When protecting the rights of new plant varieties, be careful not to choose the wrong sample

The holder of a plant variety right enjoys an exclusive right over the authorized plant variety. Without the permission of the variety right holder, no entity or individual may produce or sell the propagation material of the authorized variety for commercial purposes, nor may they reuse the propagation material of the authorized variety for commercial purposes to produce the propagation material of another variety.

In practice, proving the existence of infringement necessarily requires comparing the accused propagation material with the plant variety right in question. The comparison involves samples of the two varieties. If the samples themselves are questionable, it will obviously affect the determination of infringement. Therefore, the selection of plant variety samples is crucial in rights protection.

I. Common Evidence Methods in Plant Variety Right Protection The core of determining whether propagation material infringes on plant variety rights lies in comparing the accused propagation material with the plant variety in question to determine whether the accused propagation material falls within the scope of protection of the variety right. A relatively authoritative method is to conduct a DUS field observation test comparison. The Supreme People’s Court’s Provisions (II) on Several Issues Concerning the Specific Application of Law in Adjudicating Disputes over Infringement of Plant Variety Rights explicitly stipulate that, in cases where DNA testing results and DUS (Distinctness, Uniformity, and Stability) field observation test results are inconsistent, the DUS field observation test results shall prevail.

DUS is a method used to assess the distinctiveness, uniformity, and stability of new plant varieties. Field observation comparison testing involves planting two or more plant varieties in the field for observation and comparison. DUS field observation comparison testing typically includes three phases: distinctiveness, uniformity, and stability. In the distinctiveness phase, testers observe the differences between the comparison varieties to determine whether the accused variety possesses unique characteristics. In the uniformity phase, testers assess the uniformity of the comparison varieties at different times and locations to ensure that the same variety performs consistently under different environments. In the stability phase, testers observe the performance of the comparison varieties in different years and under different environments to determine whether they possess stable genetic characteristics.

The advantages of the DUS field observation test method are its comprehensiveness and systematic approach; however, its disadvantages include a longer evidence collection period, higher costs, and greater difficulty. Therefore, since the beginning of the 21st century, with the development of gene fingerprinting, gene fingerprinting has become a common method for protecting the rights of new plant varieties. Currently, the main gene fingerprinting methods include SSR markers, SNP markers, and the MNP marker method independently developed in my country. Gene fingerprinting methods typically select a fixed number of loci, then determine the number of identical loci, and based on the number of identical loci, determine whether the variety is the same, similar, or different.

Whether it’s the DUS field observation comparison test or the gene fingerprinting method, the object of the test is the sample provided by the applicant. The sample is the foundation of the test; whether the sample selection is correct directly determines the relevance and probative value of the test results. To better address the standardization issue of plant variety samples, the Ministry of Agriculture and Rural Affairs established the Plant Variety Preservation Center in 1999 to preserve standard samples of new plant varieties. Currently, the safe preservation period is over 25 years.

II. Case Analysis Involving Sample Selection When protecting the rights of new plant varieties, if standard samples have been preserved, the rights holder should prioritize selecting the standard samples as the samples for comparison testing. Standard samples are crucial evidence for demonstrating the uniqueness, uniformity, and stability of new plant varieties. Without standard samples, rights holders may be unable to provide sufficient evidence to support their claims during the rights protection process. Samples of the accused variety require notarization or other methods to solidify the evidence, ensuring their authenticity, legality, and relevance.

In the “WG646” corn variety infringement dispute case, the plaintiff, Wugu Company, conducted evidence preservation at the seed production site of the accused variety. Notary public staff photographed and videotaped the sampling and sealing process. Under the supervision of a notary, the preserved seeds were mailed to the Beijing Corn Seed Testing Center for testing. The test report showed that the two compared varieties were the same. During the first instance trial at the Zhangye Intermediate People’s Court, the defendant, Hongtai Company, argued that the test report submitted by Wugu Company did not determine the source of the standard samples and requested that the Ministry of Agriculture extract the “WG646” standard samples for authenticity verification, comparing them with the samples notarized and sealed by Wugu Company and the samples sealed by Hongtai Company when commissioning production in Dongsan Village. The Zhangye Intermediate People’s Court commissioned the Science and Technology Development Center of the Ministry of Agriculture to conduct authenticity verification of the samples notarized and preserved by Wugu Company, the HT17-9 samples sealed by Hongtai Company during seed production in Dongsan Village, and the “WG646” standard samples [1]. However, a technical unexpected event occurred during the second test. For corn varieties, under normal circumstances, SSR testing requires testing 40 points. According to relevant standards, a difference of 0 points indicates the same or very similar varieties, a difference of 1 point indicates similar varieties, and a difference of 2 or more points indicates different varieties. In the second test, 37 points were the same, 1 point was a difference point, and 2 sites did not amplify specific bands, meaning it was impossible to determine whether these two points were difference points. This meant that the second test could not determine whether the two compared varieties were similar. Furthermore, the plaintiff’s notarized seeds had been used up, making further judicial identification impossible. Ultimately, the court dismissed Wugu Company’s lawsuit. In this case, the plaintiff, Wugu Company, initially failed to select a standard sample for comparison, and subsequently failed to retain backup samples during testing. Consequently, the court was unable to ascertain the facts, leading to adverse consequences for Wugu Company.

