In the process of safeguarding the rights of asexual propagation materials, what is the biggest concern? What confusion does the court, variety rights holders and breeders, and authorized variety approval authorities have about the source of control samples? Where should the lega

The legality of the source of the control sample is the key to safeguarding the rights of asexual propagation materials

Although Article 6 of the "Several Provisions of the Supreme People's Court on the Specific Application of Legal Issues in the Trial of Cases Concerning Infringement of New Plant Variety Rights Disputes (2)" has been solved to a certain extent. It solves the problem of rights protection for asexual propagation materials, but it does not meet the practical needs.

First of all, , there is still controversy in practice whether this article applies to cases of disputes over royalties during the temporary protection period of new plant varieties; Secondly, not all infringers must use the same authorized varieties when producing and selling infringing propagation materials. The name. As cited in this article, the following cases [(2018) Sichuan 01 Zhi Min Chu No. 2512 Civil Judgment ]

1, case review

"Zhonggan Institute No. 5" was established by Citrus Research Institute of the Chinese Academy of Agricultural Sciences (hereinafter referred to as Zhonggan Institute) A new early-maturing citrus variety bred by the Orange Institute. On March 1, 2017, the former Ministry of Agriculture granted the new plant variety right of "Zhonggan Institute No. 5" to the China Institute of Gantry. The variety right number is: CNA20130475.7. On September 6, 2017, the China Institute of Gantry authorized Sichuan Taoran Agricultural Science and Technology Development Co., Ltd. (hereinafter referred to as Taoran Company) breeds and promotes the authorized varieties and infringes the intellectual property rights of the authorized varieties, and pursues the third party's infringement liability through various legal methods.

On July 23, 2018, Taoran Company filed a civil lawsuit with the court on the grounds that Ye Moumou was producing and selling authorized varieties without authorization. After accepting the case, the court initiated the appraisal process upon Taoran Company's application. Based on Taoran Company's claims, court staff went to the China Citrus Institute and the National Fruit Tree Germplasm Chongqing Citrus Garden twice to collect samples. The first extraction location was the location of the variety rights holder and there was only a paper sign with "Zhonggan Institute No. 5" written on the site. The second extraction site was at the National Fruit Tree Germplasm Chongqing Citrus Nursery of the Citrus Research Institute of the Chinese Academy of Agricultural Sciences. No listing. During the two above-mentioned sample extraction processes, was unable to obtain corresponding file management information to prove that the mother tree claimed by Taoran Company was the mother tree of the authorized variety. Ye Moumou did not accept the leaves extracted from the two aforementioned sample extractions as samples for identification.

The court held that the evidence submitted by Taoran Company could not prove that the sample it claimed was an authorized variety. Judging from the storage site of the sample it claimed, its management status also could not confirm that the sample it claimed was an authorized variety. In addition, the aforementioned sample storage locations proposed by Taoran Company are all the locations of the authorized product rights holders or places related to the rights holders. The court also held that because the sample submitted by Taoran Company could not be determined to be an authorized variety, this case did not meet the conditions for identification, and Taoran Company should bear the corresponding legal consequences of being unable to provide evidence. In the end, the court dismissed Taoran’s lawsuit.

2. Confusion among the parties about the source of the comparative samples

Different subjects in this case are confused:

(1) Confusion by the court. The court held that the control sample should come from the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs because it is the authorized approval authority.If the variety right holder provides a control sample under the witness of a notary office, the court will also face questioning: the extraction process of the authorized variety sample comes from the identification of a person outside the case (the breeder of the variety involved in the case) at the variety right holder's cultivation research base and the variety right holder's identification. Self-identification, but there is no other evidence to support whether the identified objects are seedlings of authorized varieties, so the plaintiff should bear the adverse consequences.

