WORLD TRADE ORGANIZATION
ORGANISATION MONDIALE DU COMMERCE
ORGANIZACIÓN MUNDIAL DEL COMERCIOIP/N/1/CHN/P/1
8 July 2002
(02-3792)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  English/
anglais/
inglés
MAIN DEDICATED INTELLECTUAL PROPERTY
LAWS AND REGULATIONS NOTIFIED UNDER
ARTICLE 63.2 OF THE AGREEMENT
CHINA
The present document reproduces the text1 of the Regulations on Protection of New Varieties
of Plants, as notified by China under Article 63.2 of the Agreement (see document IP/N/1/CHN/1).
Conseil des aspects des droits de propriétéintellectuelle qui touchent au commerce
PRINCIPALES LOIS ET RÉGLEMENTATIONS CONSACRÉES À LA
PROPRIÉTÉ INTELLECTUELLE NOTIFIÉES AU TITRE
DE L'ARTICLE 63:2 DE L'ACCORD
CHINE
Le présent document contient le texte
1 du Règlement sur la protection des obtentions
végétales, qui a été notifié par la Chine au titre de l'article 63:2 de l'Accord (voir le document
IP/N/1/CHN/1).
Consejo de los Aspectos de los Derechos de PropiedadIntelectual relacionados con el Comercio
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO
CHINA
En el presente documento se reproduce el texto
1 del Reglamento sobre Protección de las
Obtenciones Vegetales, que China ha notificado en virtud de lo dispuesto en el párrafo 2 del
artículo 63 del Acuerdo (véase el documento IP/N/1/CHN/1).
                                                     
1 In English only.  The text in the original language will be available for consultation by interested
Delegations at the WTO Secretariat./En anglais seulemen t.  Les délégations intéressées pourront consulter le
texte, dans sa langue d'origine, au Secrétariat de l'OM C./En inglés solamente.  Las delegaciones interesadas
podrán consultar en la Secretaría de la OMC el texto en su idioma original.IP/N/1/CHN/P/1
Page 2
Decree of the State Council of the People's Republic of China No.213
REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA ON
PROTECTION OF NEW VARIETI ES OF PLANTS ARE HEREBY
PROMULGATED AND SHALL TAKE EFFECT AS OF OCTOBER 1, 1997.
Premier:  Li Peng
March 20, 1997
 (Promulgated by Decree No. 213 of the State Council of the People's Republic of China on March 20,
1997, and effective as of October 1, 1997)
Chapter I
General Provisions
    Article 1  These Regulations are formulated for the purposes of protecting the rights in new
varieties of plants, encouraging the breeding and use of new varieties of plants, and promoting the
development of agriculture and forestry.
    Article 2   As used in these Regulations, the term "new varieties of plants means artificially
cultivated plant varieties, or ones developed from discovered wild plants, which possess novelty,distinctness, homogeneousness and stability, and which are duly named.
    Article 3   The agriculture and forestry administration departments under the State Council (both
hereinafter referred to as the examining and approv ing organs) are jointly responsible, in the light of
the division of their functions and duties, for the acceptance and examination of applications for rightsin new varieties of plants, and for granting rights in new varieties of plants (hereinafter referred to as
variety rights) for those new varieties of plants that conform to the provisions of these Regulations.
    Article 4   The people's governments at or above the county level or other relevant departments
shall give awards to units or individuals that have accomplished the breeding of new varieties of
plants that have a bearing on State or public interests, and are of great utility value.
    Article 5  The production, market and popularization of a new variety of plant for which a variety
right has been granted (hereinafter referred to as th e rights-granted variety) are subject to review and
approval in accordance with the provisions of relevant State laws and regulations on seeds.
Chapter II
Content and Ownership of Variety Rights
    Article 6  A unit or an individual that has bred a rights-granted variety enjoys exclusive rights in it.
No unit or individual, without authorization of the ow ner of the variety rights (hereinafter referred toIP/N/1/CHN/P/1
Page 3
as the variety rights owner), shall produce or market for commercial purpose the propagating material
of the rights-granted variety, or repeatedly use for commercial purpose the propagating material of the
rights-granted variety in the production of the propagating material of another variety, unless as
otherwise provided for in these Regulations.
