Key words civil/infringement of new plant variety rights/scope of protection/propagation materials/harvested materials
Referee Points
1. The propagation material of the authorized variety is the scope of protection of the new plant variety right and the basis for the variety right holder to exercise the exclusive right. The scope of protection of an authorized variety is not limited to the propagation material obtained in a specific way when applying for the variety right. Even if it is different from the propagation material commonly used by breeders at the stage of granting the new plant variety right, other plant materials can be used for the propagation material of the authorized variety. It should be included in the scope of protection of new plant variety rights.
2. For the plant material to be recognized as the propagation material of a certain authorized variety, the following requirements must be met at the same time: it is a living body, has the ability to reproduce, and the new individual reproduced has the same characteristics as the authorized variety. Plant materials that can only be used as harvesting materials but not as propagating materials do not fall within the scope of protection of new plant variety rights.
Relevant laws
Article 28 of the Seed Law of the People's Republic of China
Article 6 of the Regulations of the People's Republic of China on the Protection of New Varieties of Plants
basic case
Cai Xinguang applied for the new plant variety right of "Sanhong Honey Pomelo" on November 10, 2009, and was authorized on January 1, 2014. The variety right number is CNA20090677.9, and the protection period is 20 years. The "On-Site Investigation Report on the DUS Test of New Agricultural Plant Varieties" issued by the Plant New Variety Protection Office of the Ministry of Agriculture and Rural Affairs stated that the tentative name of the variety is Sanhong Honey Pomelo, the plant species is Citrus, and the variety type is asexual reproduction. The field investigation results stated that, The color of the white cortex of the applicant variety is pink, and the color of the similar variety is white, which is specific. The conclusion of the investigation is that the application variety has specificity and consistency. The attached photos show that the surface color of Sanhong honey pomelo is dark red, the white skin is pink, and the pulp is purple. The above facts include "Certificate of New Plant Variety Right", annual fee payment receipt for new plant variety right, "Statement of Opinion", "Request for Variety Right Application", "Instruction Manual", "Report for Change of Bibliographic Items", "DUS Test Site for New Variety of Agricultural Plants" The investigation report” and other evidences are corroborated.
Cai Xinguang filed a lawsuit with the Guangzhou Intellectual Property Court on March 23, 2018, arguing that Guangzhou Runping Commercial Co., Ltd. (hereinafter referred to as Runping Company) continuously sold a large number of "Sanhong Honey Pomelo" fruits, infringing the name of the variety it obtained. New plant variety rights of "Sanhong Honey Pomelo".
Runping Company argued that the allegedly infringing honey pomelo fruit it sold had a legal source, and provided Party A Kunshan Runhua Commercial Co., Ltd. Guangzhou Huangpu Branch (hereinafter referred to as Runhua Huangpu Company) and Party B Jiangshan Sennan Food Co., Ltd. ( hereinafter referred to as the contract signed by Sennan Company), Runhua Huangpu Company and Sennan Company signed the 2017 commercial cooperation terms on July 18, 2017. , the two parties have cooperated with 6 stores, including Runping Company. On January 8, 2018, Sennan Company issued an invoice to Runhua Huangpu Company and sold goods or provided taxable labor and service lists. The list stated that the goods included 650 kilograms of Sanhong Honey Pomelo. The copy of the business license of Sennan Company states that Sennan Company is a limited liability company established on February 22, 2013 with a registered capital of 5 million yuan. Its business scope covers the wholesale and retail of prepackaged food and the sale of fruits and vegetables. The "Food Business License" of Sennan Company states that the business items are sales of pre-packaged food and sales of bulk food. This permit is valid until August 10, 2021.
referee result
The Guangzhou Intellectual Property Court made a civil judgment (2018) Yue 73 Min Chu No. 732 on January 3, 2019, rejecting Cai Xinguang's claim. After the verdict was pronounced, Cai Xinguang refused to accept it and appealed to the Supreme People's Court. On December 10, 2019, the Supreme People's Court issued the (2019) Supreme Court Zhimin Zhong No. 14 Civil Judgment, rejecting the appeal and affirming the original judgment.
