Burden of proof allocation in plant variety infringement cases

In civil litigation, judges must make rulings based on facts and law. The ascertainment of facts relies on evidence provided by the parties or collected by the court through its own investigation. If a party cannot provide sufficient evidence to support their claim, their claim is often unlikely to be supported by the court. This situation is commonly summarized as “litigation is about evidence.”

The allocation of the burden of proof is the core of the civil burden of proof system and is considered the “backbone of civil litigation.” A reasonable allocation of the burden of proof helps the court ascertain the facts and make a fair and just judgment. During litigation, if a party cannot bear the burden of proof, they may suffer legal consequences due to insufficient evidence. Therefore, parties should actively prepare evidence before litigation to avoid losing the case due to insufficient evidence.

I. Characteristics of the Allocation of the Burden of Proof in Plant Variety Infringement Cases

Article 64, Paragraph 1 of the Civil Procedure Law of the People’s Republic of China stipulates that parties have the responsibility to provide evidence for their claims. The responsibility to provide evidence as described in the above legal provisions is the burden of proof. In civil litigation, parties have the responsibility to provide evidence to prove their claims; that is, “whoever asserts, bears the burden of proof.”

Based on considerations of fairness and reasonableness, in civil litigation, the burden of proof is not solely the responsibility of the plaintiff; the defendant should also bear the burden of proof. In certain special circumstances, the plaintiff only needs to provide preliminary evidence to prove the defendant’s infringement, while the defendant bears the responsibility of proving their lack of fault or the absence of a causal relationship between the infringement and the damage. This situation is called a reversal of the burden of proof. The allocation of the burden of proof should be reasonable and should be determined based on the specific circumstances of the case, comprehensively considering factors such as the parties’ ability to provide evidence and the ease of collecting evidence.

In plant variety infringement cases, the allocation of the burden of proof has its own unique characteristics. For example, many plant variety infringements are highly covert, such as not having contracts during seed propagation, distributing propagation materials through covert channels, or paying related fees through covert means such as cash. In many cases, the variety rights holder often finds it difficult to collect effective direct evidence. In such situations, timely shifting of the burden of proof based on the relevant facts and evidence is key to legally holding the true infringer accountable.

Another situation is that the accused infringer disagrees with the results of molecular marker detection such as gene fingerprinting. Article 23 of the “Several Provisions of the Supreme People’s Court on the Specific Application of Law in the Trial of Disputes over Infringement of Plant Variety Rights (II)” stipulates that if the difference between the tested sample and the control sample is less than but close to the critical value when identified by molecular marker detection methods such as gene fingerprinting, the accused infringer shall bear the burden of proof if he/she claims that the two have different characteristics. In the Supreme People’s Court’s Guiding Case No. 92 [1], the number of difference sites detected by SSR was less than two. In this case, the two varieties are generally considered to be similar varieties. According to the previous judicial interpretation, the Supreme People’s Court held that the burden of proof should be borne by the accused infringer. However, the defendant, Fukai Company, failed to provide contrary evidence after being explained, and did not have the conditions for DUS detection. Therefore, the infringement in this case was found to be established, and the accused infringer bore the consequences of the infringement. In addition, in the proof of facts such as the parental relationship of the accused varieties, the differences between varieties with the same name, and the fact that the accused infringing behavior was not for production and propagation, there are some special situations in the allocation of the burden of proof in plant variety infringement cases. II. The Importance of Burden of Proof Allocation

Article 64 of the Civil Procedure Law has two meanings: first, parties must provide evidence for their claims; second, if a party provides insufficient or no evidence, they shall bear the legal consequences of losing the case. Therefore, the allocation of the burden of proof often determines the final outcome of a case. In many cases, the allocation of the burden of proof is the focus of dispute between the parties.

For example, in a case involving the infringement of the “Double-Season Locust Tree” variety, the plaintiff, Laizhou Yongheng Locust Research Institute, claimed that the propagation material sold by Maoduan Planting Cooperative and Lei Moumou was “Double-Season Locust Tree,” infringing on its variety rights. In the first instance, the court held that the audio and video recordings provided by the plaintiff were insufficient to prove that the plaintiff’s authorized variety had the same characteristics or was related to the variety sold by the defendant, and could not prove that the defendant had infringed on the plaintiff’s plant variety rights. Therefore, the court dismissed the plaintiff’s claim. In the second instance, the allocation of the burden of proof became the focus of the dispute. The appellant (the plaintiff in the first instance) argued that the first instance court had made a mistake in allocating the burden of proof, as the infringing object was in the hands of the appellee (the defendant in the first instance), and that allocating the burden of proof to the plaintiff in the first instance for providing the allegedly infringing object violated the principle of fairness. The second instance court held that the first instance court’s allocation of the burden of proof was correct. As the appellant, who bore the burden of proving that the plant variety involved in this case was identical in varietal characteristics and properties, did not submit an application for identification in the first instance. Therefore, there was no premise that the respondent refused to provide the object for identification, and it could not be determined that the respondent would bear the legal consequences of failing to provide evidence. The second instance court upheld the first instance judgment [2]. After the second instance judgment was made, the Laizhou Yongheng Sophora japonica Research Institute applied to the Supreme People’s Court for retrial. The Supreme People’s Court ordered the original second instance court to retry the case. In the retrial, the applicant and the respondent debated the allocation of the burden of proof again. The retrial court held that, based on the existing evidence in this case, the possibility that the propagation material sold by the respondent Maoduan Planting Cooperative and Lei Moumou was “double-season locust tree” had reached the standard of high probability. The respondent did not provide corresponding rebuttal evidence, and its infringement should be established [3]. In the retrial, the retrial court did not clarify whether the allocation of the burden of proof in the previous trial was correct. However, considering the fact that the respondent did not provide corresponding rebuttal evidence, it can be seen that the burden of proof was not completely allocated to the applicant in the retrial. In the end, the retrial judgment was reversed, finding the respondent guilty of infringement and liable for infringement. As the parties argued about the burden of proof, the outcome of this case was largely determined by the allocation of the burden of proof. If the burden of proof was mainly allocated to the plaintiff in the first instance, the result would be as in the first and second instance judgments, where the plaintiff in the first instance lost the case due to insufficient evidence. However, if, based on the existing evidence, a presumption was made according to the standard of high probability, and the defendant in the first instance was required to provide contrary evidence, the defendant in the first instance would lose the case because it did not provide corresponding rebuttal evidence. III. Burden of Proof Allocation in Practice