    Article 7  For employment related breeding that is accomplished in execution of tasks of a unit or
for the entity to which he belongs, or by primarily using material resources of a unit, the application
right for a new variety of plant belongs to the unit; for non-employment related breeding, the
application right for a new variety of plant belongs to the individual who has accomplished the
breeding. After the application is approved, the variety rights shall belong to the applicant.
    For a commissioned breeding or jointly-conducted breeding, the ownership of variety rights shall
be agreed upon by the parties in a contract; in the absence of a contractual agreement thereon, thevariety rights shall belong to the units or individuals commissioned to accomplish or jointly
accomplish the breeding.
    Article 8  One new variety of plant shall be granted only one set of variety rights. If two or more
applicants apply separately for variety rights on the same new variety of plant, the variety rights shallbe granted to the person who applied first; if applying simultaneously, the variety rights shall be
granted to the person who first bred the new variety of plant.
    Article 9  The application right for a new variety of plant and the variety rights may be assigned
according to law.    If a Chinese unit or individual is to assign to a foreigner the application right or the variety rights
with respect to a new variety of plant bred by it or him in China, it shall be approved by the
examining and approving organs.
    If a State-owned unit is to assign the application right or the variety rights at home, the matter shall,
in accordance with the relevant provisions of th e State, be reported to the relevant competent
administrative departments for approval.
    If the application right or variety right is assigned, the parties shall conclude a written contract, and
register it with the examining and approving organs which shall make a public announcement.
    Article 10  Exploitation of a rights-granted variety under the following circumstances is allowed
with no need for permission from or remuneration to the variety rights owner. However, the other
rights enjoyed by the variety rights owner under these Regulations shall by no means be prejudiced:    (1) exploitation of the rights-granted variety for breeding and other scientific research activities;
    (2) self-exploitation or self-propagation by fa rmers of propagating materials of the rights-granted
variety.
    Article 11  Where the national interest or public interest so requires, the examining and approving
organs may make a decision on a compulsory license to exploit new varieties of plants, which shall be
registered and publicly announced.
    Any unit or individual that is granted a compulsory license for exploitation shall pay the variety
rights owner a reasonable exploitation fee and the amount thereof shall be decided through
consultation of both parties. Where the parties fail to reach an agreement, the examining and
approving organs shall make a ruling.
    A variety rights owner not satisfied with the decision on a compulsory license nor with the ruling
concerning the exploitation fee may bring a lawsuit before a people's court within three months from
the date of receiving notice.
    Article 12  Whether or not the period of the protection of a rights-granted variety has expired, its
registered denomination must be used when marketing the said rights-granted variety.IP/N/1/CHN/P/1
Page 4
Chapter III
Conditions for Granting Variety Rights
    Article l3  In applying for a variety right, a new variety of plant shall belong to a botanical genera
and species in the national catalogue of protected plant varieties. The catalogue of protected plantvarieties shall be determined and announced by the examining and approving organs.
    Article 14  A new variety of plant to be granted variety rights shall possess the characteristic of
novelty. "Novelty" means that the propagating material of the new variety of plant for which variety
protection is applied have not been marketed prior to the application date, or the propagating material
of the variety have not been marketed with the agr eement of the breeder within the territory of China
for longer than one year; the propagating material of vines, forest trees, fruit trees and ornamentaltrees shall not have been marketed outside the territory of China for six years, or the propagating
material of other plant varieties for longer than four years.
    Article 15  A new variety of plant to be granted variety rights shall possess the characteristic of
distinctness. "Distinctness" means that the new variety of plant for which variety protection is appliedshall be clearly distinguishable from any other plant variety the existence of which is a matter of
common knowledge at the time the application is filed.
    Article 16  A new variety of plant to be granted variety rights shall possess the characteristic of
homogeneousness. "Homogeneousness Consistency" means that the new variety of plant for whichvariety protection is applied shall be homogeneous, ex cept for variation that may be expected, in its
relevant characteristics or identity after propagation.
