variety rights in a written statement;
2) the expiration date of the overdue period for annual fee payment in case the applicant for variety rights fails to pay the annual fee in accordance with relevant regulations; or
3) the date of registration when the State Forestry Administration registers the variety rights in case the variety rights holder fails to provide propagating material of the rights-granted variety required for inspection or the provided propagating material fails to meet the qualification requirements.
4) the date of registration when the State Forestry Administration registers the variety rights in case the concerned rights-granted variety is no longer in conformity with the features or characteristics of the variety when the variety rights were granted.
In accordance with Provision 1, Article 37 of the Regulations, a unit or an individual who requests to nullify the variety rights, shall submit, in duplicates, to the Re-examination Board application forms and relevant documents for the nullification in the format prescribed by the State Forestry Administration. Real facts and justifications shall also be stated in the documents.
Where the granted variety rights do not conform to the provisions of Articles 14, 15,16,and 17 of the Regulations, the Re-Examination Board shall nullify the variety rights using its entitled responsibilities and power or at the written request of any unit or individual.
The nullification of the variety rights shall be registered and announced by the State Forestry Administration and notified to the concerned party by the Office of the Protection of New Plant Varieties.
The Re-Examination Board shall not accept an application for nullification in case either the facts and justification upon which the nullification is based were not indicated in the application documents, or the Re-examination Board has decided to keep the variety rights after examination of the application, but the applicant applies again for nullification of the variety rights with the same facts and justification.
The Re-Examination Board shall, within 15 days from receiving the request for nullification of variety rights of a variety, deliver to the variety rights holder a duplicate of the request and other relevant documents. The variety rights holder shall make response within three months. If the variety rights holder does not respond within the time limit, the examination by the Re-Examination Board shall not be affected.
When the Re-Examination Board decides to change the denomination of a variety of which the variety rights have been granted, the State Forestry Administration shall record and announce the decision. The Office of the Protection of New Plant Varieties shall notify the variety rights holder and change the certificate of variety rights.
After the change of the denomination of the concerned variety, the original denomination shall not be used any more for the variety.
Before the Re-Examination Board makes decision on the application for nullification of variety rights of a variety, the applicant can withdraw the application.
Submission, Delivery and Term of the Documents
All matters prescribed by the Regulations and this Byrules shall be handled in written forms.
All documents submitted in accordance with provisions of the Regulations and this Byrules shall be in Chinese and use the official technical terminology.
For names of foreign people and places and foreign technical terms with no unified Chinese translation, the original language shall be indicated.
If the documents submitted in accordance with the provisions of the Regulations and this Byrules are in foreign languages, Chinese translation of these documents shall be provided the same time. Where the Chinese translation is not provided, the documents shall be regarded as having not been submitted.
All the documents submitted by the concerned party may be typed, or hand-written with fountain pen or brush pen, but the writing shall be neat and clear. All documents submitted shall be in single-sided format.
According to the Regulations and this Byrules, all documents and relevant material submitted to the Office of the Protection of New Plant Varieties by the concerned parties may be submitted either by direct hand-in or by mail. In case of by mail, the postmark date shall be the submission date. Where the postmark date on the envelope is not clearly discernible, the date of receiving the documents by the Office of the Protection of New Plant Varieties shall be the submission date unless the sender can provide proof of sending date otherwise.
In accordance with the Regulations and this Byrules, all the documents and relevant material for the concerned parties may be delivered either by direct hand-in, or by mail or by public announcement. Where the concerned parties entrust a representative agency, the documents and relevant material shall be delivered to the representative agency. Where no representative agency is entrusted, the documents and relevant material shall be delivered to the concerned parties.
According to the above definitions, in case of direct hand-in, the date of hand-in shall be the date of delivery; in case of by mail, the documents and relevant material shall be regarded as the being delivered 15 days after sending out; in case of by public announcement, the documents and relevant material shall be regarded as being delivered two months after the announcement.
When the counting unit of the time limits prescribed in the Regulations and the Byrules are year or month, the corresponding date of the last month of the time limits shall be the date of expiration. Where there is no corresponding date of that month, the last date of that month shall be the date of the expiration. Where the expiration date coincides with a legal public holiday, the first working day after the holiday shall be the expiration date.
In cases that the time limits prescribed in the Regulations or the Byrules were exceeded due to unbearable forces or special circumstances and that loss of the rights has occurred, within two months after the obstacles disappear but at most not more than two years from the expiration date of the time limits, the concerned parties may request for resumption of the rights by explaining the reasons and providing relevant proof to the State Forestry Administration.