(2) Confusion among variety rights holders and breeders. The variety involved in the case has been granted variety rights by the former Ministry of Agriculture, and millions of plants have been sold. "Zhonggansuo No. 5" is our new variety. This is a fact that all fruit farmers know, and the trees are grown in nurseries. The court If you ask an expert to come over and check it out, how else can you prove it? It is impossible for the Ministry of Agriculture and Rural Affairs to engrave the words "authorized variety" on the tree!

(3) Confusion among authorized product approval authorities. The author consulted the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs on the preservation of the propagation materials of the varieties involved in the case. The reply said that the variety involved in the case is asexual propagation material, and the protection office does not preserve the propagation material of the authorized variety. The court can organize experts to go to the base of the variety right holder for verification.

(4) Confusion among interested parties. stakeholders were also distressed after receiving the judgment. Why did the court question the Ministry of Agriculture and Rural Affairs’ grant of new plant variety rights to the variety rights holder, even if the variety rights holder provided a control sample? If the variety rights holder does not provide control samples, who will provide them? Can the courts provide it? What is the point of spending hundreds of thousands or millions of dollars on the variety rights holder to purchase the breeding and sales rights of the variety involved in the case but unable to prevent third parties from infringing? Who would dare to buy and promote new varieties of fruit trees after the court ruled like this?

The pain of defending the rights of asexual propagation materials - Where should the control samples of asexual propagation materials come from?

1. Preservation of control samples

"Implementation Rules of the Regulations on the Protection of New Plant Varieties of the People's Republic of China (Agricultural Part)" Article 30, Paragraph 2: The applicant shall submit the propagation document within 3 months from the date of receipt of the notice from the Variety Protection Office Material. If the propagation materials are seeds or fruits, they should be sent to the Plant New Variety Preservation Center (hereinafter referred to as the Preservation Center) of the Variety Protection Office; if vegetative propagation materials such as seedlings, bulbs, tubers, and roots are submitted, they should be sent to the Variety Protection Office. Office designated testing facility. Article 2 of the "Regulations on the Administration of Plant Variety Specificity, Consistency and Stability Testing Institutions of the Ministry of Agriculture": The testing institutions referred to in these regulations refer to the testing institutions approved or authorized by the Ministry of Agriculture to engage in the specificity, consistency and stability of agricultural plant varieties (hereinafter referred to as Designated institutions for testing, including the Plant New Variety Testing Center of the Ministry of Agriculture (hereinafter referred to as the Testing Center) affiliated with the Science and Technology Development Center of the Ministry of Agriculture and related units, testing sub-centers, and other testing units authorized by the Ministry of Agriculture . Accordingly, when a variety right holder applies for a new plant variety right from the Ministry of Agriculture and Rural Affairs, he or she should submit backup propagation materials to the preservation center or a testing institution designated by the Variety Protection Office to fix the specific characteristics of the new plant variety for which they are applying for protection. . If a dispute arises later, the rights holder can retrieve the backup propagation materials submitted when applying for variety rights from the preservation center.

But this is not the case in practice: Neither the " Seed Law " nor the " New Plant Variety Protection Regulations " clearly stipulate that variety rights holders must submit asexual propagation materials to the approval authority. According to the "New Plant Variety Protection Regulations" It can be seen from the provisions of Paragraph 2 of Article 30 that applicants will only be required to submit propagation materials when necessary for review; the "Regulations on the Management of Plant Variety Specificity, Consistency and Stability Testing Institutions of the Ministry of Agriculture" does not include the preservation of asexual materials. Responsibilities and tasks of propagation materials as testing centers and testing sub-centers and other testing units authorized by the Ministry of Agriculture.

2. DUS test required for authorization of variety rights of asexual propagation materials

According to Article 30, paragraph 1, of the Regulations on the Protection of New Plant Variety, the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs does not have to conduct DUS when granting the applicant new plant variety rights. Testing will only be done by a designated testing agency when it deems it necessary.Taking the application for variety rights protection of fruit trees as an example, according to the different initiators of the DUS test, in practice, the applicant conducts the DUS test independently and the approval authority organizes the DUS test.

