Read more on plant breeder’s rights at IP Australia's main plant breeder’s rights page.
Plant breeder's rights – also known as plant variety rights - are used to protect new varieties of plants that are distinctive, uniform and stable, and have not been exploited, or only recently exploited.
Plant breeder’s rights are territorial rights, meaning an Australian plant breeder’s right only provides protection in Australia. In order to protect your plant varieties in China, you need to register these rights in China.
China and Australia both belong to the International Union for the Protection of New Varieties of Plants (UPOV). China is a signatory to UPOV 1978 convention, while Australia is signatory to the UPOV 1991 convention. There are a number of differences between the two, for example, UPOV 1991 requires all genera and species to be protected, while UPOV 1978 does not. Another difference is that under UPOV 1978 the plant breeder’s right does not cover harvested material, but under UPOV 1991, the right extends to harvested material in certain circumstances.
In China, the Ministry of Agriculture and Rural Affairs is responsible for registration of agricultural plants, and the State Forestry Administration is responsible for registration of forestry plants. These authorities both examine and approve applications. In most cases, you will need to demonstrate the distinctness, uniformity and stability (DUS) of the new plant variety through a field trial.
Only eligible new or recently exploited varieties can be registered. Similar to Australia, China provides a grace period of 12 months for sales and popularisation of a variety within China by the breeder or with their consent, and a grace period of four years for a variety sold or popularised outside of China (or six years for vines, forest trees, fruit trees and ornamental trees). After this period expires, you will be unable to obtain a plant variety right in China.
In China, only a limited list of genera and species are eligible for plant variety protection. The Ministry of Agriculture and Rural Affairs has 11 lists covering 191 genera and species, while the State Forestry Administration has 6 lists covering 206 genera and species.
While not all genera or species are covered, the lists do cover many varieties important for Australian plant breeders, including wheat (Triticum aestivum), barley (Hordeum), potatoes (Solanum tuberosum), rice (Oryza sativa), maize (Zea mays), soybean (Glycine max), various brassicas, apple (Malus), peach (Prunus persica), apricot (Prunus armeniaca), nectarine (Prunus persica var. nucipersica), raspberry and blackberry (Rubus), strawberry (Fragaria ananassa), blueberry (Vaccinium), sweet cherry (Prunus avium), mango (Mangifera indica), grapevines (Vitis), citrus (Citrus), Japanese plum (Prunus salicina), Rhododendron, and roses (Rosa).
We have compiled these lists as of November2019 here: List of Protected New Variety of Forestry Plants of PRC, List of Protected New Varieties of Agriculture Plants of PRC. If your variety is not one of the listed genera or species, then it was not eligible for protection in China as of November 2019. Further lists may be issued in future.
Scope of protection
China provides 15 years protection for most agricultural varieties, and 20 years protection for vines, trees and ornamentals. In contrast, Australia provides 20 years protection for most plant species and 25 years for vines and trees.
Unlike Australia, China does not provide protection for essentially derived varieties. Nor does China provide protection against certain acts, including import and export. Further, the scope of the right in China does not cover harvested material.
China provides a farmer’s exemption for nongmin (peasant/subsistence farmers). Nongmin may propagate protected plant varieties for their own use without seeking permission from or paying royalties to the rights holder. The exemption applies only to nongmin and not to commercial farming operations.
Rights owners may take administrative enforcement actions by requesting local agriculture or forestry offices to investigate cases of infringement. Rights owners may also file civil infringement actions with the relevant Chinese courts.
In recent years, there have been a number of court cases where plant breeders won significant damages for infringement of their plant variety rights. For example, in 2018 the Henan High People’s Court awarded damages of 49.5 million RMB (AUD 10.3 million) for infringement of a corn plant variety right.
Please contact us at MDB-IPCounsellor-China@ipaustralia.gov.au if you would like further information on plant variety rights in China.