As mentioned earlier, in plant variety infringement cases, the burden of proof often needs to be shifted appropriately based on the relevant facts and evidence. In September 2021, the Supreme People’s Court released its first batch of 10 typical cases of judicial protection of seed industry intellectual property rights by people’s courts. Case No. 5, the SBS902 hybrid maize seed infringement case, is a typical example of the shifting of the burden of proof.

In this case, Xiamen Huatai Company is the variety right holder of the new maize variety “SBS902”. Xiamen Huatai Company discovered that a village committee had organized the production of over 400 mu of “SBS902” hybrid maize seeds. Xiamen Huatai Company solidified the evidence through notarization and tested the allegedly infringing seeds. Xiamen Huatai Company argued that the production was commissioned by Sanbao Seed Industry Company, and the parent lines were provided by Sanbao Seed Industry Company. Therefore, it sued, requesting the court to order Sanbao Seed Industry Company to cease infringement and compensate for losses, with the village committee bearing joint and several liability for the losses. Sanbao Seed Industry Co., Ltd. only provided a defense, stating that it had not entrusted any seed production to the plot of land under notarized preservation. However, it did not submit any evidence to prove its claim, nor did it provide any information on the actual seed production situation in a certain village. Therefore, the court of first instance held that the infringement was established. In the second instance, Sanbao Seed Industry Co., Ltd. submitted evidence such as corn seed production contracts. However, the evidence did not specify the specific plot of land planted, and could not prove the actual variety produced by Sanbao Seed Industry Co., Ltd. and the actual production area claimed by it. It also lacked evidence of payment and settlement, as well as evidence such as the distribution of parent lines and the seed purchase roster. The court of second instance did not accept the evidence of Sanbao Seed Industry Co., Ltd. and upheld the judgment of the first instance [4]. Although in order to protect the legitimate rights and interests of the variety right holder, the court will transfer the burden of proof according to the actual situation of the case, the variety right holder still needs to fulfill the reasonable burden of proof in the process of protecting the rights, otherwise he may bear the risk of unfavorable evidence. In the case of infringement of the “Denghai No. 9” corn variety, Denghai Seed Industry Co., Ltd. believed that Julong Tengfei Seed Industry Co., Ltd. infringed on the plant variety rights of Denghai Seed Industry Co., Ltd. However, the notarized evidence submitted by Denghai Seed Industry Company had obvious flaws. The notarized document did not record which plot of land the corn kernels were taken from and which farmer they belonged to. The sampling location of the notarized document was unclear, and the kernel bags were not signed and acknowledged by the person who took them. The statements of the relevant personnel were also inconsistent. Therefore, the court of first instance held that the evidence in this case could not form a complete chain of evidence to prove the existence of the infringement. The court of second instance held that the claim by Denghai Seed Industry Company that Julong Tengfei Seed Industry Company infringed on Denghai Seed Industry Company’s plant variety rights was not supported by sufficient evidence to prove the infringement, and Denghai Seed Industry Company, which bore the burden of proof, should bear the adverse consequences. The court of second instance upheld the judgment of the first instance and dismissed the lawsuit filed by Denghai Seed Industry Company[5].

IV. Summary and Outlook

The protection of new plant varieties has an irreplaceable significance for promoting the progress of seed industry technology, ensuring national food security, and promoting the sustainable development of agriculture. At present, in judicial practice, the reasonable allocation of the burden of proof often plays a decisive role in the outcome of the case. In a sense, this situation reflects the lack of probative value of existing types of evidence. On the one hand, it is necessary to clarify the rules for the allocation of the burden of proof in order to better protect legitimate rights. On the other hand, with the development of agricultural science and technology and the rapid development of testing methods, the types of evidence will inevitably become more diversified, the means of ascertaining the facts will inevitably become more abundant, and the facts will inevitably become easier to ascertain. At that time, the protection of plant variety rights will inevitably reach a new level.

References

[1] Supreme People’s Court, Guiding Case No. 92, Laizhou Jinhai Seed Industry Co., Ltd. v. Zhangye Fukai Agricultural Technology Co., Ltd., Dispute over Infringement of Plant Variety Rights.

[2] Shanxi Provincial Higher People’s Court, Civil Judgment No. 163 of 2017.

[3] Shanxi Provincial Higher People’s Court, Civil Judgment No. 41 of 2019.

[4] Supreme People’s Court, Civil Judgment No. 428 of 2020.

[5] Gansu Provincial Higher People’s Court, Civil Judgment No. 20 of 2008.