Recently, the Ministry of Agriculture amended and adopted the Implementing Rules for the Regulations of the Protection of New Varieties of Plants (Agriculture Part) (hereafter, the Implementing Rules), stipulating that only one variety right can be granted to one new plant variety and no variety rights should be granted to the new plant varieties that are detrimental to public interests and ecological environment.

 

New agricultural plant varieties include grain, cotton, oil plant, fibrous crop, sugar plant, vegetable (including watermelon and melon), tobacco, mulberry, tea plant, fruit (excluding dried fruit), ornamental (excluding woody plant), grass, green manure, medicinal herb, edible fungus, algae, rubber plant and so on. The Ministry of Agriculture is the examination and approval authority of new agricultural plant varieties and is authorized to grant new variety rights according to the Regulations of the Protection of New Varieties of Plants (hereafter, the Regulations).

 

According to the Implementing Rules, one new plant variety can only be granted with one variety right. In case of two or more persons applying for the variety right of one new plant variety on the same day, they should determine who have the right to apply for the right through consultation. Given no consensus can be reached through consultation, plant variety protection office can ask them to furnish evidences within a fixed time limit, so as to make clear who is the first person to complete the breeding of the new plant variety.

 

The Implementing Rules pointed out that the Ministry of Agriculture may grant variety rights where, within one 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 included in the said list, 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.

 

The Implementing Rules required that 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, shall be avoided in the selection of a denomination for a new variety. For the varieties that have passed examinations, or transgenic plant varieties that have gained the Safety Certificates of Agricultural Transgenic Living Things (Production Application), providing the names of these varieties are in line with the regulations of denomination, the names for variety right application shall be consistent with that of prior variety examinations and that on the safe certificate.

 

Chinese entities and persons that breed new plant variety within Chinese territory shall apply for registration to Ministry of Agriculture before applying for variety rights abroad. 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.

 

The Implementing Rules shall come into effect as of January 1, 2008. The Implementing Rules for the Regulations of the People's Republic of China of the Protection of New Varieties of Plants issued by the Ministry of Agriculture in June 16, 1999 shall be abrogated simultaneously.

 

2007-10-16

2007-10-16