Referee reason
The Supreme People's Court held that: the main issue in dispute in this case was whether Runping Company's sale of the allegedly infringing honey pomelo fruit constituted an infringement of Cai Xinguang's new variety rights of Sanhong honey pomelo plants. The scope of protection is the focus of this case.
In this case, although Cai Xinguang submitted the branch of the propagation material obtained by grafting when applying for the new variety right of Sanhong honey pomelo plant, it does not mean that the scope of protection of the new variety right of Sanhong honey pomelo plant only includes grafting. The propagating material obtained and the branches obtained in other ways also belong to the propagating material of the variety. With the development of science and technology, plants that are different from the propagation materials at the stage of authorization of new plant variety rights may also become the planting materials selected by breeders, that is, planting materials other than branches may also be commonly used by breeders. Under this circumstance, the planting material, as the propagation material of the authorized variety, shall be included in the protection scope of the new plant variety right. The original judgment held that the breeding method of infringing propagating materials should correspond to the materials and breeding methods used in the breeding of the variety. The rights that right holders should enjoy in the process of applying for new variety rights are out of balance. This determination takes the breeding method at the time of application for the new plant variety right as the basis for the protection of the authorized variety, which limits the protection scope of the new plant variety right and narrows the legitimate rights and interests of the new plant variety right holder, and should be corrected.
Relevant laws, administrative regulations and rules of our country list the propagating materials, but there is no clear regulation on how to determine which parts of the plant are propagating materials for a specific variety. To determine whether it is the propagation material of a certain authorized variety, the following conditions must be met biologically: it is a living body, has the ability to reproduce, and the new individuals produced by the breeding have the same characteristics as the authorized variety. Whether the fruit of the allegedly infringing pomelo is the propagation material of the Sanhong pomelo variety requires not only judging whether the fruit has the ability to reproduce, but also judging whether the new individuals bred from the fruit have dark red fruit surface and purple or white flesh. If the morphological characteristics of the pink cortex do not have the characteristic characteristics of the authorized variety, it does not belong to the propagation material protected by the Sanhong honey pomelo variety right.
As for whether the fruit of Sanhong pomelo can be used as a propagation material, after review, it is difficult for even specialized scientific research units to breed pomelo seedlings from the seeds of Sanhong pomelo fruit. During the trial of the second instance, the expert assistant invited by Cai Xinguang said that the pomelo has a single embryo and is easy to mutate. The variety is propagated through branches, buds, rootstocks or divisions. sex. Based on the specific situation of the variety in this case, the grains and juice sacs of the allegedly infringing pomelo fruit in this case do not have the ability to reproduce the authorized variety Sanhong honey pomelo, and do not belong to the breeding materials of the Sanhong honey pomelo variety. The allegedly infringing honey pomelo fruit is harvest material rather than propagation material, which does not fall within the scope of protection of new plant variety rights. If the harvested materials are included in the scope of protection of new plant variety rights in this case, it violates the Seed Law, the Regulations on the Protection of New Plant Varieties, and the Several Provisions of the Supreme People's Court Concerning the Specific Application of Legal Issues in the Trial of Cases of Infringement of New Plant Variety Rights Regulations.
In addition, different parts of the plant may have different uses, such as production for propagation purposes, direct consumption or ornamental use, and the same plant material may be both propagation material and harvest material. For plants that can be used as both propagating and harvesting materials, whether they can be identified as propagating materials in infringement disputes should examine the true intention of the seller to sell the accused infringing plants, that is, the intention is to use the materials as propagating materials. Whether the material is sold or sold as harvested material; if the user argues that it is a use behavior rather than a production behavior, the actual use behavior of the user should be examined, that is, whether the harvested material is directly used for consumption or used for breeding authorized varieties.
To sum up, Cai Xinguang's appeal that the alleged infringing honey pomelo fruit is the propagation material of Sanhong honey pomelo and that Runping's sales behavior constituted infringement cannot be established and should be rejected.
(Effective referee judges: Zhou Xiang, Luo Xia, Jiao Yan)