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China Stakes Out Its Place in Plant Variety Protection: An Update with Experts on PVP and Agricultural IP Developments in China
July 1, 2022
Article 14 Any plant variety in respect of which variety rights are granted shall have the characteristic of novelty. Novelty means that the propagating material of the new plant variety in respect of which variety rights are applied for has not been sold prior to the filing date of the application, or has not been for sale, with the consent of the breeder, for more than one year within the territory of China; the propagating material of vines, forest trees, fruit trees and ornamental plants must not have been for sale for more than six years, or the propagating material of other plant varieties for more than four years, in a foreign territory. As always please consult counsel for specific legal advice.
Since China established its legal regime for the protection of new varieties of plants in 1997, it has emerged as the country with the largest number of plant variety applications in the world, as well as the most litigious.
China’s current plant variety regime focuses on policy and legislative initiatives, including work on a new Seed Law by the National People’s Congress. Its plant variety protection enforcement efforts also reflect many of the reforms already undertaken in other areas of IP law, including: providing for punitive damages, burden of proof reversals and exceptions and limitations to infringement. Yet, China has yet to accede to UPOV ’91, the latest version of the WIPO treaty to protect plant varieties.
To what extent does China’s plant variety IP regime address China’s twin goals of becoming an agricultural innovator and meeting the food security needs of its vast population?
We will explore the public policy implications of China’s efforts to become a major force in new plant varieties, the technical aspects of China’s emerging plant variety regime, and how these changes fit into China’s overall IP practice.
Elaine Wu, USPTO
Amy Martin, Driscoll’s
Dan Fang, American Seed Trade Association
Xu Yi, Lusheng Law Firm
Zhou Yanhao, Sinochem/Syngenta
Alanna Rennie, Baker McKenzie
Mark A Cohen, BCLT/Berkeley Law
Michael Ward, Morrison Foerster