    Article l7  A new variety of plant to be granted variety rights shall possess the characteristic of
stability. "Stability" means that the new variety of plant for which variety protection is applied shallremain true to its relevant characteristics or identity after repeated propagation or at the end of a
particular cycle of propagation.
    Article 18  A new variety of plant to be granted variety rights shall possess a proper denomination,
which shall be distinguishable from that of any other already known variety of the same or closely
related botanical genera or species. The denomination, upon registration, shall be the generic
designation of the said new variety of plant.    The following denominations shall not be used for designating a variety:
    (1) consisting solely of figures;
    (2) violating social morals;
    (3) liable to mislead the characteristics or identity of the new variety of plant, or the identity of the
breeder.
Chapter IV
Application for Variety Rights and Acceptance Thereof
    Article l9  A Chinese unit or individual that intends to apply for variety rights may file an
application with the examining and approving organs directly or by entrust of an agency.
    Where the new variety of plant for which a variety right is applied by a Chinese unit or individual
involves State security or its major interests and therefore needs to be kept confidential, it shall be
handled in accordance with the relevant provisions of the State.
    Article 20  If a foreigner, foreign enterprise or any other foreign organization files an application
for variety rights in China, it shall be handled in accordance with the agreement concluded between
the country to which the applicant belongs and the People's Republic of China, or the internationalIP/N/1/CHN/P/1
Page 5
treaty to which both countries have acceded, or handled according to these Regulations on the basis of
the principle of reciprocity.
    Article 21  When applying for a variety right, a written application and a specification conforming
to the prescribed format and requirements as well as a photograph of the variety shall be submitted tothe examining and approving organs.
    The application documents shall be written in Chinese.
    Article 22  The date on which the examining and approving organs receive the variety rights
application documents shall be the filing date of the application. Where the application documents are
sent by mail, the postmark date shall be the filing date of the application.
    Article 23   An applicant who, within twelve months  from the date on which an application for a
variety right was first filed in a foreign country, files an application for a variety right in China for the
same new variety of plant, may, in accordance with  the agreement concluded between the said foreign
country and the People's Republic of China or the international treaty to which both countries have
acceded, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right ofpriority.
    Any applicant who claims the right of priority shall make a written declaration when the application
is filed, and submit, within three months, a copy of the variety right application documents that were
first filed, and confirmed by the original receiving authority; if the applicant fails to make the written
declaration or fails to submit a copy of the variety right application documents in accordance theprovisions of these Regulations, the claim to the right of priority shall be deemed not to have been
made.
    Article 24  Where an application for a variety right conforms to the provisions of Article 2l of these
Regulations, the examining and approving organs shall accept it, establish the date of filing, assign afiling number and notify the applicant within one month from the date of receiving the application to
pay the application fee.
    Where an application for a variety right does not, or after being revised still does not, conform to
the provisions of Article 2l of these Regulations, the examining and approving organs shall not accept
it and shall notify the applicant accordingly.
    Article 25  An applicant may amend or withdraw the application for a variety right at any time
before the variety right is granted.
    Article 26  Where a Chinese unit or individual intends to file an application in a foreign country for
a variety right on a new variety of plant bred in China, registration shall be made with the examining
and approving organs.
Chapter V
Examination and Approval of Variety Rights
    Article 27  After an applicant has paid an application fee, the examining and approving organs shall
carry out a preliminary examination of the followin g contents of an application for a variety right:
    (1) whether the variety falls into the category of botanical genus or species included in the
catalogue of protected plant varieties;
    (2) whether it conforms to the provisions of Article 20 of these Regulations;
    (3) whether it conforms to the provisions on novelty;    (4) whether the denomination of the new variety of plant is appropriate.
    Article 28  The examining and approving organs shall complete the preliminary examination within
six months from the date of accepting an applicatio n for a variety right. Where the application for aIP/N/1/CHN/P/1
Page 6
variety right is found to meet the requirements, the examining and approving organs shall publicly
announce it and notify the applicant to pay an examination fee within three months.