(1) The applicant conducts the DUS test independently

This mode is further divided into: the applicant entrusts the relevant testing agency to conduct the DUS test and the applicant conducts the DUS test by himself. Since the DUS test is initiated by the applicant, we collectively refer to it as the applicant's own DUS test. The applicant conducts self-tests and prepares a "Self-Test Report on Agricultural Plant Variety Specificity, Consistency and Stability" based on the test results and submits it to the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs for approval. The Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs will entrust relevant authorities after receiving the report. The testing department (mostly testing centers and testing sub-centers) will conduct on-site inspections at the applicant's test base and form a "DUS On-site Inspection Report on New Agricultural Plant Varieties". If the inspection report states that the proposed variety has specificity, consistency, Stability, if the proposed variety meets the novelty, has appropriate naming and the variety belongs to the genus or species of plants listed in the National Plant Variety Protection List, the applicant will be granted new plant variety rights. Since the authority granting new plant variety rights in my country has not yet established a preservation garden for asexual propagation materials, applicants are not required to submit propagation materials.

(2) The approval authority organizes DUS testing

The approval authority conducts a substantive review based on the application documents and other relevant written materials. If it is deemed necessary to conduct a DUS test after the review, the approval authority will entrust a testing center to conduct the DUS test, and the approval authority will require the application. In accordance with Article 30 of the "Regulations on the Protection of New Plant Varieties" and the "Implementation Rules of the Regulations on the Protection of New Plant Varieties of the People's Republic of China (Agricultural Part)", the person submits the propagation material of the applied variety to its designated department, and the testing center will conduct DUS testing. In this case, the testing center may retain the relevant breeding material.

Based on the above, it can be seen that when re-identification of asexual propagation materials is initiated after being accused of infringement, if the judicial authority believes that the control sample is provided by the variety right holder, the source of the control sample is illegal, or the variety right holder is interested in the case and provides the control sample. The sources are not recognized if they are not objective and neutral enough. Under the current situation, this is undoubtedly a death sentence for the rights protection of some asexual reproduction materials.

Asexual reproduction material Rights protection control sample source Path analysis

In recent years, the author has represented dozens of litigation cases involving asexual reproduction material rights protection tried by more than ten intellectual property courts (tribunals). Based on the experience of handling the case, the author believes that the relevant laws should be revised, Improving relevant systems and establishing relevant nurseries for the preservation of asexual propagation materials by the Ministry of Agriculture and Rural Affairs are indeed good ways to solve the source of control samples of asexual propagation materials in the future. But the top priority is how to solve the problem of sources of control samples for cases that have entered judicial proceedings. The author recommends trying the following paths:

1. The judicial authorities should take initiative and introduce expert assistants to watch the scene.

The judge cannot refuse to make a decision when the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs has not preserved asexual propagation materials, but should not The claims of variety rights holders or interested parties were rejected on the grounds that the source of the control sample was illegal. Since judges are basically court graduates, most judges do not have rich knowledge of the seed industry. Therefore, based on the application of the variety rights holder or interested party, the judges go to the variety rights holder's base or related resource nursery to inspect the site and verify whether the asexual propagation material is When authorizing a variety, unless the judge has the ability to identify the variety through the branches and leaves, he can go to the scene alone. Otherwise, professionals should be invited to go together, otherwise it will inevitably be suspected of "going through the motions."

is designed to resolve disputes over expertise in civil litigation. my country's " Civil Procedure Law " and the "Interpretation of the Supreme People's Court on the Application of the "Civil Procedure Law of the People's Republic of China"" have introduced the expert assistant system. Therefore, when one party applies for re-evaluation, the judge can exercise his subjective initiative and introduce expert assistants to the court.

