Weekend Report: The thorny issues of plant variety rights behind the huge sales of ‘Sunshine Rose’ grapes

Text | Caixin Weekly Wang Kerou Huang Yuxin, October 22, 2022 08:19

‘Sunshine Rose’ and other high-quality grapes have a huge market. But behind the sales are the realities of new plant variety infringement which include difficulties in tracing back to the infringement , collecting evidence, undertaking investigations and the light penalties.
Photo: Wang Kerou
At the beginning of October 2022, Suizhong County, Huludao City, Liaoning Province nursery operator Zhang Zhonglei contracted 30 mu [ 2ha] of land in the local area. The grapes were all grafted with the Sunshine Rose variety with green plants growing out as far as the eye can see.

In late September 2022, Hunan grape wholesaler Yan Qinbing was on the road. He had just finished a trip to Jiangsu to buy grapes. His next stop was Inner Mongolia, more than 1,000 kilometers away.

Yan Qinbing uses video clips to share his work on social media, his IP address switching back and forth between Hunan, Hubei, and Jiangsu. In nearly all his clips you can see a big bunch of ripe green grapes hanging heavy on the vine. This yellow-green grape was originally called “Shine Muscat”, introduced from Japan. The fruit is oval and full, compact, sweet on the palate, juicy with a floral fragrance. Perhaps the sweet flavor is reminiscent of a rose under the sun. After arriving in China the grape became known as the “Sunshine Rose “.

It’s no exaggeration to say that in the last few years the Sunshine Rose grape has become the most popular fruit variety in China. In mid-to-late September, in Beijing’s largest fruit wholesale market, anyone selling grapes must have Sunshine Rose grapes in a prominent position. The same is true for e-commerce sellers. If you open up the fruit section of any of the online shopping apps, you will see a frenzy of activity and ‘flash sale’ offers for Sunshine Rose grapes.

According to the “2022 China Sunshine Rose grapes Grape Industry Data Analysis Report” released by market researcher Yunguo Brain, in 2016 the nation-wide planted area of Sunshine Rose grapes was only 101,100 mu [6,740 hectares], but by 2021 this had increased to about 312,100 mu (20,806 hectares). The actual growing area may be far in excess of this. In interviews with Caixin several people in the industry said that a conservative estimate of China’s total planted area of Sunshine Rose grapes is more than 1 million mu [66,666 hectares].

Some of the earliest plantings in China of Sunshine Rose grapes were in Jianshui County, Honghe, Yunnan. The plantings have now expanded to many places throughout the country, with some areas having two harvests a year, enabling year-round supply. Yan Qinbing said that in April/May, the grapes start coming on to the market in Yunnan, then in June to July, moving from south to northward from Guangdong and Guangxi, then from August most are from provinces such as Hunan, Hubei, Anhui and Jiangxi, while from September to October, the main provinces are Shaanxi and Shandong with the northernmost being Inner Mongolia.

It is little known that the Sunshine Rose grape which is a top-seller in China is one of best varieties to have been bred in Japan in the past 20 years. There are confused accounts of just when and how the variety was introduced into China. This also highlights the challenges of the protecting plant intellectual property rights – it is difficult to trace the infringement, obtain evidence, carry out investigations and the penalties are light. Compared with other intellectual property rights such as patents, trademarks and copyright, the road to defending new plant varieties is more difficult. The infringement of variety rights related to asexual reproduction has become the “epicentre” for PVR infringement in recent years.

The new “Seed Law”, which came into effect in March this year, expanded the scope of the protection and the protected elements of new plant varieties, extending the scope of protection from the breeding materials of authorized varieties to harvested materials. This provides more opportunities for the right holders to exercise their rights. The plant industry is looking forward to the implementation of the law.

Top selling foreign goods

Huludao City, Liaoning Province, is the largest grape seedling growing region in China. Every year, tens of millions of grape seedlings flow from here to all around the country. This year Huludao was bustling as usual, with surging demand for Sunshine Rose grapes, reversing the decline in the local seedlings business of the last few years. Late October is the season for harvesting the local seedlings. This year in early October the first cold front of the season hit Huludao earlier than in previous years. The frost caused the leaves to turn yellow and drop prematurely from many of the grafted seedlings planted in the open. Fortunately, the seedlings in the greenhouses were still green and lush and growing vigorously.

