On the afternoon of 24 December 2021, the 32nd meeting of the Standing Committee of the 13th National People’s Congress concluded in the Great Hall of the People in Beijing. After voting at the meeting on current agricultural legislation, the delegates passed the decision to amend the Seed Law. The new seed law will take effect on 1 March 2022.
In recent years, various regions have intensified the law enforcement in the seed industry, but the phenomenon of seed infringement such as counterfeiting and arbitrage is still frequent, while the collection of evidence for the protection of rights is difficult. Seeds are an important basis for ensuring national food security and the effective supply of important crops, and there is still a big gap of seed sources between China and developed countries in terms of quantity and quality. Seed infringement occurs frequently, and the legitimate rights and interests of farmers could not be effectively protected, which may even cause potential risk to food security. The decline in the types and quantities of domestic germplasm resources is obvious, and the loss of some excellent germplasm resources of forests and grasses occurs from time to time through trade, scientific research, cooperation and other channels.
The new amendment to the Seed Law focuses on strengthening protections for new plant varieties. In this respect, the amendment makes three key changes. First, consistent with UPOV ’91*, it expands the scope of protection to include the “harvested material” of a protected plant variety, in addition to its “propagating material”. The amendment also grants protections for a protected variety in additional stages of commercialization: from production, propagation, and sale, to offering for sale, export, import, and storage.
Second, the amendment introduces the concept of “essentially derived varieties” (EDVs) under UPOV ’91. It defines the term essentially in the same way as UPOV ’91: an EDV is one that is “predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety”; is “clearly distinguishable from the initial variety”; and “except for the differences resulting from the act of derivation, conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety”. An EDV regime would expand the scope of the so-called breeder’s right because commercialization of an EDV requires authorization of the rightsholder of the initial variety. The amendment authorizes the State Council to prescribe the steps and measures for implementing the EDV regime, the State Council will do so when it amends the Regulations on the Protection of New Plant Varieties.
Third, the amendment increases the damages for infringement of the breeder’s right. Willful infringement with “serious circumstances” may lead to up to quintuple punitive damages. The amendment, moreover, raises the maximum statutory damages to RMB 5 million, from 3 million. [1]
The new Seed Law will escort the development of China’s seed industry in the following aspects: the new law protects the rights of new plant varieties in the whole chain from the production of propagating materials to harvested materials, which can solve more practical problems in seed infringement, so as to better protect the legitimate rights and interests of right holders. Seed intellectual property rights will be better protected and truly and effectively stimulate the original innovation of the seed industry, while the law facilitates the activation of international cooperation in science and technology in the seed industry and the introduction of the latest excellent varieties from abroad. Further intensifying the crackdown on fake and inferior seeds in the production and operation of seeds is conducive to protecting the interests of the people and safeguarding the healthy and safe development of the seed market. Further strengthening the conservation of germplasm resources from a legal perspective will provide a better germplasm basis for future breeding innovations, and even have important implications for global biodiversity.
References:
- [1] NPCSC Enacts Legislation to Improve Plant Variety Protections, Curb Noise Pollution, Protect Wetlands & Strengthen Legislative Oversight of the Economy. In: NPC Observer, (accessed 04 January 2022).
- [2] 全国人民代表大会常务委员会,全国人民代表大会常务委员会关于修改《中华人民共和国种子法》的决定., (accessed 24 December 2021).
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*China has only acceded to the 1978 Act of the Convention.
