Implementing Rules for the Regulations of the People's Republic of China on the Protection of New Varieties of Plants(Agriculture Part)

Implementing Rules for the Regulations of the People's Republic of China on the Protection of New Varieties of Plants(Agriculture Part)

Order of the Ministry of Agriculture No. 13

June 16, 1999

The Implementing Rules for the Regulations of the People's Republic of China on the Protection of New Varieties of Plants(Agriculture Part) which was adopted at the Sixth Executive Meeting of the Ministry of Agriculture on April 27, 1999 is hereby promulgated.

Minister Chen Yaobang

Implementing Rules for the Regulations of the People's Republic of China on the Protection of New Varieties of Plants(Agriculture Part)

Chapter I General Provisions
　
Article 1 These Rules are formulated in accordance with the Regulations of the People's Republic of China on the Protection of New Varieties of Plants (hereinafter referred to as the Regulations).
　
Article 2 New varieties of agricultural plants shall include those of grains, cotton, oil seeds, hemp, sugar crops, vegetables (including water melon and mask melon), tobacco, mulberries, tea shrubs, fruit trees (except dry fruit), ornamental plants (except woody plants), grass, green manure, herbaceous medicinal materials and tropical crops such as rubber.
The provisions of these Rules shall apply to the protection of new varieties of edible fungi.
　
Article 3 The Ministry of Agriculture shall be the authority for examining and approving rights in new varieties of agricultural plants (hereinafter referred to as variety rights) under Article 3 of the Regulations, and shall grant such rights in accordance with the provisions of the Regulations.
The Office for the Protection of New Varieties of Agricultural Plants under the Ministry of Agriculture (hereinafter referred to as the Office of Agriculture) shall undertake the tasks of receiving and examining applications for variety rights, and shall deal with other related matters.
　
Article 4 No variety rights shall be granted to any new variety of plants that is harmful to the public interest and the ecological environment.

Chapter II Content and Ownership of Variety Rights
　
Article 5 The propagating materials referred to in the Regulations shall mean both the seeds and other parts of the body of a plant, which can propagate plants.
　
Article 6 Entities or persons applying for variety rights are generically designated as applicants for variety rights; and entities or persons granted with variety rights are generically designated as variety rights holders.
　
Article 7 Service breeding accomplished by any person in undertaking tasks for the entity to which he belongs as referred to in Article 7 of the Regulations shall mean the following:
1. breeding accomplished in the course of performing his own duty;
2. breeding accomplished in the execution of any task other than his own duty, but assigned by the said entity;
3. breeding accomplished within three years from his resignation, retirement or transfer, and related to his work in the entity from which he resigns, retires or is transferred, or to the tasks assigned to him by that entity.
The facilities of the entity referred to in Article 7 of the Regulations shall mean the financial resources, instruments and equipment, and testing sites of the entity, as well as the breeding materials and technical information owned or held by the entity, whose disclosure to the public is not yet authorized.
　
Article 8 The person who has accomplished the breeding of new varieties as referred to in Article 8 of the Regulations shall mean any entity or person who has accomplished the breeding of new varieties.
　
Article 9 The person who has accomplished the breeding of new varieties (hereinafter referred to as the breeder) shall mean the person who has made creative contributions to the breeding of new varieties. Those who are responsible only for organizational and managerial work, facilitate access to facilities, or perform other auxiliary functions shall not be considered as breeders.
　
Article 10 Where two or more applicants apply separately for the same variety rights simultaneously, the Office of Agriculture may require the applicants to provide, within a fixed time limit, evidence to prove that he is the person who has first accomplished the breeding of the new variety concerned. Where no evidence is provided within the said time limit or where the provided evidence is not sufficient to serve as the basis of a judgment, the applicants shall decide upon ownership of the right to file an application by consultation among themselves; where a decision cannot be arrived at by consultation, the Office of Agriculture may refuse their applications.
　
Article 11 If a Chinese entity or person wishes to assign to a foreigner the right to file an application or the variety rights in respect of a new plant variety bred in China, such assignment shall be subject to examination and approval by the Ministry of Agriculture. Where it concerns service breeding, the assignment shall be examined, verified and approved by the administrative departments of agriculture of the provincial People's Governments (and for national entities, by their competent authorities) before its submission to the Ministry of Agriculture; where it does not concerns service breeding, it shall be submitted directly to the Ministry of Agriculture for examination and approval. If a State-owned entity wishes to assign the right to file an application or the variety rights within China, such assignment shall be subject to approval by the competent administrative department at a higher level, to which the entity is subordinate.
The Ministry of Agriculture shall publish the assignment of the right to file an application or of the variety rights, which shall enter into force on the date of its publication.
　
Article 12 The Ministry of Agriculture may decide to grant a compulsory license to produce, sell and exploit new varieties of plants under any of the following circumstances:
1. where it is necessary for the national or public interest;
2. where the variety rights holder has no justifiable grounds not to exploit the variety himself nor to authorize its exploitation by others under reasonable conditions;
3. where, in respect of a variety of important crops, although the variety rights holder has already exploited them, his exploitation clearly cannot meet the demands of the domestic market, and he does not authorize its exploitation by others under reasonable conditions.
Where a compulsory license is requested, a request to that effect shall be made to the Ministry of Agriculture, stating the grounds thereof and accompanied by supporting documents each in two copies.
　
Article 13 Any party who requests for adjudication of the exploitation fees by the Ministry of Agriculture under paragraph 2 of Article 11 of the Regulations shall make a request to that effect, accompanied by supporting documents that can show the failure to reach an agreement. The Ministry of Agriculture shall adjudicate within three months from the date of receipt of the request and shall notify the parties concerned accordingly.

Chapter III Conditions for the Grant of Variety Rights
　
Article 14 In accordance with the provisions of Articles 45 of the Regulations, the Ministry of Agriculture may grant variety rights where, within two 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 first included in the said list before the entry into force of the Regulations and those added thereto after the entry into force of the Regulations, 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.
　
Article 15 In accordance with the provisions of Article 18 of the Regulations, any of the following shall be avoided in the selection of a denomination for a new variety:
1. those consisting of only numbers;
2. those in violation of national laws or social morals, or with ethnic discriminations;
3. those using the names of countries;
4. those using the names of places of administrative districts at county level or above, or the names of well known places in foreign countries;
5. those using the same or similar identifying names of intergovernmental international organizations or famous international or national organizations;
6.
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