Cai Xinguang v. Runping Company Infringement on New Plant Variety Dispute Case

——Identification of reproductive materials protected by new plant variety rights

First trial case number: (2018) Yue 73 Minchu No. 732

Second trial case number: (2019) Supreme People’s Court Zhiminzhong No. 14

【The main takeaway of the trial】

The scope of protection of the authorized varieties is not limited to the propagation materials obtained in the specific way adopted when applying for the new plant variety rights, but should be living organisms with reproductive ability and capable of breeding new individuals with the same characteristics as the authorized varieties.

【Case Introduction】

Appellant (plaintiff in the original trial): Cai Xinguang

Appellee (defendant in the original trial): Guangzhou Runping Commercial Co., Ltd. (referred to as Runping Company)

Cai Xinguang applied for the "Sanhong Honey Pomelo" plant new variety right on November 10, 2009, and was authorized on January 1, 2014. The variety right number is CNA20090677.9, and the protection period is 20 years. The annual fee for the protection of the new plant variety rights for the fourth year has been paid on December 30, 2015. The current owner of the variety right owner is Cai Xinguang himself.

Cai Xinguang believes that the infringed honey pomelo fruit sold by Runping Company is not only the harvest material of the involved varieties, but also the propagation material. Without the permission of Cai Xinguang, Runping Company secretly and continuously sold the fruit of the infringed honey pomelo for a long period of time, and the sales price of the indicted honey pomelo fruit was higher than that of other honey pomelo. Its infringement caused great losses to Cai Xinguang and should bear legal responsibility according to law. Therefore, Cai Xinguang filed a lawsuit with the court of first instance: in accordance with the provisions of Article 73 of the Seed Law of China, ordered Runping Company to stop selling the fruits of Sanhong Honey Pomelo propagation material and to compensate Cai Xinguang for economic losses of 500,000 yuan and bear the cost of litigation in this case.

The original trial of the Guangzhou Intellectual Property Court held that the owner of the Sanhong Honey Pomelo variety is Cai Xinguang, and the variety right is within the protection period. Except as otherwise stipulated by law, no unit or individual may produce, propagate, or sell propagation material of the authorized variety without the permission of the owner of the new plant variety right. The reproduction material of the authorized variety shall not be reused for the production of reproduction material of another variety for commercial purposes. In this case, the infringed honey pomelo fruit as the harvested material should not be regarded as the propagation material of Sanhong honey pomelo. The sale of the infringed honey pomelo fruit as the harvested material does not infringe Cai Xinguang's new plant variety rights. Cai Xinguang's lawsuit against the infringement filed by Runping Company was not established and should be rejected. The verdict was as follows: Cai Xinguang's lawsuit was rejected. The case acceptance fee of 8,800 yuan was borne by Cai Xinguang. Cai Xinguang appealed to the Supreme People's Court against the judgment of the original trial court.

The Supreme People's Court held in the second instance that Cai Xinguang's appeal that the infringed honey pomelo fruit was Sanhong honey pomelo and the sales activities of Runping Company constituted an infringement that could not be established and should be rejected; The application of the law is inappropriate, but it does not affect the decision of the case. The judgment was as follows: the appeal was dismissed, and the original sentence was upheld. The case acceptance fee for the second instance of 8,800 yuan was borne by Cai Xinguang.

【Typical meaning】

According to the Seed Law, Regulation of the People's Republic of China on Protection of New Varieties of Plants and relevant judicial interpretations, the protection scope of the rights of new plant varieties is closely related to the propagation material and is the basis for the exclusive rights of the variety owners. The propagation material of the variety is defined as the protection scope of the new variety rights of the plant, because the genetic characteristics of the variety are included in the propagation material of the variety, and the propagation material reproduces the characteristics of the variety in the process of forming new individuals. The genetic information has been passed down from generation to generation through the propagation material, expressing characteristics that are clearly different from other varieties known at the time the application was submitted, and its characteristics have not changed after propagation.

Propagation materials include sexual propagation materials and asexual propagation materials, and plants or parts of plant bodies may become propagation materials. However, we can not simply put any living material of the plant body into the range of propagation materials protected by variety rights without distinction based on the totipotency theory of plant cells. The propagation material referred to by the new plant variety right involves the protection scope of the new plant variety right, and its determination is a matter of application of the law, and the analysis should be based on the legal system of the variety right. The court of second instance in this case put forward the identification standard of the propagation material protected by the new plant variety right, that is, whether it is a propagation material of a certain authorized variety, and it must meet the following conditions biologically: (1) it belongs to a living body; (2) it has the ability to reproduce; (3) the new individuals reproduced have the same characteristics as the authorized variety.

It should be pointed out that the new plant variety protection system protects the varieties that meet the authorization conditions and protects the authorized varieties by protecting the propagation materials, but the range of the propagation materials protected by the variety rights cannot be limited by breeding methods, nor can the propagation materials protected by variety rights be limited to the propagation materials obtained by the right holder in the specific way adopted when applying for the new plant variety rights. In addition, in the infringement dispute, whether it can be determined to be propagating material, the seller’s true intention to sell the alleged infringing plant should also be examined, that is, whether the intention is to sell the material as propagating material or as harvested material; for the user's defense that it is a use behavior rather than a production behavior, the user's actual use behavior should be reviewed, that is, whether the user directly uses the harvested material for consumption or uses it for breeding authorized varieties.

This analysis is based on the case mentioned in Summary of the Judgment of the Intellectual Property Court of the Supreme People's Court (2019), you can referred to the original article through links below:

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

Link to the Part III: http://www.chinaiptoday.com/post.html?id=834

Link to the Part IV: http://www.chinaiptoday.com/post.html?id=837