China writes a new chapter in its system of Plant Variety Protection (PVP) by revising its Seed Law (December 24), that will come into force on March 1, 2022. The law, inter alia, tackles the Government's goals as to the PVP improvement, promotion of plant breeding and plant research, and incentivizing innovation.
The law contains a number of important improvements to Plant Breeders' Rights.
In addition to propagating material, the scope of the right will now also include harvested material. This will apply where harvested material is obtained from unauthorized use of propagating material and where the breeder has not had a reasonable opportunity to exercise their right in respect of that propagating material. This provision is in line with the 1991 Act of the UPOV Convention.
Previously, only production and sale of propagating material was reserved for the breeder. The revised law extends the rights of breeders to include the offering for sale, import and export, and storage for these purposes. The law also clarifies that the breeder may license his right to third parties and collect royalties.
One of the most significant improvements in the revised law is the introduction of the protection of Essentially Derived Varieties (EDV). As provided in UPOV 1991, the commercialization of an EDV shall require the consent of the IP right holder of the initial Variety. An EDV shall be:
predominantly derived from the Initial Variety or a variety which itself is predominantly derived from the Initial Variety,
clearly distinguishable from the Initial Variety, and
except for the differences which result from the act of derivation, conform to the Initial Variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.
With these improvements, China has met some of CIOPORA's requests, which the breeders' association has been advocating for in the past two decades.
With the new Seed Law, China's Plant Variety Protection seems to be on the right track towards creating a more innovation-friendly environment in horticulture. It remains to be seen whether enforcement of Plant Breeders' Rights, which presents the biggest challenge to breeders in the country, can be consequently improved.
The protection of Intellectual Property for plants in China will be one of the focal points at CIOPORA's AGM 2022 in Cologne. The April 27 Symposium on Intellectual Property Protection and Enforcement will be open to the public. Members and guests are invited to register for in-person meetings (online tickets coming soon!): https://www.ciopora.org/ciopora-agm-2022.
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