Taking the above case as an example, the author recommends : The judge invites expert assistants from the provincial and municipal academies of agricultural sciences to watch the scene together, and the expert assistants conduct verification based on the independent test report provided by the variety rights holder and the inspection report issued by the approval authority. After obtaining confirmation from an expert assistant as to whether the plant designated by the variety right holder is an authorized variety, the judge may arrange for personnel to pick leaves or branches from the plant in accordance with the requirements of molecular testing technical regulations, and use the picked leaves or branches as comparison samples.

2. Variety applicants submit the genetic sequence map of the propagating material when applying for variety protection.

The development of science and technology has promoted the widespread application of molecular technology in the field of seed industry, especially in the verification of variety authenticity or identity, and the granting of variety rights to similar varieties. In terms of screening and other aspects, DNA molecular technology plays an irreplaceable role.. The "Announcement on the Approval and Release of the Amendment to the National Standard No. 1 of GB/T3543.5-1995 "Crop Seed Inspection Procedures for Authenticity and Variety Purity Identification" published by the National Standards Committee on May 29, 2015" clearly states: (1) For variety authenticity verification or identification, simple sequence repeats (SSR) and single nucleotide polymorphism (SNP) molecular marker methods are allowed. The test adopts the method of extracting representative test samples and comparing them with standard samples and DNA fingerprint database. (2) Change "Field plot planting is the most reliable and accurate method to identify the authenticity of varieties and determine the purity of varieties" to "Planting in field plots is one of the reliable methods to identify the authenticity of varieties and determine the purity of varieties."

Therefore, When granting the applicant new plant variety rights, the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs requires that in addition to providing necessary information and propagation materials of the new plant variety, it may also require the applicant to provide DNA fingerprints, which will be kept by the testing center. For authorized varieties, the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs can organize relevant experts to submit the "Agricultural Plant Variety Specific Consistency and Stability Self-Test Report" and the "Agricultural Plant Variety DUS On-site Inspection Report" submitted by the applicant at the time of authorization. A second inspection will be conducted. After inspection and confirmation, leaves or branches will be extracted from the plant for DNA fingerprint extraction and handed over to the testing center for safekeeping. If DNA molecular testing is required during the litigation stage, the judicial authorities can obtain comparison samples from the testing center.

3. Strictly implement variety registration requirements and break down barriers between variety registration and variety protection

The "Registration Measures for Non-Major Crops" clarifies the conditions that registered varieties should meet: artificial selection or discovery and improvement; specificity, consistency, and stability property; having a variety name that complies with the " Agricultural Plant Variety Naming Regulations". These are all necessary requirements for breeding material to be granted variety rights. The "Guidelines for Registration of Non-Major Crop Varieties" have clarified that to apply for variety registration, the applicant shall submit an application for variety registration to the provincial agricultural authorities, fill out the "Application Form for Registration of Non-Major Crop Varieties", and submit relevant application documents; the provincial department shall review in writing and comply with If required, the applicant will be notified to submit seedling samples. Taking the citrus cited in the case as an example, the "Registration Guidelines for Non-Major Crop Varieties" clearly states that seedlings should be submitted to the National Citrus Resource Garden of the Citrus Research Institute of the Chinese Academy of Agricultural Sciences (Postcode: 400712, Address: Xiema Town, Beibei District, Chongqing, Tel. 023-68349195, email: [email protected]). After receiving the sample, the National Citrus Resource Garden shall determine whether the sample meets the requirements within 20 working days and provide the applicant with a receipt form .

Therefore, if the asexual propagation material involved in the case has been included in the registration catalog of non-main crops, once the litigation involves the issue of control samples, the judicial authority can retrieve the propagation material from the registered variety preservation department as a comparison sample. If the judicial authority believes that there are certain obstacles in the form of directly obtaining propagation materials from the registered variety preservation department as comparison samples, it can report to the Supreme People's Court. The Supreme People's Court will discuss with the Ministry of Agriculture and Rural Affairs to clarify that under certain circumstances, The judicial authorities below may obtain propagation materials from the preservation department of registered varieties as comparison samples.

4. Make full use of the national germplasm resource nursery to fill the shortcomings in the preservation of asexual propagation materials.

