Parental protection conditions and pathways for new plant varieties—A review of typical cases from the Supreme People’s Court

Preface

The healthy, sustainable, and stable development of the seed industry is the foundation for ensuring my country’s food security. In today’s era of rapid development in breeding technology, the protection of seed industry intellectual property rights is of great significance. Traditionally, seed industry intellectual property rights are protected through two paths: plant variety rights and patent rights. At the end of 2022, the Supreme People’s Court clarified the conditions for protecting the parent lines of new plant varieties as trade secrets through typical cases, expanding new paths for parent line protection.

In April of this year, General Secretary Xi Jinping pointed out during his inspection in Guangdong that “the seed industry is the foundation of modern agriculture and fisheries development, and this work must be done meticulously and well.” In May of this year, a Xinhua News Agency article pointed out that General Secretary Xi Jinping has always been concerned about the revitalization of the seed industry. Since the 18th National Congress of the Communist Party of China, he has given important instructions on many occasions, emphasizing that “only by firmly grasping Chinese seeds with our own hands can we secure China’s food supply and achieve food security,” pointing the way for the reform and development of the seed industry. Seeds are the “chips” of agriculture; tiny seeds are connected to “the nation’s most important matters.” Innovation, change, overcoming difficulties, protection and utilization… Across the land of China, the development of the seed industry is like a seed breaking through the soil, vigorous and robust [1]. Seeds are the core of agricultural production, and the seed industry is a crucial part of my country’s agricultural sector. Protecting intellectual property rights in the seed industry is tantamount to protecting the development of my country’s agriculture. A seed industry intellectual property protection system can prevent the circulation of counterfeit and substandard seeds, ensuring seed quality and safety, which is vital for maintaining a fair competitive environment. Strengthening the protection of seed industry intellectual property rights helps enhance the international competitiveness of my country’s seed industry and agricultural products. Furthermore, the seed industry intellectual property protection system can promote improved variety innovation and increase grain yield and quality, which is of great significance to my country’s food security.

I. Parental Lines of New Plant Varieties

New plant varieties are often referred to as plant variety rights, which are the exclusive rights legally enjoyed by the breeding unit or individual over the authorized variety. In this article, “new plant varieties” refers to plant varieties that have been artificially cultivated or discovered and improved, regardless of whether they have been granted plant variety rights or whether they meet the legal requirements for plant variety rights authorization.

Parental lines refer to seed materials obtained through sexual hybridization or self-pollination in plant breeding, and are the basis for the selection and breeding of new plant varieties. Parental lines typically include the male and female parents. For ease of understanding, we can roughly think of it as the male parent providing pollen, and the female parent’s ovary (ovules) receiving the pollen to produce fruit, which is the seed of the new plant variety. Of course, the actual breeding process is much more complex. In principle, parental hybridization methods include reciprocal crosses, single crosses, multiple crosses, and backcrosses. Hybrid parents often originate from inbred lines, which are relatively homozygous offspring produced by continuous self-pollination of a superior parent over multiple generations, followed by selection. The parents of new plant varieties mainly come from the following sources:

Wild plants in nature: Wild plant resources are abundant and serve as an important resource for plant breeders to select new varieties. Seed materials of wild plants with superior traits can be obtained through field surveys, collection, and introduction and domestication.

Existing varieties: Through the improvement and hybridization of existing varieties, new varieties with better traits can be obtained. For example, by hybridizing two different varieties, hybrid offspring with superior traits can be obtained.

New plant varieties created artificially: New plant varieties can be created through modern biotechnology methods such as artificial mutagenesis and transgenics. For example, through genetic engineering, genes with desirable traits can be introduced into a plant variety, resulting in a new variety with even better traits.

II. The Significance of Protecting Parental Lines for New Plant Varieties

Based on the above introduction, the parental lines of new plant varieties can be likened to the father and mother of hybrid plant varieties, and their importance in the field of breeding is self-evident. Therefore, protecting the parental lines of new plant varieties is of great significance.

First, the application of parental lines for new plant varieties can increase crop yields. Through hybridization breeding between different varieties, new high-yielding and high-quality varieties can be created. For example, my country’s world-renowned hybrid rice is cultivated from various parental lines. In addition, some fruit tree varieties can also achieve high yields and high quality through hybridization breeding.