    Where the application for a variety right is found not to meet the requirements upon the preliminary
examination, the examining and approving organs sh all notify the applicant to state views or make
revisions within three months; where no response is made within the time limit or, after revisions aremade it is still inconformity with the requirements, the application shall be rejected.
    Article 29  After an applicant has paid the examinatio n fee as provided for, the examining and
approving organs shall carry out substantive examination of the characteristics of distinctness,
homogeneousness and stability of the variety for which a variety right is applied.
    Where the applicant has not paid the examinati on fee as provided for, the application for a variety
right shall be deemed to be withdrawn.
    Article 30  The examining and approving organs shall carry out substantive examination primarily
on the basis of application documents and other relevant written materials. The examining and
approving organs may, if they deem it necessary, authorize a designated testing institution to test or
inspect the results of planting or other experiments that have already been carried out.    For the purpose of examination, the applicant shall, at the request of the examining and approving
organs, furnish necessary information and propagating material of the new variety of plant.
    Article 31  Where the application for a variety right is found in substantive examination to be in
conformity with the provisions of these Regulations, the examining and approving organs shall makea decision granting variety rights, issue a new variety rights certificate, and have it registered and
announced.
    Where the application for variety rights is found not to be in conformity with the provisions of
these Regulations, the examining and approving organs shall reject the application and notify the
applicant.
    Article 32  The examining and approving organs shall set up a Reexamination Board for New
Varieties of Plants.
    An applicant, if not satisfied with the decision of the examining and approving organs rejecting the
application, may request the Reexamination Board for New Varieties of Plants to make a
reexamination within three months from the date of receiving the notice. The Reexamination Board
for New Varieties of Plants shall, within six months from the date of receiving the request forreexamination, make a decision and notify the applicant.
    An applicant, if not satisfied with the reexamination decision of the Reexamination Board for New
Varieties of Plants, may bring a law suit before the people's court within fifteen days from the date of
receiving the notice.
    Article 33  After the variety rights have been granted, the variety rights owner is entitled to claim
compensation for the period beginning on the date on which an acceptable application was announced
on preliminary examination and ending on the date of grant of variety rights, from units which, and
persons who, have produced or sold the propagating material of the said rights-granted variety for
commercial purpose without authorization of the applicant.
Chapter VI
Period, Termination and Invalidation
    Article 34  The period of protection of variety rights shall be twenty years for vines, forest trees,
fruit trees and ornamental trees and fifteen years for other plants, computing from the date on which
the rights are granted.IP/N/1/CHN/P/1
Page 7
    Article 35  The variety rights owner shall pay an annual  fee beginning with the year in which the
variety rights are granted, and shall furnish propagating material of the rights-granted variety for the
purpose of testing as required by the examining and approving organs.
    Article 36  Variety rights shall be terminated prior to the expiration of the period of protection in
any of the following cases:
    (1) where the variety right owner renounces the variety right by a written declaration;
    (2) where the variety right owner fails to pay the annual fee as provided for;
    (3) where the variety right owner fails to furnish, as requested by the examining and approving
organs, propagating material of the rights-granted variety needed for testing;
    (4) where, upon testing, the rights-granted variet y is found to be no longer in conformity with the
characteristics and identity that existed when the variety rights were granted.    The termination of a variety right shall be registered and publicly announced by the examining and
approving organs.
    Article 37  From the date of announcement of the grant of a variety right by examining and
approving organs, the Reexamination Board for New Varieties of Plants may, in the light of itsfunctions and powers or on the basis of a written request made by a unit or an individual, declare a
variety right null and void where it is not in conformity with the provisions of Articles 14, 15, 16 and
17 of these Regulations, or change the denomination of any variety that is not in conformity with the
provisions of Article 18 of these Regulations. The decision to declare variety rights null and void and
the decision to change the denomination shall be registered and publicly announced by the examiningand approving organs and the parties shall be given a notice.
    If not satisfied with the decision of the Re-examination Board for New Varieties of Plants, a law
suit may be brought before a people's court within three months from the date of receiving the notice.
    Article 38  A variety right that has been declared null and void shall be deemed to be void from the
beginning.