Suizhong County is the main seedling nursery growing area in Huludao City, accounting for more than 70% of total supply. Zhang Zhonglei, the manager of a large seedling growing business in Suizhong County, told Caixin that the total number of grape seedlings from Huludao is likely to hit 40 million this year, of which at least 30 million are Sunshine Rose grapes. This includes both grafted and transplanted seedlings.

In the last few years the volume of Sunshine Rose Grape seedlings had shot up while speculation had led to soaring prices. According to industry sources, the price per seedling had gone up to about 20 yuan, with some even selling for 30 yuan. This is more than three times that of other varieties of grape seedlings. Zhang Zhonglei said that once this year’s crop of seedlings had matured sellers will be beating a path to his door to put in their orders. “I don’t have any worries about selling them”

The reason the grapes are a top seller is their superior quality. Wang Haibo, deputy director of the Research Institute of Pomology of the Chinese Academy of Agricultural Sciences, has studied grapes for many years. He describes the Sunshine Rose grape as being the ultimate among the currently available green varieties. ” It’s good because it meets the needs of both consumers and businesses,” he said. “Consumers like the taste, and merchants find it easy to sell.”

For consumers, the three main areas where the taste performs well are with fragrance, crispness and sweetness. The fragrance penetrates the skin, the fruit is large and full while the taste is crisp and sweet. During the planting process, after de-seeding treatment, the variety meets almost all of consumers current expectations for grapes. For sellers, the reason for Sunshine Rose grapes being easy to sell is that it is extremely resilient, easy to store and transport and can be kept in cold storage for up to three months. This means that vendors can be guaranteed to have the grapes available to sell for more than half of the year.

Tasty and easy to sell has led to rapid expansion in the Sunshine Rose grape planted areas in just a few short years. The response to the strong retail market has led to rapidly expanded production in midstream plantings while this response has been quickly transmitted to the upstream seedling market.

It’s not well known that that the Sunshine Rose grape is a diploid table grape variety bred by the Japanese National Agricultural Food Industry Technology Comprehensive Research Institute Fruit Tree Research Institute using the American grape “Anyijin 21” and the European grape “White South” in 1988. From 1999 to 2002, the grape variety was named “Grape Qiujin 23”, and the strain adaptability test was conducted nationwide. It was registered as “Nonglin 21” in Japan on September 5, 2003. On March 9, 2006, this variety was registered as No. 13891 grape in Japan, valid for 30 years. In 2009, it was officially popularized in Japan. The highest quality Sunshine Rose grape is said to be produced in Okayama Prefecture. The trademark “Qingwang” was also registered locally. For a while the “Qingwang” grape was synonymous with the Sunshine Rose grape.

To date Japan has not authorized the Sunshine Rose grape variety for cultivation outside Japan. But in less than 20 years the variety has spread throughout China, South Korea and other countries. In 2020, according to statistics from the Japan Agriculture, Forestry, Fisheries and Food Industry Technology Revitalization Association, Japan’s Sunshine Rose grape growing area was 1,200 hectares, South Korea’s 1,800 hectares, and China 53,000 hectares.

The historical records of when and how the Sunshine Rose grape was introduced to China are unclear. Some say that the seedlings were introduced to China in 2009 while others believe that it first introduced into the Shandong Yishui area in 2012. What’s certain is that industry insiders said that none of the Sunshine Rose grapes seedlings circulating in China’s domestic market had been introduced through official channels and all had come in through various private channels.

Wang Shiping, a professor of horticulture at Shanghai Jiaotong University, was hired as a visiting professor at Tottori University in Japan from June 2008 to April 2009. He worked in the school’s arid land center for one year. From his recollection the Sunshine Rose grape was not widely promoted in Japan at that time, and was basically invisible in the market. He saw this variety in the local pilot area and planned to promote it to China. Wang said that in 2009, Shanghai introduced several foreign agricultural products. Working with Japan’s Uenohara Institute a total of 38 varieties were brought to China. Sunshine Rose grapes could not be included on the list because they were protected varieties. However, as the Sunshine Rose grape was a new variety cultivated by Japan’s national agency, fruit growers could buy seedlings directly from websites which allowed private companies to import Sunshine Rose grape seedlings through private transactions.