In April 2022, the "National Crop Germplasm Resource Bank (Nurse) Management Specifications" issued by the General Office of the Ministry of Agriculture and Rural Affairs clearly relied on scientific research institutes and colleges and universities. Legal entities such as schools, enterprises and other social organizations establish national-level germplasm resource banks (nurseries). The national-level germplasm resource banks (nurseries) are responsible for the collection, sorting, identification, registration, preservation, exchange and utilization of crop germplasm resources. .

At present, when the Ministry of Agriculture and Rural Affairs does not have the ability to establish a vegetative propagation material preservation nursery, it can make full use of the national germplasm resource bank (nursery), that is, the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs can require the applicant when granting the applicant new plant variety rights. Submit asexual propagation materials to the designated national germplasm resource bank (nursery), which will preserve the asexual propagation materials. In the event of litigation, it is necessary to retrieve the propagation materials of authorized varieties as comparison samples. , the judicial authority can retrieve it from the resource library (nursery).

The source paths of the four asexual propagation material rights protection control samples mentioned above are all expedient. In the future, the Ministry of Agriculture and Rural Affairs will need to establish a complete propagation material preservation system and establish corresponding nurseries.

Our country is based on agriculture, and agriculture is based on planting. The protection of new plant varieties is not only about the people's "rice bags", "vegetable baskets" and "fruit plates", but also about the scientific and technological progress and sustainable development of the national seed industry. The revision of the "Seed Law" in 2021 marks that the protection of new plant varieties in my country has entered a new era of the rule of law. The effective preservation of asexual propagation materials will become an important symbol of the improvement of the system for the protection of new plant varieties in my country.

Source丨Partner lawyer of Beijing Lanshang Law Firm Feng Wanwei

Editor丨Nong Caijun

Contact Nong Caijun丨18565265490

(2) Confusion among variety rights holders and breeders. The variety involved in the case has been granted variety rights by the former Ministry of Agriculture, and millions of plants have been sold. "Zhonggansuo No. 5" is our new variety. This is a fact that all fruit farmers know, and the trees are grown in nurseries. The court If you ask an expert to come over and check it out, how else can you prove it? It is impossible for the Ministry of Agriculture and Rural Affairs to engrave the words "authorized variety" on the tree!

(3) Confusion among authorized product approval authorities. The author consulted the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs on the preservation of the propagation materials of the varieties involved in the case. The reply said that the variety involved in the case is asexual propagation material, and the protection office does not preserve the propagation material of the authorized variety. The court can organize experts to go to the base of the variety right holder for verification.

(4) Confusion among interested parties. stakeholders were also distressed after receiving the judgment. Why did the court question the Ministry of Agriculture and Rural Affairs’ grant of new plant variety rights to the variety rights holder, even if the variety rights holder provided a control sample? If the variety rights holder does not provide control samples, who will provide them? Can the courts provide it? What is the point of spending hundreds of thousands or millions of dollars on the variety rights holder to purchase the breeding and sales rights of the variety involved in the case but unable to prevent third parties from infringing? Who would dare to buy and promote new varieties of fruit trees after the court ruled like this?

The pain of defending the rights of asexual propagation materials - Where should the control samples of asexual propagation materials come from?