    A decision declaring a variety right null and void shall have no retroactive effect on any judgment
or order on infringement of a new variety of plant which has already been pronounced and enforced
by the people's court, on any decision concerning the handling of infringement of a new variety of
plant which has already been made and enforced by the agriculture and forestry administration
departments of the people's governments at or above the provincial level, and on any contract of
license for exploitation of a new variety of plant and any contract of assignment of the right of a newvariety of plant which has been performed, prior to the declaration. However, damage caused to any
other person in bad faith by the variety right owner shall be reasonably compensated.
    If, in accordance with the provisions of the preceding paragraph, the fee for the exploitation of a
new variety of plant or the fee for the assignment of  a variety right is not repaid by the variety right
owner or the assignor of the variety right to the licensee or the assignee, which is obviously contraryto the principle of fairness, the variety rights owner or the assignor of the variety right shall repay in
whole or part the fee for the exploitation of the variety or the fee for assignment of the variety right to
the licensee or the assignee.
Chapter VII
Penalty Provisions
    Article 39  Where the propagating material of a rights-granted variety is produced or marketed for
commercial purpose without the authorization of the variety right owner, the variety right owner or
other interested party may request the agriculture and forestry administration departments of thepeople's governments at or above the provincial level to handle it in accordance with their respective
functions and powers, or directly bring a law suit before a people's court.
    The agriculture and forestry administration departments of the people's governments at or above the
provincial level may, in the light of their respective functions and powers and on the basis of theIP/N/1/CHN/P/1
Page 8
principle of free will of the parties, mediate the compensation for damage resulting from the
infringement. Where an accord is reached through mediation, it shall be executed by the parties;
where no accord is reached through mediation, the va riety right owner or other interested party may
bring a law suit before a people's court according to the civil procedures.
    In handling cases of infringement of variety right in the light of their respective functions and
powers, the agriculture and forestry administration departments of the people's governments at or
above the provincial level may, for the purpose of safeguarding the public interests of society, order
the infringer to stop the infringing act, confiscate the illegal gains and may concurrently impose a fine
of not more than five times the illegal gains.
    Article 40  Where a new variety of plant is counterfeited, the agriculture and forestry administration
departments of the people's governments at or above the county level shall enjoin the counterfeitingact, confiscate the illegal gains and the propagating material of the plant variety, and concurrently
impose a fine of not less than one but not more than five times the illegal gains, where the
circumstances are so serious as to constitute a crime,  criminal liability shall be investigated according
to law.
    Article 41   Both the agriculture and forestry administration departments of the people's
governments at or above the provincial level investigating and handling cases of infringement of
variety right in the light of their respective functions and powers, and the agriculture and forestry
administration departments of the people's governments at or above the county level investigating and
handling cases concerning counterfeited rights-granted variety in the light of their respective functionsand powers, may, as necessary, seal or seize propagating material of the plant variety relating to the
case, and have access to make copies of and seal up contracts, account books and other relevant
documents relating to the case.
    Article 42  Where a rights-granted variety is sold without using its registered denomination, the
agriculture and forestry administration departments of the people's governments at or above the
county level shall, in the light of their respective functions and powers, order to make corrections
within a specified time limit, and may impose a fine not more than 1,000 yuan.
    Article 43  Where disputes arise as to the ownership of the application right and variety right of a
new variety of plant, the parties may bring a law suit before a people's court.
    Article 44  Any staff member of the agriculture and forestry administration departments of the
people's governments at or above the county level and of other departments who abuses his power,
neglects his duty, commits illegality for personal interest or by fraudulent means, or seeks or accepts
bribes shall be investigated for criminal liability according to law if a crime is constituted;
administrative sanctions shall be given according to law if no crime is constituted.
Chapter VIII
Supplementary Provisions
    Article 45  The examining and approving organs may formulate responsive provisions on the
requirements of novelty for genera or species first included in the catalogue of protected plant
varieties before the effectiveness of these Regulatio ns and for genus or species newly included in the
catalogue of protected plant varieties after the effectiveness of these Regulations.
    Article 46  These Regulations shall take effect as of October 1, 1997.
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