This doesn’t only apply to Sunshine Rose grapes. Mainstream grape varieties in the Chinese market have been iterated several times, and the most popular of them were foreign varieties. Wang Shiping said with a smile that “it changes every ten years.” It is not clear when most of these foreign varieties entered China.

In the 1980s, “Jufeng” grapes cultivated by Japan entered the Chinese market. That time was the honeymoon period of Sino-Japanese relations and in 1983, in order to commemorate the first anniversary of the establishment of diplomatic relations with Fujian Province, Nagasaki Prefecture, Japan, donated 100 Kyoho grape seedlings to Fujian. After this Jufeng Grapes spread throughout China and was the parent of a number of new varieties. To this day, the Jufeng grape family still has the largest share of the Chinese grape market.

After 1990, an American grape variety called “Red Globe” entered China. With its bright colors and seed-free advantages it was really popular for a time. In the new millennium, the Japanese grape variety “Xiahei” was popular with Chinese consumers. Xiahei is a European and American hybrid breed cultivated by the fruit tree test site in Yamanashi Prefecture in Japan in 1968 which was registered in 1997. Although the variety was unexpectedly popular in China, it was not popular in Japan. The specific way that these two foreign grape varieties were introduced into China cannot be found using online search.

After 2010, the Sunshine Rose grape came to the attention of Chinese consumers, slowly increasing in popularity increasing until it became a big hit from 2016. Between 2016 to 2020, the market price of Sunshine Rose grapes went up year on year until it reached a peak from 2019 to 2020 when there were media reports of “the 200 yuan bunch (1 kg-2 kg)”. The variety became known as the “aristocrat ” of grape varieties. Since the pandemic started in 2020, the overall macro environment and the continued expansion in growing areas have led to prices falling back somewhat but the growth in sales has continued unabated.

The difficulty of safeguarding legal rights

The large scale planting of Sunshine Rose grapes growing in China, South Korea and other countries poses a direct threat to Japan’s grape exports. According to the Nikkei Chinese website, statistics from Japan’s Ministry of Agriculture, Forestry and Fisheries show that the volume of grape exports in Japan and South Korea went down in 2019. From January to April 2021, the export value of grapes grown in South Korea was about 800 million yen (US$5.4 million), about 1.5 times higher than the same period in 2020, of which about 90 percent were the Sunshine Rose variety. Japan’s own grape exports during the same period were only 147 million yen.

At the end of May 2022, the Ministry of Agriculture, Forestry and Fisheries of Japan organized a seminar on the management of intellectual property rights of agricultural products. Lawyers and agricultural groups familiar with intellectual property rights in the field of agriculture attended, hoping to create a management group for intellectual property protection in 2023. However, the industry believes that under current law Japan has lost its right to defend the Sunshine Rose grape variety in China.

In 2006, Sunshine Rose grapes was registered as a new variety in Japan, but the plant variety right was not registered internationally and the deadline for registration had passed. According to the requirements of the International Convention on the Protection of New Plant Varieties (the “UPOV Convention”), fruit varieties must be registered overseas within a certain period following the date of registration in their country. The registration period for grapes is 6 years, meaning that the deadline for application of the Sunshine Rose grape PVR expired in 2012. Currently the international new plant variety protection system is applicable through the UPOV Convention 1991 and 1978 versions. China has only joined the 1978 version while in 1998 Japan signed the 1991 version.

In response to the loss of high-quality agricultural products overseas, the Japanese government further revised its Seed Law in 2020 which officially came into effect in April 2021. The updated version stipulates that the owner of a variety has the right to designate which countries the variety may be registered in, and that the country would support the variety owner to apply for PVR registration overseas.

Unlike Japan’s new plant registration period which missed registering the Sunshine Rose variety, the United States has taken strong actions in protecting grape varieties in recent years. American seedless grape varieties have been very popular in China. In recent years, the “Sweet Sapphire” grape has also entered the Chinese market in much the same way as the Sunshine Rose variety. In 2019, the Ministry of Agriculture and Rural Affairs announced that an application for the PVR for this variety had been accepted for preliminary review and authorization in 2022. This meant that the owner of the breeding rights, the American International Fruit Genetics Breeding Co., Ltd. (IFG), had obtained the right to defend and recover its rights according to Chinese law.