1. Preservation of control samples

"Implementation Rules of the Regulations on the Protection of New Plant Varieties of the People's Republic of China (Agricultural Part)" Article 30, Paragraph 2: The applicant shall submit the propagation document within 3 months from the date of receipt of the notice from the Variety Protection Office Material. If the propagation materials are seeds or fruits, they should be sent to the Plant New Variety Preservation Center (hereinafter referred to as the Preservation Center) of the Variety Protection Office; if vegetative propagation materials such as seedlings, bulbs, tubers, and roots are submitted, they should be sent to the Variety Protection Office. Office designated testing facility. Article 2 of the "Regulations on the Administration of Plant Variety Specificity, Consistency and Stability Testing Institutions of the Ministry of Agriculture": The testing institutions referred to in these regulations refer to the testing institutions approved or authorized by the Ministry of Agriculture to engage in the specificity, consistency and stability of agricultural plant varieties (hereinafter referred to as Designated institutions for testing, including the Plant New Variety Testing Center of the Ministry of Agriculture (hereinafter referred to as the Testing Center) affiliated with the Science and Technology Development Center of the Ministry of Agriculture and related units, testing sub-centers, and other testing units authorized by the Ministry of Agriculture . Accordingly, when a variety right holder applies for a new plant variety right from the Ministry of Agriculture and Rural Affairs, he or she should submit backup propagation materials to the preservation center or a testing institution designated by the Variety Protection Office to fix the specific characteristics of the new plant variety for which they are applying for protection. . If a dispute arises later, the rights holder can retrieve the backup propagation materials submitted when applying for variety rights from the preservation center.

But this is not the case in practice: Neither the " Seed Law " nor the " New Plant Variety Protection Regulations " clearly stipulate that variety rights holders must submit asexual propagation materials to the approval authority. According to the "New Plant Variety Protection Regulations" It can be seen from the provisions of Paragraph 2 of Article 30 that applicants will only be required to submit propagation materials when necessary for review; the "Regulations on the Management of Plant Variety Specificity, Consistency and Stability Testing Institutions of the Ministry of Agriculture" does not include the preservation of asexual materials. Responsibilities and tasks of propagation materials as testing centers and testing sub-centers and other testing units authorized by the Ministry of Agriculture.

2. DUS test required for authorization of variety rights of asexual propagation materials

According to Article 30, paragraph 1, of the Regulations on the Protection of New Plant Variety, the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs does not have to conduct DUS when granting the applicant new plant variety rights. Testing will only be done by a designated testing agency when it deems it necessary.Taking the application for variety rights protection of fruit trees as an example, according to the different initiators of the DUS test, in practice, the applicant conducts the DUS test independently and the approval authority organizes the DUS test.

(1) The applicant conducts the DUS test independently

This mode is further divided into: the applicant entrusts the relevant testing agency to conduct the DUS test and the applicant conducts the DUS test by himself. Since the DUS test is initiated by the applicant, we collectively refer to it as the applicant's own DUS test. The applicant conducts self-tests and prepares a "Self-Test Report on Agricultural Plant Variety Specificity, Consistency and Stability" based on the test results and submits it to the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs for approval. The Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs will entrust relevant authorities after receiving the report. The testing department (mostly testing centers and testing sub-centers) will conduct on-site inspections at the applicant's test base and form a "DUS On-site Inspection Report on New Agricultural Plant Varieties". If the inspection report states that the proposed variety has specificity, consistency, Stability, if the proposed variety meets the novelty, has appropriate naming and the variety belongs to the genus or species of plants listed in the National Plant Variety Protection List, the applicant will be granted new plant variety rights. Since the authority granting new plant variety rights in my country has not yet established a preservation garden for asexual propagation materials, applicants are not required to submit propagation materials.

(2) The approval authority organizes DUS testing

The approval authority conducts a substantive review based on the application documents and other relevant written materials. If it is deemed necessary to conduct a DUS test after the review, the approval authority will entrust a testing center to conduct the DUS test, and the approval authority will require the application. In accordance with Article 30 of the "Regulations on the Protection of New Plant Varieties" and the "Implementation Rules of the Regulations on the Protection of New Plant Varieties of the People's Republic of China (Agricultural Part)", the person submits the propagation material of the applied variety to its designated department, and the testing center will conduct DUS testing. In this case, the testing center may retain the relevant breeding material.

Based on the above, it can be seen that when re-identification of asexual propagation materials is initiated after being accused of infringement, if the judicial authority believes that the control sample is provided by the variety right holder, the source of the control sample is illegal, or the variety right holder is interested in the case and provides the control sample. The sources are not recognized if they are not objective and neutral enough. Under the current situation, this is undoubtedly a death sentence for the rights protection of some asexual reproduction materials.