Second, the application of parental lines for new plant varieties can improve crop quality. Problems with the poor quality of some crops, such as Fusarium head blight in wheat and excessive cadmium content in rice, can be solved through hybridization breeding. By hybridizing low-quality and high-quality materials, new varieties of even higher quality can be obtained. For example, Chinese scientists have successfully bred a high-quality red apple variety called “Hongyou No. 1” through hybridization breeding. Its excellent taste, vibrant color, and high sugar content have made it very popular with consumers.

Third, the application of parent plants for new varieties can enhance the crop’s resistance to diseases and pests. Some crops, such as rice and wheat, are susceptible to pests and diseases. By hybridizing these crops with other varieties that are more resistant to diseases and pests, new resistant varieties can be created.

Fourth, the application of parent plants for new varieties can also promote sustainable agricultural development. Traditional breeding methods often rely on random processes such as natural selection and gene mutation, which are difficult to meet the rapidly expanding demands of modern agricultural production. The application of parent plants for new varieties, however, allows for the artificial control of the breeding process, accelerating the selection and promotion of new varieties. At the same time, by rationally utilizing hybrid vigor, the use of pesticides can be reduced, lowering the risk of environmental pollution and promoting sustainable agricultural development.

Finally, Article 6 of the *Regulations on the Protection of New Plant Varieties of the People’s Republic of China* (revised in 2014) stipulates that the propagation material of an authorized variety may not be reused for commercial purposes in the production of propagation material of another variety. This can be understood as the scope of protection for new plant variety rights affecting the breeding and sale of its parent plants. In practice, protecting the paternal parent of a new plant variety has significant economic implications.

III. Conditions for Protecting Parent Plants as Trade Secrets

The case of Hebei Huasui Seed Industry Co., Ltd. v. Wuwei Bosheng Seed Industry Co., Ltd. concerning infringement of trade secrets is the third of the third batch of typical cases of judicial protection of seed industry intellectual property rights released by the Supreme People’s Court, and also the fourteenth typical case of the Supreme People’s Court’s Intellectual Property Court in 2022. In this case, Huasui Seed Industry Co., Ltd. is the variety right holder of the new corn plant variety “Wannuo 2000” and the holder of the trade secret right of the parent plant “Wannuo 2000” “W68”. It filed a lawsuit against Bosheng Seed Industry Co., Ltd. in the Intermediate People’s Court of Lanzhou City, Gansu Province, alleging infringement of trade secrets, and requesting that Bosheng Seed Industry Co., Ltd. bear the relevant infringement liability. The court of first instance held that Bosheng Seed Industry Co., Ltd. had infringed upon the trade secret rights of “W68” and ordered it to cease the infringement and compensate for economic losses and reasonable expenses for safeguarding its rights, totaling RMB 1.505 million. Bosheng Seed Industry Co., Ltd. appealed, arguing that “W68,” as a parent line, was not an object of trade secret protection. The Supreme People’s Court, in its second instance ruling, held that intermediate breeding materials and inbred parent lines formed during crop breeding are intellectual achievements resulting from the breeder’s creative labor, possessing both technical information and physical carriers, and the two are inseparable; if they meet the conditions of not being known to the public and taking corresponding confidentiality measures, they can be protected as trade secrets according to law. Therefore, the appeal was dismissed and the original judgment upheld [2].

In the second instance judgment [3], the Supreme People’s Court held that whether the parent line of a new plant variety meets the conditions for trade secret protection mainly involves three specific issues. First, does the parent plant of a new variety fall under the protection of trade secrets?

The Supreme People’s Court holds that intermediate breeding materials and inbred lines formed during the breeding process are the intellectual achievements of breeders’ creative labor. They carry specific genetic information formed through the breeder’s selection and domestication of plant materials in nature or selection of traits from existing varieties. These breeding materials possess both technical information and physical carriers, and the two are inseparable. Provided other conditions for trade secret protection are met, the parent plant of a new variety falls under the protection of trade secrets.

Second, were the parent plants not publicly known at the time of the alleged infringement, thus possessing secrecy?

The Supreme People’s Court holds that whether the object of trade secret protection possesses secrecy should be judged by whether it is generally known and easily accessible to relevant personnel in the field. The key point is that the object of secrecy should refer to specific technical information content, not merely the name or code of technical information. If the rights holder has actual control over the breeding materials and has taken reasonable confidentiality measures, then the materials possess secrecy.

