III. Trial of Cases of New Varieties of Plants

26. Relationship between Variety Certification and Granting of Right of the New Variety of Plant

In the dispute over infringement of right of new variety of plant of  Qinghai University for Nationalities(the appealer) Vs Qinghai Jinxiang Biotechnology Development Co., Ltd (the appellee) [final ruling No. 585 for IP civil case in the supreme court (2019)],  the supreme court pointed out that variety certification is an administrative licensing for entry to the market, while granting of the right of the new variety of plant is granting of a civil right, therefore, they are not necessarily related with each other, and the fact of obtaining variety certification shall not be taken as the basis for determining the right of new variety of plant.

27. Determination of Propagative Materials

In the dispute over infringement of right of new variety of plant of Cai Xinguang (the appealer) Vs  Guangzhou Runping Commercial Co., Ltd(the appellee) (referred to as the dispute over infringement of right of new variety of plant of “Sanhong pomelo” hereinafter)[final ruling No. 14 for IP civil case in the supreme court (2019)], the supreme court pointed out that a propagative material in the current protection scope for right of new variety of plant shall be an alive body having fertility and shall be able to reproduce new individuals having the same characteristics with the authorized variety. The protection scope of the authorized variety is not limited to the propagative material obtained in specific manner when applying for the right of new variety of plant. When a plant different from the propagative materialfor authorization has been commonly used by the breeder, this planting material shall be included into the protection scope of the new variety of plant as a propagative material of the authorized variety.

28. Determination of Infringement on New Variety of Plant by an Act of Selling a Planting Material with Attributes of both Harvesting Materials and Propagative Materials

In the above dispute over infringement of right of new variety of plant of “three-red pomelo”, the supreme court pointed out that if a planting material can be used as both a harvesting material and a propagative material, the real sale intent of the seller and the actual use act of the user shall be taken into consideration when determining whether the act of selling the plating material infringes the right of new variety of plant.

29. Determination of Exclusive Implementation Licensing for Right of New Variety of Plant

In the dispute over infringement of right of new variety of plant and unfair competition of Jiangsu Fengqing Seed Technology Co., Ltd(the appealer) Vs  Anhui Hequan Seed Industry Co., Ltd(the appellee) and Anhui lelinong Seed Industry Co., Ltd (defendant in the original trial) [final ruling No. 130 for IP civil case in the supreme court (2019)],the supreme court pointed out that exclusive implementation licensing for right of new variety of plant means that the licensee obtains the unique right of implementing the authorized variety in the authorized legal domain for the right of the new variety of plant, and if the so-called “Exclusive Implementation Licensing” obtained by the licensee is limited by additional domain restriction in the authorized legal domain, then this implementation licensing constitutes a common implementation licensing.

IV. Judgement on Technology Secret Cases

30. Treatment of Criminal and Civil Cross Cases Involving Commercial Secrets

In the dispute over technical secret licensing contract of Ningbo Biwo Textile Machinery Co., Ltd (the appealer) VS  Ningbo Cixing Co., Ltd (the appellee) [final ruling No. 333 for IP civil case in the supreme court (2019)], the supreme court pointed out that the dispute over commercial secret licensing contract caused by breach of confidence is not based on the legal relationship generated by the same legislative fact as the associated criminal case,  and the court may transfer the criminal suspect while continuing to hear the dispute over commercial secret licensing contract.

31. Joint Trial of Proceeding of Infringement of Technical Secret and Proceeding of Ownership of Patent Right

In the dispute over infringement of technical secret and ownership of patent right of Dalian Bomai Technology Development Co., Ltd (the appealer) VS He Kejiang and Suzhou Makowangzhi Biotechnology Co., Ltd (appellees) [final ruling No. 672 for IP civil case in the supreme court (2019)],  the supreme court pointed out that wherethe proceeding of infringement of technical secret and proceeding of ownership of patent right are based on the same fact or the results of judgements are interrelated, it is appropriate to perform joint trial.

Link to the Part I: http://www.chinaiptoday.com/post.html?id=832

Link to the Part II: http://www.chinaiptoday.com/post.html?id=833