Asexual reproduction material Rights protection control sample source Path analysis

In recent years, the author has represented dozens of litigation cases involving asexual reproduction material rights protection tried by more than ten intellectual property courts (tribunals). Based on the experience of handling the case, the author believes that the relevant laws should be revised, Improving relevant systems and establishing relevant nurseries for the preservation of asexual propagation materials by the Ministry of Agriculture and Rural Affairs are indeed good ways to solve the source of control samples of asexual propagation materials in the future. But the top priority is how to solve the problem of sources of control samples for cases that have entered judicial proceedings. The author recommends trying the following paths:

1. The judicial authorities should take initiative and introduce expert assistants to watch the scene.

The judge cannot refuse to make a decision when the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs has not preserved asexual propagation materials, but should not The claims of variety rights holders or interested parties were rejected on the grounds that the source of the control sample was illegal. Since judges are basically court graduates, most judges do not have rich knowledge of the seed industry. Therefore, based on the application of the variety rights holder or interested party, the judges go to the variety rights holder's base or related resource nursery to inspect the site and verify whether the asexual propagation material is When authorizing a variety, unless the judge has the ability to identify the variety through the branches and leaves, he can go to the scene alone. Otherwise, professionals should be invited to go together, otherwise it will inevitably be suspected of "going through the motions."

is designed to resolve disputes over expertise in civil litigation. my country's " Civil Procedure Law " and the "Interpretation of the Supreme People's Court on the Application of the "Civil Procedure Law of the People's Republic of China"" have introduced the expert assistant system. Therefore, when one party applies for re-evaluation, the judge can exercise his subjective initiative and introduce expert assistants to the court.

Taking the above case as an example, the author recommends : The judge invites expert assistants from the provincial and municipal academies of agricultural sciences to watch the scene together, and the expert assistants conduct verification based on the independent test report provided by the variety rights holder and the inspection report issued by the approval authority. After obtaining confirmation from an expert assistant as to whether the plant designated by the variety right holder is an authorized variety, the judge may arrange for personnel to pick leaves or branches from the plant in accordance with the requirements of molecular testing technical regulations, and use the picked leaves or branches as comparison samples.

2. Variety applicants submit the genetic sequence map of the propagating material when applying for variety protection.

The development of science and technology has promoted the widespread application of molecular technology in the field of seed industry, especially in the verification of variety authenticity or identity, and the granting of variety rights to similar varieties. In terms of screening and other aspects, DNA molecular technology plays an irreplaceable role.. The "Announcement on the Approval and Release of the Amendment to the National Standard No. 1 of GB/T3543.5-1995 "Crop Seed Inspection Procedures for Authenticity and Variety Purity Identification" published by the National Standards Committee on May 29, 2015" clearly states: (1) For variety authenticity verification or identification, simple sequence repeats (SSR) and single nucleotide polymorphism (SNP) molecular marker methods are allowed. The test adopts the method of extracting representative test samples and comparing them with standard samples and DNA fingerprint database. (2) Change "Field plot planting is the most reliable and accurate method to identify the authenticity of varieties and determine the purity of varieties" to "Planting in field plots is one of the reliable methods to identify the authenticity of varieties and determine the purity of varieties."

Therefore, When granting the applicant new plant variety rights, the Plant Variety Protection Office of the Ministry of Agriculture and Rural Affairs requires that in addition to providing necessary information and propagation materials of the new plant variety, it may also require the applicant to provide DNA fingerprints, which will be kept by the testing center. For authorized varieties, the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs can organize relevant experts to submit the "Agricultural Plant Variety Specific Consistency and Stability Self-Test Report" and the "Agricultural Plant Variety DUS On-site Inspection Report" submitted by the applicant at the time of authorization. A second inspection will be conducted. After inspection and confirmation, leaves or branches will be extracted from the plant for DNA fingerprint extraction and handed over to the testing center for safekeeping. If DNA molecular testing is required during the litigation stage, the judicial authorities can obtain comparison samples from the testing center.