In the past two years, IFG has commissioned an international law firm to help the company collect evidence and defend its rights in various ways. IFG told Caixin that they had successfully registered PVR’s in China for their 13 best-selling varieties including Sweet Sapphire. IFG noted that currently none of the company’s grape varieties had been approved for planting in China for commercial supply purposes. The only authorized IFG grape varieties in China could only be obtained through imports. This also meant that all of IFG’s grape varieties circulating in the Chinese seedling market through non-import channels were in violation of IFG’s IP rights. IFG has launched IP rights protection operations in Yunnan, Guangdong, Xinjiang and other places to protect its PVR by issuing legal cease and desist letters and by laying administrative complaints. IFG’s rights protection actions run right throughout the supply chain-from nursery to market growers. IFG said “Protecting intellectual property is critical to IFG’s ability to continue to offer high-quality varieties. Every participant in the supply chain must ensure that they only offer authorized varieties and do not violate new plant varieties.”

When discussing the dilemma of rights protection in China, IFG said that the main challenge is that some infringers do not want to change their behavior even after they have been advised of the infringement. A further challenge is that the implementation mechanism of the new Seed Law is not clear, especially in regard to the “protection of harvested materials / fruits” in Article 28. Under Article 28 the scope and sectors of new plant varieties are expanded, and the scope of protection is extended from the breeding materials of authorized varieties to harvested materials, and the protected sectors are extended from production, reproduction, and sales to production, reproduction, and processing, sales, imports, exports, and storage for the implementation of the above actions. These regulations expand the content of the rights of new plant varieties and provide more opportunities for rights holders to exercise their rights. “But the mechanism for implementing the law is not clear,” IFG said.

A number of Chinese and foreign agricultural companies have commissioned Ma Huiqin, Professor of the Department of Fruit Trees of China Agricultural University, to assist with the identification of variety infringement. Ma said that the identification of PVR infringement mainly compares the genomic information of the products of both parties. If the identification indicates an infringement, the company will first send a lawyer’s letter to the infringer. Ma told Caixin that usually the businesses whose rights have been infringed do not as a matter of course prioritize taking lawsuits, and their core demand is the termination of the infringement. This approach is based on the cost of litigation to companies, but also because agricultural product cultivation and sales are more scattered and it is difficult to collect evidence comprehensively. Ma said “It is difficult for a company to prove how much the other party has planted and how much profit it has made.”

This also reveals the difficulty of enforcing PVR rights – it is difficult to trace the infringement, obtain evidence, carry out the investigation, and the penalties are light.

Li Judan, an associate researcher at the Institute of Law of the Chinese Academy of Social Sciences, said: “Compared with other intellectual property rights such as patents, trademarks, and copyright, PVR infringement is more concealed, with planting being heavily seasonal, with features such as specific timings for evidence collection and problematic. These characteristics mean that PVR rights enforcement is more difficult than for other intellectual property owners.”

Hardest-hit areas

China has had a PVR protection system in place for more than 20 years and PVR is the youngest member of the intellectual property family. According to the “People’s Daily”, in 2021 the number of Chinese PVR filings exceeded 9,700 of which 3,218 had been authorized. Since the implementation of the PVR protection system in 1999 the total number of new Chinese PVR’s has exceeded 50,000 of which nearly 20,000 have been authorized. From 2017 to 2021, the number of PVR applications ranked first in the world for five consecutive years. With the continuous increase in the number of PVR filings and the number of authorizations, the number of PVR’s had increased, as had the types of disputes while the legal issues needing resolution had become increasingly complex.

Li Judan told Caixin that from the perspective of the practice of PVR judicial protection, the current infringement disputes mainly involved sexual reproduction with only a few cases involving asexual reproduction for ornamental plants.

