In January 2023, the Supreme People's Court (SPC) issued an appeal case in which the SPC, in the absence of industry standards, shifted the burden of proof in a timely manner giving consideration to the laws of corn breeding, and used the presumption of facts to determine the paternity relationship between hybrid corn varieties and parent varieties, and on this basis, the SPC amended the judgment to rule that infringement was established and ordered the infringer to compensate the breeder for economic losses and reasonable expenses
The appellant in this case was the right holder of new corn varieties "T37" and "WH818", and "Caitiannuo No. 6" is a corn variety selectively bred by using "T37" and "WH818" as its father plant and mother plant respectively. The appellee was a producer and seller of seeds of “Caitiannuo 866". The appellant claimed that "Caitiannuo 866" was produced using "T37" and "WH818" as parents and the appellee's conduct constituted infringement, and thus requested that the appellee be ordered to stop the production and sale of the sued infringing corn seeds, and compensate the appellee for economic losses of CNY 200,000 and reasonable expenses of CNY 20,000. The appellee argued that the appellant did not provide propagation materials as evidence to trace the parents of the sued infringing "Caitiannuo 866" seeds, and further failed to prove that the "Caitiannuo 866" seeds could only be obtained through "T37" and "WH818". During the first instance, the court dismissed all the claims of the plaintiff (the appellant in this case) on the grounds that the evidence submitted was insufficient.
During the second instance, the SPC held that,
Generally, in actual corn breeding and production, the probability of using different parents to obtain the same or very similar varieties through cross-breeding is very low. When an appellant can prove that a sued infringing hybrid variety and another hybrid variety selectively bred by using granted varieties as its father plant and mother plant have the same or very similar genotypes, it can be preliminarily presumed that there is a high possibility that the granted varieties have been used as parents of the sued infringing hybrid variety. Under such circumstance, the accused infringer (appellee) should instead provide evidence to prove that the granted varieties claimed by the variety right holder actually were not used as parents of the sued infringing hybrid variety, and where the accused infringer cannot provide evidence or the evidence provided is insufficient to overturn the above preliminary presumption, it can be determined that the granted varieties have been used as parents of the sued infringing hybrid variety. In this case, upon mutual agreement by both parties, the seeds of "Caitiannuo 866" and "Caitiannuo No. 6" were sent to Beijing Corn Seed Testing Center for testing, and the results show that among 40 comparison sites, the number of differential sites between "Caitiannuo 866" and "Caitiannuo No. 6" is 0, i.e., they belong to varieties with the same or very similar genotypes, and thus it can be preliminarily presumed that there is a high possibility that the sued infringing corn seeds of "Caitiannuo 866" have the same father plant and mother plant as the authorized variety "Caitiannuo No. 6". In such a situation, the appellee should adduce contrary evidence proving that the sued infringing corn seeds were produced and bred by using other parents. Since the appellee failed to adduce contrary evidence during the second instance, it should bear the adverse consequences. Although the act of selling the sued infringing seeds (propagating materials of another variety) is not expressly stipulated as an infringement in the Seed Law, if such another variety is directly crossbred by using two granted varieties owned by the same right holder as parent plants, then the act of selling the propagating materials of such another variety is a natural continuation of production by reusing the granted varieties, which would inevitably lead to further aggravation of the damages caused by the infringing production.
Therefore, the second-instance judgment held that, prohibiting the infringer who produced such another variety from selling propagating materials thereof conforms to the legal intent of stopping the producer's infringement and preventing the losses caused by the infringing act from aggravating. Therefore, the second-instance judgment ruled that the relevant determination made by the first-instance court was erroneous and the first-instance judgment was amended according to law. Meantime, the SPC pointed out that in this case, there was no evidence proving that the sued infringing corn seeds had gone through the examination and approval of major crop varieties, so the appellee's infringement belonged to the promotion of seeds of major crops without examination or approval, and it was suspected of violating the provisions of Articles 15 and 23 of the Seed Law, and the clues of the illegal acts were transferred to the administrative department for handling in accordance with the law.
The judgment of this case is of typical significance in many aspects. First, in the absence of industry standards, the second-instance judgment shifted the burden of proof in a timely manner giving consideration to the laws of corn breeding, and used the presumption of facts to determine the paternity relationship between hybrid corn varieties and their parents, which provides strong protection for variety right holders. Second, with respect to the act of reusing the propagating materials of a granted variety to produce propagating materials of another variety for commercial purposes, ordering the infringing producer to stop the sale of propagating material of such another variety provides favorable protection for the variety right holder. Third, with respect to the promotion of corn seeds without examination or approval, transferring the clues of such act to the administrative department for handling also reflects a joint protection pattern formed by the close connection between judicial protection and administrative law enforcement.
See the following link for the details of the relevant case:
https://ipc.court.gov.cn/zh-cn/news/view-2149.html
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