3. Strictly implement variety registration requirements and break down barriers between variety registration and variety protection

The "Registration Measures for Non-Major Crops" clarifies the conditions that registered varieties should meet: artificial selection or discovery and improvement; specificity, consistency, and stability property; having a variety name that complies with the " Agricultural Plant Variety Naming Regulations". These are all necessary requirements for breeding material to be granted variety rights. The "Guidelines for Registration of Non-Major Crop Varieties" have clarified that to apply for variety registration, the applicant shall submit an application for variety registration to the provincial agricultural authorities, fill out the "Application Form for Registration of Non-Major Crop Varieties", and submit relevant application documents; the provincial department shall review in writing and comply with If required, the applicant will be notified to submit seedling samples. Taking the citrus cited in the case as an example, the "Registration Guidelines for Non-Major Crop Varieties" clearly states that seedlings should be submitted to the National Citrus Resource Garden of the Citrus Research Institute of the Chinese Academy of Agricultural Sciences (Postcode: 400712, Address: Xiema Town, Beibei District, Chongqing, Tel. 023-68349195, email: [email protected]). After receiving the sample, the National Citrus Resource Garden shall determine whether the sample meets the requirements within 20 working days and provide the applicant with a receipt form .

Therefore, if the asexual propagation material involved in the case has been included in the registration catalog of non-main crops, once the litigation involves the issue of control samples, the judicial authority can retrieve the propagation material from the registered variety preservation department as a comparison sample. If the judicial authority believes that there are certain obstacles in the form of directly obtaining propagation materials from the registered variety preservation department as comparison samples, it can report to the Supreme People's Court. The Supreme People's Court will discuss with the Ministry of Agriculture and Rural Affairs to clarify that under certain circumstances, The judicial authorities below may obtain propagation materials from the preservation department of registered varieties as comparison samples.

4. Make full use of the national germplasm resource nursery to fill the shortcomings in the preservation of asexual propagation materials.

In April 2022, the "National Crop Germplasm Resource Bank (Nurse) Management Specifications" issued by the General Office of the Ministry of Agriculture and Rural Affairs clearly relied on scientific research institutes and colleges and universities. Legal entities such as schools, enterprises and other social organizations establish national-level germplasm resource banks (nurseries). The national-level germplasm resource banks (nurseries) are responsible for the collection, sorting, identification, registration, preservation, exchange and utilization of crop germplasm resources. .

At present, when the Ministry of Agriculture and Rural Affairs does not have the ability to establish a vegetative propagation material preservation nursery, it can make full use of the national germplasm resource bank (nursery), that is, the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs can require the applicant when granting the applicant new plant variety rights. Submit asexual propagation materials to the designated national germplasm resource bank (nursery), which will preserve the asexual propagation materials. In the event of litigation, it is necessary to retrieve the propagation materials of authorized varieties as comparison samples. , the judicial authority can retrieve it from the resource library (nursery).

The source paths of the four asexual propagation material rights protection control samples mentioned above are all expedient. In the future, the Ministry of Agriculture and Rural Affairs will need to establish a complete propagation material preservation system and establish corresponding nurseries.

Our country is based on agriculture, and agriculture is based on planting. The protection of new plant varieties is not only about the people's "rice bags", "vegetable baskets" and "fruit plates", but also about the scientific and technological progress and sustainable development of the national seed industry. The revision of the "Seed Law" in 2021 marks that the protection of new plant varieties in my country has entered a new era of the rule of law. The effective preservation of asexual propagation materials will become an important symbol of the improvement of the system for the protection of new plant varieties in my country.

Source丨Partner lawyer of Beijing Lanshang Law Firm Feng Wanwei

Editor丨Nong Caijun

Contact Nong Caijun丨18565265490