For plants, sexual reproduction is usually using seeds for sowing and breeding, such as rice, wheat and other crops. Asexual reproduction uses plant vegetative organs such as flower buds, young branches, etc. as breeding materials. Examples include grapes, apples, peaches, etc., and most of the upstream sales are sold as seedlings. The advantage of asexual reproduction is that the new individual can maintain the basic parental traits, and the growth cycle is shorter and more resistant, which is more conducive to the rapid expansion of the planting scale of cash crops. Taking the example of Sunshine Rose grapes, the variety can be bred in a shorter period of time because grapes are mainly propagated asexually. Whether directly taking branch cuttings or grafting on the grape budwood onto a specific rootstock, as long as the method is well carried out, the survival rate is extremely high. The grower only needs to take grafts from previous introductions of seedlings to enable large scale reproduction. The method is readily accessible and the dispersion of agricultural production activities make it difficult for PVR holders to trace the source of the theft and impossible to obtain evidence.

Moreover, when new plant varieties (mainly grain crops) with sexual reproduction enter the market, they usually need to pass national or provincial-level approval, and apply for production and operation licenses, and then produce the breeding materials for sale at specific seed production bases. For most protected new asexual plant varieties, there is no management stages such as applying for variety approval and production and operation licenses.

Compared to new plant varieties with sexual reproduction, it is more difficult to protect the rights of protected varieties using asexual breeding. Of the hundreds of PVR infringement lawsuits to date, there have been extremely few cases involving new plant varieties that reproduce asexually.

Similar to grapes, grapefruit also uses the asexual breeding method for large scale reproduction. The “San Hong Pomelo” PVR case was the first guiding case of the Supreme Court on new plant varieties, with Li Judan calling it “the benchmark case for judicial protection of new plant varieties.”

On November 10, 2009, a plant breeder Cai Xinguang applied for a PVR for San Hong Pomelo which was authorized on January 1, 2014 for a protection period of 20 years. But a few years later, Cai Xinguang discovered that San Hong pomelos from other channels had entered the market. Since the infringing growers and growing locations could not be located, Cai chose to sue a supermarket selling San Hong pomelos. He filed a lawsuit with the Guangzhou Intellectual Property Court on March 23, 2018, claiming that Guangzhou Runping Commercial Co., Ltd. (“Runping “) had continuously sold a large volume of San Hong pomelos which had infringed on this PVR. Cai asked the court to order Runping to stop selling the fruits of the San Hong pomelo breeding materials and pay 500,000 yuan in compensation for the company’s economic losses.

The Guangzhou Intellectual Property Court issued a civil judgement on January 3, 2019 rejecting Cai Xinguang’s claim. Cai disagreed with the ruling and appealed to the Supreme Court. The Supreme Court’s judgement of December 10, 2019 rejected the appeal and upheld the original judgement. The Supreme Court held that the main issue of the case which was in contention was whether Runping’s sales of the infringing pomelo fruit constituted a violation of Cai’s PVR for the San Hong pomelo. Among them, the protection scope of the new San Hong pomelo PVR was the focal point, and the focus was on determining whether the fruit of the plant was a “breeding material” of the protected variety.

The Supreme Court held that although Cai Xinguang had submitted breeding material branches obtained by grafting when applying for the new San Hong pomelo PVR, this did not mean that the protection scope of the San Hong pomelo plant PVR was limited to the breeding material obtained by grafting, and that branches obtained in other ways also belonged to the breeding material of this variety. The original trial had determined that the breeding method of the infringing breeding materials should correspond to the materials used in the breeding of the variety and the breeding method.

This determination used the breeding method when applying for the PVR as the basis for the protection of the authorized variety, limiting the scope of protection of PVR and reducing the legitimate rights and interests of new plant varieties. The Supreme Court held that this determination needed correcting.

However, the Supreme Court also held that even specialized scientific research units would have difficulty to breed pomelo seedlings using the seeds of the San Hong Pomelo fruit and that the seeds and their juice cells of the pomelo fruits of the party being sued in this case were not capable of breeding authorized varieties and therefore were not part of the breeding material of the San Hong Pomelo. The alleged infringing pomelo fruit was considered to be a harvested material rather than a breeding material and so did not fall within the scope of PVR protection. Cui Yehan, chief agronomist of the Science and Technology Development Center of the Ministry of Agriculture and Rural Affairs and Vice Chairman of the UPOV Council, believes that the San Hong pomelo case was a case of PVR infringement of an asexual breeding plant variety. The Supreme Court’s Intellectual Property Court’s hearing and judgment of the case, had on the one hand explained from a legal rules perspective the correct distinction between breeding materials and harvesting materials in PVR infringement cases and the specific standards for living plants. The case also clarified the scope of protection of new plant varieties along with certain vague and incorrect interpretations which had existed in practice. The court also clearly identified that breeding materials of authorized varieties without permission (except as otherwise provided by laws and administrative regulations), was production behavior which infringed the PVR. On the other hand, from a case selection perspective this case also highlighted the problems and difficulties which existed in the implementation of protecting the PVR of asexual breeding plants. It is hoped that these issues will attract the attention of all sectors of society.

Cui Yehan’s view is that the PVR owner of the San Hong pomelo variety had sued the supermarket selling San Hong pomelos as they didn’t have any alternative. As mentioned above, due to infringements being concealed and scattered, it was difficult for the infringed party to trace back to the original source of the theft, nor could they determine all participants and profit-making in the process of growing seedling, planting and harvesting, and the sales process between the various parts in the production chain. There was also the challenge of how to determine whether the participant was intentional or unintentional. Even if these problems could be solved, the costs for litigants are unaffordable. The plaintiff in the San Hong Pomelo case had insisted on appealing even though they had lost the case in the court of first instance, but this was less about protecting their legitimate rights and interests and more a matter of making a case for the rights holders of asexual breeding plant varieties. Cui hoped that the legislature, judicial organs and administrative organs would give serious attention to the predicament of PVR protection highlighted by this representative case, and that on the basis of the current laws and regulations that they might explore some measures and practices more conducive to PVR protection.

IFG, another party seeking to assert its rights, also believes that: “Protecting new plant varieties is critical for the entire industry. If the rights of one breeder are not protected, it will harm all other plant varieties. Consider this: why would a grower pay to use a protected variety when an unprotected variety is free’? IFG said that compared to traditional intellectual property rights such as trademarks, China’s awareness of PVR protection needed further strengthening. “A lot of infringers, especially peasants or peasant household, were not aware of the existence of PVRs.” Even when the lawyers taking the PVR cases explain IFG’s rights to the farmers and the farmers’ infringements, they are not willing to change their actions. “This is why IFG must work together with local law enforcement agencies and gain their support. Having punitive measures and other deterrent consequences is crucial for curbing infringement. Infringers will only change their behavior when the relevant applicable law is enforced.”

The revised "Seed Law"

Li Judan said that the protection level of conventional species and asexual breeding plants for agricultural crops is a direct reflection of the protection level of PVR’s in a country. The 1991 text and 1978 text of the UPOV Convention are typical representatives of the new plant variety protection system dominated by different breeding techniques. The UPOV Convention 1978 text represents the new plant breed protection system in the traditional breeding era, which mainly seeks to resolve the issue of innovation protection of plant breeding in a country using the main breeding method. The 1991 UPOV Convention text represents the new plant variety protection system using biotechnology breeding and global trade in agricultural products. It mainly seeks to resolve the issues of new breeding technology after molecular biotechnology was used in plant breeding and how to distribute protection benefits after new breeding technologies are combined with traditional breeding technologies, along with the need to include the global trading chain of agricultural products into the protection of new plant varieties.

In short, the 1991 UPOV Convention text strengthened the protection of breeders’ rights and the determination of liability throughout the entire process. China’s current PVR protection system is based on the UPOV Convention 1978 text. It requires distinguishing between the breeding materials and the harvested materials of the authorized varieties. However, in practice, because the plant’s breeding materials and harvesting materials may both be living bodies, while in theory there may seem to be clear differences between breeding materials and harvested materials, in practice these are very difficult to determine in specific cases. If during the hearing the court determines that plant matter which is actually breeding material should be considered as harvested materials, then this will mean that PVR’s which be protected by the law cannot be recognized by the judicial authorities, and PVR protection will only receive lip service. But if the court identifies the plant materials that are actually harvested materials to be breeding materials, then this is tantamount to the judicial authorities going beyond the authorization of the law and directly expanding the scope of PVR protection by judicial authority.

Cui Yehan said: “Because China’s current laws and regulations are in compliance with the UPOV Convention 1978 text, the scope of PVRs is narrow, and the protection of original innovation from law enforcement and other mechanisms is weak. At the institutional level this cannot guarantee the move from a variety protection country to a strong country. He hoped that the country would give full attention to the legal protection of the outcomes of breeding innovation, and improve and refine the relevant laws and regulations as soon as soon as possible, expand the scope of protection and the implementation of PRVs, and improve the overall protection of new plant varieties, strengthen IP protection, provide effective protection for the legitimate rights and interests of variety rights holders and safeguard the realization of a strong national seed industry.”

In the past two years, there has been rapid development of China’s PVR protection. For example, on July 5, 2021, the Supreme Court promulgated “Several Provisions in the Specific Applicable Law in the Hearing of Disputes on New Variety Rights (II)”, and the newly revised “Seed Law” which formally came into effect on March 1, 2022. These new regulations expanded the scope of protection for breeders. These regulations can prevent infringement of unauthorized seed varieties as well as the sale of harvested materials from unauthorized breeding activities.

On December 24, 2021, the “Seed Law” was approved by the Standing Committee of the National People’s Congress and came into effect on March 1, 2022. This amendment focuses on strengthening the protection of intellectual property rights in the seed industry. There are three main areas in which the intellectual property protection system for the seed industry was strengthened: first, to establish an essentially derived variety (EDV) system; second, to expand the scope and link of protection of new plant rights; and third, to increase the infringement compensation system. The revised “Seed Law” newly added “new plant varieties protection”, and stipulated the legal liabilities for infringing PVR’s in the chapter on legal responsibility, increased the penalties and limits for illegal acts to strengthen the deterrent effect of penalties.

In this context, the new “Seed Law” draws on internationally accepted practices. Firstly, it expands the scope of protection of new plant varieties and sectors. The scope of protection extends from the breeding materials of authorized varieties to harvested materials. The protection sectors have also expanded to include production, reproduction and breeding, pledged sales, sales, imports, exports, storage and other procedures and added essentially derived varieties (EDV), to strengthen protection for original innovation.

Hou Yangkun, an associate professor at the School of Law of Beijing Institute of Technology, who has worked in researching the protection of PVRs for many years. Hou said that according to World Trade Organization (WTO) requirements, all member countries must protect new plant varieties. At present, the legislative model for protecting new plant varieties worldwide is roughly divided into three categories: First, the UPOV Convention established based on the “International Union of New Plant Varieties Protection”, China follows this protection model; second, a model which uses the UPOV convention as a reference point, but also protects the country’s traditional and local varieties; the third is to provide protection with the help of ordinary civil law, economic law and criminal law.

As of 2022, of the 193 regular members of the United Nations, a total of 78 countries had joined the new plant protection alliance and adopted the UPOV Convention model for protection. China joined the alliance in 1999. After the establishment of the UPOV Convention in 1961, it was revised three times in 1972, 1978, and 1991, leading to the formation of three different revised versions. By 2022, 17 of the 78 countries have adopted the 1978 version of the UPOV Convention while the remaining 61 countries have adopted the 1991 version.

The 1991 edition stipulates “essentially derived varieties”, also known as “dependent derived varieties”. Since China joined the 1978 version of the UPOV convention, this concept was not available in the “Regulations on the Protection of New Plant Varieties”. The term was adopted in the “Seed Law” revision of 2021.

To put it simply, “essentially derived species” are like a new work which has been formed by a small amount of re-creation but which retains the basic content of the original work. Currently this type of breeding accounts for the largest volume in China’s new plant variety breeding program. Widely used transgenic breeding technology has also promoted the implementation of such breeding methods. It is evident that this kind of breeding method is essentially not a breakthrough breeding innovation but rather borrows from the excellent characteristics of the original variety. Hou Yangkun said that from the perspective of fairness and equity, and be truly beneficial to the development of the breeding industry in China, some basic principles should be stipulated regarding the obtaining PVR for essentially derived varieties: if the essentially derived variety is cultivated from a variety owned by the rights holder then they should be able to apply directly for a PVR in their own name, and they cannot transfer the PVR separately during the validity period of the original PVR; while for essentially derived varieties grown from other parties’ authorized varieties the PVR cannot be claimed, since the plant’s main high quality traits have also come from the original authorized variety.
Additional Articles
[bdp_post_carousel show_category= "false" show_author="false" bdp_post_slider speed="5000" arrows="false"]