Recently, the Supreme People's Court (SPC) issued a case involving objections to jurisdiction over an infringement of new plant varieties, clarifying that "the people's court should conduct a preliminary examination of the legal and factual basis which relates to the jurisdiction over the case and on which the plaintiff claimed the rights, rather than simply rejecting the parties' objections to jurisdiction on the grounds that whether the alleged conduct is established requires a substantive trial to determine it."

The plaintiff in the first instance was a co-owner of the right to a new corn variety "M54", the defendant No.1 carried out the act of breeding "M54", using "M54" as a parent to breed "Denghai 939" and selling the same, and the defendant No. 2 sold propagating materials of "Denghai 939". The plaintiff filed a lawsuit against the above-mentioned infringement in the domicile of the defendant No. 2 who sold "Denghai 939", and the defendant No. 1 raised an objection to jurisdiction. The first instance made a ruling to transfer the case to the court of the place where the defendant No. 1 was domiciled; the plaintiff was not satisfied with the ruling and filed an appeal, and the second instance made a final ruling to dismiss the appeal and uphold the original ruling.

In the trial of this case, firstly it was necessary to determine the applicable law. The alleged infringement in this case occurred after January 1, 2016 and before March 1, 2022, so Seed Law amended in 2015 should apply to the trial of this case. According to the relevant provisions of the Seed Law (2015 version), only selling "propagating materials of another variety obtained by reusing the propagating materials of an authorized variety" was not an infringement expressly prohibited by law. Therefore, the defendant No. 2 who only sold "Denghai 939" did not commit an infringement under the Seed Law at that time, and the alleged act of the defendant No. 2 obviously did not constitute an arguable infringement. Moreover, the plaintiff did not claim that the defendant No. 2 and the other defendants constituted joint infringement or aided infringement, so the defendant No. 2 had no substantial connection with the dispute in this case. Therefore, the plaintiff's claim that the defendant No. 2 constituted infringement and suing the defendant No. 2 as a co-defendant to determine the jurisdiction over the case lacked legal basis and factual basis, and the place where the alleged infringement occurred and the domicile of the defendant No. 2 did not constitute a connection point that could determine the jurisdiction over this case.

This case reflects the people's court's attitude towards the act of artificially creating a jurisdictional connection point to circumvent the law. When a plaintiff's relevant claims against a co-defendant based on which the jurisdiction over the case is determined obviously lack a legal basis or factual basis, the people's court shall not use the co-defendant as the jurisdictional connection point to determine the jurisdiction over the case.

Article 28 of the Seed Law is involved in this case. Article 28 of the newly amended Seed Law in 2021 is different from that of the 2015 version, and the two versions of Article 28 are listed here for reference.

Article 28 of the Seed Law amended in 2015:

Article 28 An entity or an individual that has bred a variety enjoys exclusive rights to the authorized variety. No entity or individual may, without the permission of the owner of the right to a new plant variety, produce, propagate or sell the propagating materials of the authorized variety, or reuse for commercial purposes the propagating materials of the authorized variety in the production of the propagating materials of another variety, unless as otherwise provided for by this Law or any relevant law or administrative regulation.

Article 28 of the Seed Law amended in 2021:

Article 28 The owner of the right to a new plant variety that has bred the variety enjoys exclusive rights to the authorized variety. The owner of the new plant variety right may license the new plant variety right to others for implementation, and collect the license fee in accordance with the contract; the license fee can be collected at a fixed price or in the form of a commission from promotion income, etc.

No entity or individual may, without the permission of the owner of the right to a new plant variety, produce, propagate and process for propagation, offer for sale, sell, import, export, or store for implementing the above acts the propagating materials of the authorized variety, or reuse for commercial purposes the propagating materials of the authorized variety in the production of the propagating materials of another variety, unless as otherwise provided for by this Law or any relevant law or administrative regulation.

The implementation of the acts specified in the preceding paragraph involving harvested materials obtained from unauthorized use of the propagating materials of the authorized variety shall be approved by the owner of the new plant variety right, except where the owner of the new plant variety right has a reasonable opportunity to exercise its rights in the propagating materials.

Where any of the acts described in the second and third paragraphs of this Article are carried out on essentially derived varieties, the consent of the owner of the new plant variety right of the original variety shall be obtained.

The implementation steps and measures of essentially derived varieties shall be determined by the State Council.

Details of this case may be found at the following link:

https://ipc.court.gov.cn/zh-cn/news/view-2119.html

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