(2022) Supreme People’s Court Intellectual Property Civil Final Judgment No. 136

In the “Caitiannuo 866” case, the plaintiff, Hengcai Company, submitted a test report using the SSR marker method. A total of 40 loci were compared, and the number of differing loci was 0, indicating that the varieties were extremely similar or identical. The defendant, Zhengzhou Huawei Seed Industry Company, questioned the test samples, arguing that it could not prove that the submitted samples were notarized and preserved. The defendant, Zhengzhou Huawei Seed Industry Company, also submitted a test report, using the SSR marker method to test the submitted sample “Caitiannuo 866” and the control sample “Caitiannuo 6”. After comparing DNA band data using 40 pairs of SSR primers, the number of differing loci was 35, indicating that the varieties were different.

During the trial, Hengcai Company commissioned an appraisal agency to conduct an authenticity appraisal of the allegedly infringing corn seeds and the standard sample of the variety “Caitiannuo 6” collected and approved by the Ministry of Agriculture and Rural Affairs. Using the SSR marker method, the number of comparison sites was 40, and the number of difference sites was 0. The conclusion was: extremely similar or identical. Zhengzhou Huawei Seed Industry Company commissioned an appraisal agency to conduct an authenticity appraisal of the “Caitiannuo 866” it provided and the allegedly infringing corn seeds. Using the SSR marker method, the number of comparison sites was 40, and the number of difference sites was 35. The conclusion was: different. Based on the test report between the allegedly infringing corn seeds and the standard sample of the variety approved by the Ministry of Agriculture and Rural Affairs, the Supreme People’s Court determined that the evidence submitted by Hengcai Company could prove that the allegedly infringing corn seeds and “Caitiannuo 6” were genotypes extremely similar or identical. However, the allegedly infringing corn seeds and the “Caitiannuo 866” provided by Zhengzhou Huawei Seed Industry Company itself were not identical. Instead, it was considered that the parent of the “Caitiannuo 866” that it claimed to produce could not be used to prove the parent of the allegedly infringing corn seeds.[2]

(2022) Supreme People’s Court Intellectual Property Civil Final Judgment No. 13

This case demonstrates that the authenticity, legality, and relevance of a sample are often more important than the appraisal result. When the appraisal result is authentic and valid, different samples can prove different facts. In infringement litigation, both parties should carefully select samples to achieve their evidentiary purpose.

III. Determining the Scope of Variety Rights Protection in the Absence of Standard Samples As mentioned earlier, the importance of standard samples is paramount. Generally, the scope of variety rights protection is based on the standard samples submitted and preserved by the variety right holder to the administrative authority. That is, after comparison, if the sample of the accused variety is identical or similar to the standard sample, it is often deemed to constitute infringement. However, in some cases, it is impossible to obtain preserved standard samples. In this situation, determining the scope of variety rights protection becomes a core issue: by whom should the accused infringing propagation material be compared to determine its infringement?

In the “Zhonggan Institute No. 5” case, the variety involved was an asexually propagated variety. For various reasons, the standard sample of the authorized variety was not preserved. In subsequent infringement disputes, it was impossible to obtain standard samples for comparative testing. The plaintiff, Benxiang Company, collected samples from the fruit trees propagated from the mother tree indicated in the variety right approval process at the site of the on-site inspection. The sampling process was notarized, and the sampling personnel issued a certificate of origin. The Supreme People’s Court held that, firstly, based on the facts of the application and review of the variety right application for “Zhonggan Institute No. 5,” the approval authority conducted an on-site inspection during the review, and the resulting “On-site Inspection Report on Agricultural Plant Variety DUS Testing” could determine the planting location of the mother tree of the authorized variety. Secondly, when applying for the authorized variety, the mother tree was used as a sample for trait comparison, thus confirming the trait characteristics as specific and granting authorization. Thirdly, for asexually propagated varieties, both the entire plant and its branches can serve as propagation material. Other individuals propagated from the mother tree’s propagation material through asexual reproduction can be used as propagation material for the authorized variety, thereby determining its scope of protection. Accordingly, the Supreme People’s Court supported the plaintiff’s claim and ruled that infringement was established [3]. Scan the QR

(2022) Supreme People’s Court Intellectual Property Civil Final Judgment No. 782

It can be seen that although standard samples are very important, the inability to obtain standard samples does not necessarily mean that the scope of protection of plant variety rights cannot be determined, and may even lead to the inability to protect rights. As long as evidence is collected in a standardized manner and a complete chain of evidence is formed to prove the infringement, it can still be protected by law.

IV. Summary and Outlook

Plant variety protection is an important part of intellectual property protection, and it is of great significance for promoting agricultural science and technology progress, protecting farmers’ interests, and promoting sustainable agricultural development. At present, my country has established a relatively complete plant variety protection system, but there are still some problems and challenges. In the process of combating infringement, determining the correct sample helps to protect the legitimate rights and interests of plant variety right holders and improve the efficiency and effectiveness of rights protection. In the process of rights protection, do not choose the wrong sample, as this will lead to the evidence failing to achieve the purpose of proof and ultimately the inability to protect rights.

References

[1] Supreme People’s Court, (2022) Supreme People’s Court Intellectual Property Civil Final Judgment No. 136.

[2] Supreme People’s Court, (2022) Supreme People’s Court Intellectual Property Civil Final Judgment No. 13. [3] Supreme People’s Court, (2022) Supreme Court Intellectual Property Civil Final Judgment No. 782.