中华人民共和国植物新品种保护条例 REGULATIONS OF THE PEOPLES REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF

国务院令第213号
（Promulgated by Decree No. 213 of the State Council of the People's Republic of China on March 20，1997）
颁布日期：19970320 　实施日期：19971001 　颁布单位：国务院

　　Chapter I GENERAL PROVISIONS

　　Article 1 These Regulations are enacted to protect the rights in new varieties of plants， to encourage the breeding and use of new varieties of plants， and to promote the development of agriculture and forestry.

　　Article 2 The new variety of plant referred to in these Regulations， means a cultivated variety， or a developed one based on a discovered wild plant， which possesses novelty， distinctness， uniformity and stability， and which is designated by an adequate denomination.

　　Article 3 The administrative departments of agriculture and forestry under the State Council（hereinafter referred generally to as the “examining and approving authorities”） are jointly responsible， according to the division of their responsibilities， for the receipt and examination of application for rights in new varieties of plants（hereinafter referred to as “variety rights”）， and for the grant of variety rights for those that conform to the provisions of these Regulations.

　　Article 4 Any entity which or any person who has accomplished the breeding of a new variety that has a bearing on the national interests or the public interests， and is of great value for use， he or it shall be rewarded by the People's Governments above county level or the relevant departments under them.

　　Article 5 The production， sale and dissemination of a new variety for which a variety right has been granted （hereinafter referred to ad the “protected variety”） is subject to review and approval in accordance with the provisions of relevant laws and regulations on seeds.

　　CHAPTER II CONTENT AND OWNERSHIP OF VARIETY RIGHTS

　　Article 6 The entity which or the person who has accomplished the breeding enjoys an exclusive right on his or its protected variety. Except otherwise provided in these Regulations， no other entities or persons shall， without the authorization of the owner of the variety right （hereinafter referred to as the “variety right owner”）， produce or sell for commercial purposes the propagating material of the said protected variety， or use repeatedly for commercial purposes the propagating material of the said protected variety in the production of the propagating material of another variety.

　　Article 7 For service breeding accomplished by any person in execution of the tasks of the entity to which he belongs， or mainly by using the facilities of that entity， the right to apply for a variety right shall belong to the entity in question； for non-service breeding， the right to apply for such a variety right shall belong to the person accomplishing the breeding. Upon approval of the application， the variety right shall belong to the applicant.

　　For commissioned breeding or jointly conducted breeding， the ownership of the variety right shall be agreed upon by the parties concerned in a contract； lacking of such a contract， the variety right shall belong to the entity which or person who commissioned to conduct or jointly conducted the breeding.

　　Article 8 One new variety shall be granted only one set of variety right. Where two or more applicants apply separately for the variety right for the same new variety ， the variety right shall be granted to the person whose application file first； in the case of simultaneous applications， the variety right shall be granted to the person who has first accomplished the breeding.

　　Article 9 The right to apply for a variety right and the variety right in respect of a new variety may be assigned according to the law.

　　Any assignment， by a Chinese entity or person， of the right to apply for a variety right or the variety right of the new variety bred in China， to a foreigner， must by approved by the examining

and approving authorities.

　　Any assignment within China， by a state-owned entity， of the right to apply for variety right or of the variety right， must be submitted in the light of the relevant national provisions for approval by the competent administrative departments concerned.

　　Article 10 Without prejudice to other rights of the variety right owner under these Regulations， the exploitation of the protected variety may not require authorization from， or payment of royalties to， the variety right owner for the following purposes：

　　（a） exploitation of the protected variety for breeding and other scientific research activities；

　　（b） the use by farmers for propagating purposes， on their own holdings， of the propagating material of the protected variety which they have obtained by planting on their own holdings.

　　Article 11 The examining and approving authorities may， in the national interests or the public interests， make decision to grant compulsory licenses to exploit new varieties of plants， which shall be registered and announced.

　　The entity which or the person who is granted a compulsory license for exploitation shall pay to the variety right owner a reasonable exploitation fee， the amount of which shall be fixed by both parties in consultation. Where the parties fail to reach an agreement， the examining and approving authorities shall adjudicate.

　　Where the variety right owner is not satisfied with the decision to grant a compulsory license for exploitation or is not satisfied with the adjudication regarding the fee payable for exploitation， he or it may， within 3 months from the date of receiving the notification， institute legal proceedings in the People's Court.

　　Article 12 Regardless of whether or not the term of protection of the protected variety has expired， the denomination of the protected variety as used in its registration must be used for sales thereof.

　　Chapter III CONDITIONS FOR THE GRANT OF VARIETY RIGHTS

　　Article 13 The new variety for which a variety right has been applied for shall be under the plant genera and species included in the national list of protected plant genera and species. This list of protected plant genera and species shall be determined and announced by the examining and approving authorities.

　　Article 14 Any variety for which a variety right may be granted shall possess novelty. Novelty means that， at the date of filing of the application for a variety right， the propagating material of the new variety has not been sold， or with the authorization of the breeder， within the territory of China， earlier than 1 year before that date； in a territory other than China， earlier than 4 years ， or in the case of vines， forest trees， fruit trees and ornamental plants， earlier than 6 years.

　　Article 15 Any variety for which a variety right may be granted shall possess distinctness. Distinctness means that， the variety for which a variety right is applied for must be clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the application.

　　Article 16 Any variety for which a variety right may be granted shall possess uniformity. Uniformity means that the variety for which a variety right is applied for is sufficiently uniform in its relevant features or characteristics after propagation， subject to variation that may be expected from the particular features of its propagation.

　　Article 17 Any variety for which variety right may be granted shall possess stability. Stability means that the variety for which a variety right is applied for keeps its relevant features or characteristics unchanged after repeated propagation or at the end of a particular cycle of propagation.

　　Article 18 Any variety for which variety right may be granted shall have an adequate denomination， which shall be distinguish able from that for a

ny other known variety of the same or similar plant genera or species. The denomination， after its registration， shall be the generic designation of the new variety in question.

　　The following shall be avoided in the selection of a denomination for a new variety：

　　（a） those consisting of only numbers；

　　（b） those violating social morals；

　　（c） those that are liable to mislead or to cause confusion concerning the features or characteristics of the new variety， or identity of the breeder.

　　Chapter IV APPLICATION FOR VARIETY RIGHTS AND RECEIPT THEREOF

　　Article 19 Where any Chinese entity or person applies for a variety right， he or it may file an application with the examination and approving authorities directly or through an agency commissioned for the purpose.

　　Where the new variety for which a Chinese entity and person applies for a variety right involves security or other vital interests of the state and therefore requires to be kept confidential， it shall be dealt with in accordance with the relevant prescriptions of the state.

　　Article 20 Where any foreigner ，foreign enterprise or any other foreign institution files an application for a variety right in China， the application shall be under these Regulations in accordance with any agreement concluded between the country to which the applicant belongs and the People's Republic of China， or in accordance with any international convention to which both countries are party， or on the basis of the principle of reciprocity.

　　Article 21 For the purpose of applying for a variety right， an application， specification and photographs of the variety conforming to the prescribed forms shall be submitted to the examining and approving authorities.

　　The application documents shall be w

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