Third, whether the parent plants have been subject to corresponding confidentiality measures by the rights holder.

Regarding this, the Supreme People’s Court believes that when determining confidentiality measures, the people’s court should consider the degree of correspondence between the confidentiality measures and trade secrets. Plant growth requires reasonable planting management and a certain scale of seed production. In field management, the confidentiality measures taken cannot be required to achieve a foolproof standard. Generally, it is sufficient to achieve a level of prevention that prevents leakage under normal circumstances.

IV. Analysis of Parent Plant Protection Pathways

China adopts a specialized legislative model to protect intellectual property rights related to new plant varieties. In the past, patent protection and plant variety rights protection were the two main pathways. For plant breeding methods, functional genes related to plant varieties, encoded proteins, and vectors, patent protection is often used. Article 25, Paragraph 1 of the Patent Law stipulates that no patent rights are granted for animal and plant varieties. Article 25, Paragraph 1 of the Patent Law is a prohibitive provision for special circumstances. The Seed Law and the Regulations on the Protection of New Plant Varieties protect its prohibited content, providing plant variety rights protection. Therefore, in theory, the protection of new plant varieties by the Seed Law and the Regulations on the Protection of New Plant Varieties complements the protection by the Patent Law, thus constructing a system of intellectual property protection related to new plant varieties [4]. The above cases demonstrate that trade secret protection, as an important protection path, further improves this protection system.

Therefore, there are currently three main paths for protecting the parent plants of new plant varieties:

First, using trade secret protection

The above guiding cases clarify that the parent plants of new plant varieties are the object of trade secret protection and can be protected as trade secrets. The key to trade secret protection lies in adopting “reasonable” protection measures. To achieve this standard, a relatively sound trade secret protection system is needed.

Second, using plant variety rights protection

Patent rights and plant variety rights are both rights that are applied for, examined and authorized by the national administrative department. For the parent plants of new plant varieties, they are also plant varieties themselves; therefore, their varieties are not the object of patent protection, and thus they can be excluded from patent protection. If the parent plants of new plant varieties meet the conditions for plant variety rights authorization, they can apply for plant variety rights separately.

Third, the peripheral rights of the parent plants of new plant varieties, such as cultivation methods and equipment, can be protected by patents.

For the new plant varieties themselves, to realize their commercial value, they must be sold and promoted. The Seed Law stipulates that sales and promotion must be approved by the provincial seed management department beforehand. Furthermore, crop varieties that have been approved or registered for more than two years without applying for plant variety rights are considered to have lost their novelty. In other words, if sales, promotion, or approval has been carried out, and plant variety rights have not been applied for within the prescribed period, the variety will permanently lose the right to apply for plant variety rights due to the loss of novelty. Therefore, it can be protected as a trade secret in the short term, but in the long term, it must apply for plant variety rights to obtain protection.

The parent plants of new plant varieties are different from the new plant varieties themselves. The parent plants do not necessarily need to be sold or promoted; as long as the new plant variety, which serves as the daughter plant, is sold and promoted, its commercial value can be realized. Therefore, for the parent plants of new plant varieties, breeders can choose the protection path based on the actual situation.

V. Conclusion

The protection of parent plants of new plant varieties as trade secrets is a complex issue involving multiple aspects such as law, technology, and management. Applicants should fully recognize the importance of protecting parent plants during the cultivation of new plant varieties and take effective measures to ensure they are not illegally obtained and used. At the same time, the government and society should increase their support for the cultivation of new plant varieties, providing a favorable environment and conditions for innovation.

References:

[1] Xinhua News Agency, New Era, New Journey, New Great Cause: Matters of Concern to General Secretary Xi Jinping | The “Core” Wish of Seeds, 2023.05.14, http://m.news.cn/2023-05/14/c_1129612928.htm

[2] Supreme People’s Court, Hebei Huasui Seed Industry Co., Ltd. v. Wuwei Bosheng Seed Industry Co., Ltd. – Case Analysis of the Fourteenth Typical Case of the Intellectual Property Court of the Supreme People’s Court in 2022.

[3] Supreme People’s Court, Civil Judgment No. 147 of 2022. [4] Luo Xia, Patent protection of plant breeding achievements, [J]. Intellectual Property, 2020 (2): 39-47.