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International

30-01-2022

The Fourth Amendment to the Seed Law of the PRC: Increasing the Protection of New Plant Variety Rights and Solving the Problem of Homogenization of Seeds

The Decision of the Standing Committee of the National People's Congress on Amending the Seed Law of the People's Republic of China has been adopted on December 24, 2021, and will come into effect on March 1, 2022. This amendment to the Seed Law is the fourth amendment to the Seed Law (“Fourth Amendment”) since its promulgation in 2000. It is a major landmark event in the history of the development of the New Plant Variety Rights (PVR) system in China. The amendment focuses on four aspects: 

Expanding the scope of PVR protection  
To safeguard the legitimate rights and interests of PVR holders, the scope of protection is extended from the propagation materials of authorized varieties to the harvest materials, which can solve the existing problem of the blurred line between propagation and harvest materials of asexually propagated crops and conventional crop varieties.

The protection is also extended from production, propagation and sale to every aspect of the marketing channel, including production, propagation and processing for propagation, offering for sale, sale, import, export and storage. This provides more opportunities for PVR holders to enforce their rights. 

Establishing the system of Essential Derivation Variety (EDV)
Although 68 of the 77 members of the International Union for the Protection of New Varieties of Plants (UPOV) have already implemented the EDV system, China, a UPOV member operating under the 1978 Convention has not established the mechanism for a long time or implemented differentiated protection for original and modified varieties based on the degree of breeding innovation. One of the consequences of the missing EDV system in China is a rise in the annual number of applications and grants for PVR in China but not many excellent and high-value varieties. Seed homogenization is serious issue in China.

EDV is introducing into the upcoming amended Seed Law. the It stipulates that EDVs can be granted PVR, but for commercial purposes the consent of the PVR holder of the initial variety should be obtained. The system will be  a useful mechanism to stimulate innovation and enhance PVR protection. It is worth mentioning that procedures and measures for implementing the EDV system will be formulated by the State Council. We will closely follow up development in this regard.

Strengthening the liability for infringement
In order to improve the deterrence against the PVR infringement, the Fourth Amendment also strengthens legal liability for infringement.

  • Increase the upper limit of the amount of punitive damages from three times to five times of the damages which have been determined based on the losses of the PVR holder or the benefits obtained by the infringer, or the PVR license fee; 
  • to increase the maximum amount of statutory compensation (when the losses or benefits cannot be assessed and determined) from three million yuan to five million yuan; 
  • to clarify that the amount of compensation shall include the reasonable expenses paid by the right holder to stop the infringement; 
  • increase the amount of fines for the illegal acts of producing and operating fake and inferior seeds.

Strengthen the Protection of Germplasm Resources
The Fourth Amendment strengthens the scientific and technological research of the seed industry and the protection of germplasm resources. It is stipulated that the state shall conduct general surveys, collect, sort out, identify, register, preserve, exchange and utilize germplasm resources and focus on the collection of rare, endangered and unique resources and featured local varieties.

Against such background, the Fourth Amendment further stipulates the approval procedures for providing germplasm resources to foreign countries or conducting cooperative research and utilization of germplasm resources with foreign institutions or individuals.

Conclusion
The Fourth Amendment is aiming to significantly enhance the PVR protection and enforcement regime in China. With effective implementation of the amended Seed Law in the future, we can foresee a more promising outlook of introducing high-quality foreign varieties into China and more healthy and sustainable development of seed industry in China which will be welcomed by and eventually beneficial to the international agricultural society. 

Key contacts

Li Jiao

Partner | Lawyer
Send me an e-mail
+86 21 60836813

Zining Zhou

Adviser
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+31 20 237 1109

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