The submission date referred in the Regulations and the Byrules shall be the date of the priority right if an application possesses priority rights.
Fees and Announcements
In applying for variety rights, application fee and examination fee shall be paid in accordance with the concerned regulations; testing fee shall also be paid in case the testing is needed. Annual fee shall be paid in case the variety rights have been granted.
Where the concerned parties pay the fees prescribed in Article 56 of this Byrules, the fees may be directly paid in cash or check to the Office of the Protection of New Plant Varieties or by post or bank transfer, but not by telegraphic transfer.
Where the fees are paid by post or bank transfer, the application number or the variety rights certificate number, the name or denomination of the applicant or varieties rights holder, the name of the fee and the denomination of the rights-granted variety shall be provided.
Where the fees are paid by post or bank transfer, the date of transfer shall be the date of payment.
In accordance with Article 24 of the Regulations, any applicant may pay the application fee either at the same time as submit the application for variety rights or within one month after receiving the notice for payment. Where the fee is not paid or paid less than required within the time limit, the application shall be regarded as having been withdrawn. In case the testing fee is to be paid in accordance with the concerned regulations, the payment shall be made within one month after receiving the notice for payment. If the fees are not paid or paid less than required within the time limit, the application shall be regarded as having been renounced.
The annual fee for the first year shall be paid at time when the certificate for variety rights is obtained. The annual fees for the other years shall be pre-paid within one month prior to the expiration of the preceding year.
When a variety rights holder fails to pay in time the annual fees after the first year or the paid amount is not enough, the Office of the Protection of New Plant Varieties shall notify the variety rights holder to pay the annual fee or to pay the deficit, together with an overdue charge of 25% of the annual fee, within six months after the payment of the annual fee is due.
Where a variety rights holder really has difficulty to pay the fees prescribed in Article 56 within 3 years from the date of implementation of the Byrules, the payment may be reduced or delayed if application for such has been made to the State Forestry Administration and has been approved.
The State Forestry Administration regularly publishes announcements on issues of the protection of new plant varieties, announcing application, grant, transfer, heritage and termination of variety rights and other related matters. The Office of the Protection of New Plant Varieties shall set up a register database for variety rights which can be used for recording information on application, grant, transfer, heritage and termination of variety rights and other related matters.
Supplementary Provisions
Where the competent Forestry Authorities at county level or above investigate any case of administrative breaches prescribed by the Regulations, the provisions of the procedures for forestry administrative penalty are applicable.
The counterfeits of rights-granted varieties defined in the Regulations refer to:
1) use of counterfeit certificates of variety rights and variety rights number;
2) use of variety rights certificate and number that have already been terminated or nullified,
3) use of varieties without variety rights to counterfeit the rights-granted varieties,
4) use of one rights-granted variety to counterfeit another rights-granted variety,
5) other cases confusion enough to make people misuse varieties without variety rights as the rights-granted varieties.
Where concerned parties have filed a suit to the People' Court on disputes over the application rights or variety rights for a new plant variety and the suit has been accepted by the court, they shall report to the State Forestry Administration provide proofs showing that the People's Court has accepted the case. The State Forestry Administration shall make decision on suspension or termination of the concerned rights according to the relevant regulations. Article 66
Any staff member who is involved in examination and re-examination during the course of the preliminary examination, the substantial examination, re-examination and nullification of variety rights shall apply for avoidance in any of the following cases, and the concerned parties or others having interests involved may also request for avoidance:
1) be a close relative of the concerned parties or their representative agents;
2) has direct interests in the application of variety rights or in the variety rights;
3) has other relations with the concerned parties or their representative agents which could affect the fairness in the examination and adjudication.
The avoidance of examination staff members shall be decided by the Office of the Protection of New Plant Varieties; the avoidance of the staff members of the Re-Examination Board shall be decided by the State Forestry Administration; the examination and re-examination staff members shall not terminate their duties prior to the approval of the application for avoidance.
With the consent of the Office of the Protection of New Plant Varieties, any person may consult or duplicate the files of application for the variety rights and the published register for the variety rights.
In accordance with the Regulations and the Byrules, the documents of the variety-rights applications that has been rejected, withdrawn or being taken as being renounced, and documents of variety rights that have been renounced, nullified or terminated, shall be destroyed by the Office of the Protection of New Plant Varieties.
When requesting for changes of the applicant and holder for a variety rights, the Office of the Protection of New Plant Varieties shall be approached to complete the procedures for changing the records and to provide the justifications for change and related proofs.
This Byrules shall be interpreted by the Sate Forestry Administration.
This Byrules is taken into effect when it is promulgated.