China: Plant Variety Protection in China - Growing Interest

Last Updated: 25 May 2004

By Matthew Murphy and Kellie Wu, MMLC Group, Beijing

Protection of new plant varieties is still a relatively new area of intellectual property in China, despite the country having one of the richest horticultural cultures in the world. Prior to 1997 (at least in the modern area following the founding of the People’s Republic of China), China did not have any laws or regulations in place allowing for the protection of plant breeders’ rights for their new varieties. The situation changed greatly in October 1997 after the Regulations of the People's Republic of China on the Protection of New Plant Variety (PVP Regulations) were promulgated.

Intelligent plant breeders can do very well out of licensing their plant variety rights, either through royalty-focused licensing regimes to nurseries and growers, or through immediate sale of their registered rights and associated know how to large growers. There has been a dramatic increase in the last six months in foreign companies’ interest in protecting and exploiting their new plant varieties in China – the PRC government has publicly announced on many occasions that it was wanting to focus on increasing the income to the nation’s 700 million farmers and rural dwellers in order to improve life quality – a development involving new plant technology can lead to significant increases in income for all concerned, particularly if exports are involved. Further, China’s low labor costs are no secret, but with the government deciding to phase out the 2000 year old agricultural products tax and provide various incentives to foreigners wishing to invest in the rural areas, China is becoming an extremely attractive venue for breeders and growers the exploitation of their plant variety rights (PVR). Once registered, PVR provide an owner with the exclusive right to grow and sell that new type of plant variety in China.


Following adoption of the PVP Regulations, the National People’s Congress approved China’s accession to the International Convention for the Protection of New Varieties of Plants (the UPOV Convention) on August 29 1998. China officially adopted the UPOV Convention (1978 Version) with effect from April 23 1999. Parties to the UPOV Convention form the Union for the Protection of New Varieties of Plants (the UPOV), which is an inter-governmental organization based in Geneva. Until China’s accession, foreign applicants under the PVP Regulations were generally only successful in obtaining plant variety rights (PVRs) where China had negotiated a bilateral agreement with the foreign applicant’s country. Until China joined the UPOV Convention, rights apparently available under the PVP Regulations were in practice mostly unavailable to foreign entities. With the exception of a brief framework agreement with Italy, China had not put in place formal bilateral arrangements with other countries relating to the mutual protection of new plant varieties. Foreign investors are now able to seriously consider commercializing certain new plant varieties in China.

The new plant variety, according to Article 2 of the PVP Regulations, means a cultivated plant variety, or a developed one based on a discovered wild plant, which is "new, distinct, uniform and stable", and whose denomination is adequately designated – clear standards have been provided in the regulations.

Growing Interest in PVR from Chinese Companies

PVR is a comparatively new thing to Chinese plant variety breeders, but more and more breeders are beginning to realize the value of PVR. Since the promulgation of the PVP Regulations, more domestic companies are applying for PVR in China: in 2003, the New Plant Variety Protection Office of the MOA received 567 applications, almost double that which it received in 2002; the New Plant Variety Protection Office of SFA received 48 applications, as compared to 17 in 2002.

Enforcement options and their benefits of PVR in China

Enforcement of PVR in China is in theory, a relatively straight forward process under the PVP Regulations, its Implementations and the Provisions on the Handling Cases of Infringement of Rights to New Varieties of Agricultural Plants (Infringement Provisions), which came into effect on February 1, 2003.

In case of infringement, a PVR registered owner (or a licensee) has two enforcement options: enforcement handled by the MOA or SFA under the supervision of the PVR registered owner or a licensee, or filing a writ for PVR infringement in the relevant court in China.

Given that the MOA and the SFA are powerful bodies in China in agribusiness, it is likely that in most cases the assistance of the MOA or SFA would be sort initially in a infringement case to carry out a raid of the relevant farms of the infringers (immediate plant confiscation, document confiscation and infringer interrogation – later, the MOA or SFA will impose civil fines on the infringers and may assist in negotiating a compensation payment from the infringers to the PVR owner) and then consideration can be given to filing an action in a court for compensation if necessary and appropriate. Traditionally the courts have not been willing to order Chinese companies to pay significant sums of money for intellectual property infringement, however that is gradually changing.


Quarantine is a complex, time-consuming and often controversial area in China. For plant materials, which are introduced into China for the first time, the requirements for quarantine are strict. It is necessary for quarantine officers to see a complete growth cycle of a plant before it can be allowed to pass quarantine – see the Rules of Approval and Supervision to the Introduced Forestry Seeds, Plant Materials and Other Propagating Materials Quarantine promulgated by the SFA. Thus, it often takes about two or three years for a plant to pass quarantine. Foreign breeders should take care to commence the quarantine process at the same time they commence the PVR registration process, so as not to be disappointed when they get the PVR and then wish to use it in China.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions