China’s Supreme Court’s Clarifies the Determination of DUS Testing Locations in Plant Variety Authorization Procedures
Published 22 July 2024
Sarah Xuan
On July 4, 2024, the Supreme People’s Court Intellectual Property Tribunal issued a judicial case (2023 Supreme Court Intellectual Property Final No. 95) concerning the determination of Distinctness, Uniformity, and Stability (DUS) testing locations in the authorization procedures for new plant varieties. The case specifies that determining DUS testing locations in plant variety authorization should be based on the region and environment suitable for the variety’s growth as recorded in the specification of the application materials. The variety type, breeding process, and methods should also be considered to ensure the variety’s characteristics are fully expressed. The case serves as a reference for intellectual property adjudicators, legal practitioners, and the public.
[Case Background]
A seed company applied for the plant variety rights for a new wheat variety named “Nongmai 168” (application number 20161023.9). The Reexamination Board for New Varieties of Plants issued the “Re-examination Decision No. 21 of 2020” on December 19, 2020, upholding the decision made by the MOA Plant Variety Protection Office on July 13, 2020, to reject the “Nongmai 168” plant variety application.
The seed company disagreed with this decision and filed an administrative lawsuit, arguing that the rejection was based on a DUS testing report issued by the Nanjing Branch of the Plant Variety Testing Center (Nanjing Branch), which was inappropriate. They claimed that Nanjing, located south of the Yangtze River, belongs to a different ecological region than the Yellow-Huai Winter Wheat Southern Region, where “Nongmai 168” and its similar variety “Huaimai 21” are suitable for growth. Therefore, the selection of Nanjing as the testing site was incorrect, rendering the DUS testing report scientifically invalid. The contested decision ignored the issue of the wrong testing location, making the substantial examination rejection decision baseless.
On November 15, 2022, the Beijing Intellectual Property Court ruled to annul the contested decision and instructed the Reexamination Board for New Varieties of Plants to make a new decision. The Reexamination Board for New Varieties of Plants appealed. On October 23, 2023, the Supreme People’s Court issued an administrative judgment: 1) annulled the Beijing Intellectual Property Court’s ruling, and 2) dismissed the seed company’s lawsuit.
[Court’s Judgment]
The court ruled that selecting the DUS testing location is closely related to the variety type and its ecological region. The cultivation location, suitable growth region, and environment recorded in the specification of the application materials significantly influence the determination of the testing site. The DUS testing site should be chosen based on the specification provided by the applicant, combined with the variety type, breeding process, and methods to ensure the characteristics of the variety are fully expressed. In this case, selecting the Nanjing Branch as the testing institution was appropriate for the following reasons:
1. The applicant must specify the suitable growth region, environment, cultivation techniques, and reasons for choosing a similar variety in the specification submitted to the Plant Variety Protection Office. This information is fundamental in determining the DUS testing site.
1) The growing region, environment, and cultivation techniques influence the expression of plant variety characteristics. Testing in the suitable growth region and environment ensures objective and fair results. According to the Regulations on the Protection of New Plant Varieties and its Implementing Rules (Agricultural Part), the specification should include the suitable growth region or environment and cultivation techniques, the breeding process, and methods, including detailed information on the lineage, cultivation process, and the parent or other reproductive material sources and names.2) The application for “Nongmai 168” records its breeding background as being in the Huaibei region, Jiangsu Province, primarily cultivated in Jianhu County, Yancheng City, Jiangsu Province, suitable for early maturity planting in the southern part of the Yellow-Huai region. Therefore, the appropriate growth region includes parts of Jiangsu Province north of the Huai River, not excluding Jianhu County south of the Huai River.3) The seed company argued that the Yellow-Huai southern region should be interpreted as the “Yellow-Huai Winter Wheat Southern Region” described in the National Approval of Wheat Varieties’ Suitable Ecological Regions, which includes areas in Henan, Shaanxi, Jiangsu, and Anhui Provinces. However, ecological and approval regions are not always identical, and multiple DUS testing centers may exist within the same agricultural environmental region. The similar variety “Huaimai 21” was also tested in the Nanjing Branch and showed consistent performance over two growth cycles, further supporting the appropriateness of the testing site.
[Conclusion]
The Supreme People’s Court clarified that determining DUS testing locations should consider the recorded suitable growth region and environment in the application description, combined with the variety type, breeding process, and methods to express the variety’s characteristics fully. This ruling provides clear legal standards and practical guidance for determining DUS testing locations in plant variety authorization procedures, ensuring the scientific validity and practical relevance of the testing site selection, thereby enhancing the fairness and transparency of the plant variety authorization process.
For plant variety applicants, it is crucial to provide detailed and accurate descriptions of the suitable growth region, environment, breeding process, and methods in the application to offer a clear basis for selecting the DUS testing location.