China’s Supreme Court Clarifies Unauthorized Sales Do Not Destroy Novelty for a Plant Variety Right
Published 1 September 2025
Yu Du
On 27 August 2025, the Intellectual Property Court of the Supreme People’s Court (SPC) released a guiding case clarifying a fundamental issue in the protection of plant variety rights (PVR): whether unauthorized sales can destroy a variety’s novelty. In the final judgment of the case (2024) No. 891, the SPC affirmed that sales conducted without the consent of the PVR holder do not affect the novelty of a plant variety. This case sheds important light on the interpretation of “novelty” in the context of PVR invalidation proceedings and provides key judicial guidance for future rights protection.
Case Background
The plant variety at the center of the dispute is CALYPSO, a bromeliad variety (Genus: Aechmea - which was included in China’s list of protected agricultural plant species on 21 April 2008) protected under Chinese PVR No. CNA20080275.5. CALYPSO was developed by ExoticPlant, a leading global supplier of bromeliad plantlets based in Belgium, and its wholly owned China-based subsidiary, Exotic Plant Horticulture (Shanghai) Co., Ltd., is the PVR holder. The PVR application for CALYPSO was filed in China on 15 May 2008 and registered on 1 November 2014.
Further, according to EU records, CALYPSO was first filed for PVR in Belgium on 5 January 1995 and registered on 30 April 1999. It was subsequently filed in the Netherlands on 3 January 1996 and registered on 14 August 2000.
On 5 February 2021, an individual Mr. Chen filed a request with the Ministry of Agriculture and Rural Affairs’ PVR Reexamination Board to invalidate the Chinese PVR for CALYPSO, claiming that the variety lacked novelty, as it had been sold outside China for over four years and within China for more than one year prior to the application date. He supported this claim by submitting a Belgian court judgment in an infringement case brought by ExoticPlant, along with promotional leaflets from domestic horticultural companies and excerpts from China Flowers & Horticulture magazine, arguing that these materials showed the variety had already been publicly sold or displayed.
However, on 3 December 2021, the PVR Reexamination Board rejected the request, concluding that unauthorized “infringing sales” by third parties do not affect novelty under Chinese PVR regulations.
First-Instance Court Ruling
Unsatisfied, Mr. Chen filed a lawsuit before the Beijing Intellectual Property Court on 17 January 2022. The IP Court reviewed international treaties, the legislative history of China’s Seed Law, and general principles of fairness. It held that only sales authorized by the breeder or PVR holder (such as self-sale, authorized sale, internal sale, or licensed sale) can compromise novelty. Unauthorized or infringing sales do not amount to “sale” in the legal sense that affects novelty. On 28 June 2024, the Beijing IP Court ruled against Mr. Chen and upheld the validity of the CALYPSO PVR.
Second-Instance Appeal and SPC Judgment
Mr. Chen appealed, arguing that the first-instance court misinterpreted the meaning of “sale” and had failed to properly assess whether the PVR holder had sold the variety in China prior to the application date. The SPC accepted the case on 4 September 2024, formed a collegiate panel, and held a hearing with the parties on 8 April 2025.
In its judgment, the SPC made several key findings:
1) Under Article 14 of the 1997 Regulations on the Protection of New Plant Varieties, novelty must be evaluated based on whether the breeder had sold the variety before the application date. If so, it must be determined whether such sales exceeded the prescribed “grace period”.
2) The type of sale that affects novelty is one where the breeder, for commercial purposes, transfers ownership of propagating material, resulting in loss of control. The critical factor is whether the sale was made by the breeder or with the breeder’s consent.
3) Unauthorized (infringing) sales do not affect novelty and do not need to be evaluated under the grace period provisions.
4) For varieties newly added to the PVR protection list (as was the case here with CALYPSO), domestic sales before application are granted a four-year grace period. Sales outside China, however, must adhere to the standard one-year grace period, without exception.
In this case, Mr. Chen failed to present any evidence that the sales in question were conducted by the breeder or with their permission. Even assuming his allegation of domestic sales in 2006 was true, those sales still fell within the applicable four-year grace period. Therefore, his argument that CALYPSO lacked novelty was not supported by facts. On 30 May 2025, the SPC issued its final ruling - the appeal was dismissed, and the original judgment was upheld.
Comment
This decision, released as a guiding case, carries substantial importance for the judicial protection of PVR in China. It provides authoritative clarification on the interpretation of “novelty”, especially in relation to unauthorized or infringing acts. The SPC confirmed that only consented sales by the breeder or PVR holder can undermine novelty. It also outlined how grace periods are applied in domestic versus international contexts and emphasized that factual evidence of consent is essential in PVR invalidation cases. By drawing clear boundaries around what constitutes a novelty-destroying sale, the ruling reinforces the legal certainty of plant breeders and rights holders. The case also serves as an instructive precedent for future courts dealing with similar PVR disputes.
Case Background
The plant variety at the center of the dispute is CALYPSO, a bromeliad variety (Genus: Aechmea - which was included in China’s list of protected agricultural plant species on 21 April 2008) protected under Chinese PVR No. CNA20080275.5. CALYPSO was developed by ExoticPlant, a leading global supplier of bromeliad plantlets based in Belgium, and its wholly owned China-based subsidiary, Exotic Plant Horticulture (Shanghai) Co., Ltd., is the PVR holder. The PVR application for CALYPSO was filed in China on 15 May 2008 and registered on 1 November 2014.
Further, according to EU records, CALYPSO was first filed for PVR in Belgium on 5 January 1995 and registered on 30 April 1999. It was subsequently filed in the Netherlands on 3 January 1996 and registered on 14 August 2000.
On 5 February 2021, an individual Mr. Chen filed a request with the Ministry of Agriculture and Rural Affairs’ PVR Reexamination Board to invalidate the Chinese PVR for CALYPSO, claiming that the variety lacked novelty, as it had been sold outside China for over four years and within China for more than one year prior to the application date. He supported this claim by submitting a Belgian court judgment in an infringement case brought by ExoticPlant, along with promotional leaflets from domestic horticultural companies and excerpts from China Flowers & Horticulture magazine, arguing that these materials showed the variety had already been publicly sold or displayed.
However, on 3 December 2021, the PVR Reexamination Board rejected the request, concluding that unauthorized “infringing sales” by third parties do not affect novelty under Chinese PVR regulations.
First-Instance Court Ruling
Unsatisfied, Mr. Chen filed a lawsuit before the Beijing Intellectual Property Court on 17 January 2022. The IP Court reviewed international treaties, the legislative history of China’s Seed Law, and general principles of fairness. It held that only sales authorized by the breeder or PVR holder (such as self-sale, authorized sale, internal sale, or licensed sale) can compromise novelty. Unauthorized or infringing sales do not amount to “sale” in the legal sense that affects novelty. On 28 June 2024, the Beijing IP Court ruled against Mr. Chen and upheld the validity of the CALYPSO PVR.
Second-Instance Appeal and SPC Judgment
Mr. Chen appealed, arguing that the first-instance court misinterpreted the meaning of “sale” and had failed to properly assess whether the PVR holder had sold the variety in China prior to the application date. The SPC accepted the case on 4 September 2024, formed a collegiate panel, and held a hearing with the parties on 8 April 2025.
In its judgment, the SPC made several key findings:
1) Under Article 14 of the 1997 Regulations on the Protection of New Plant Varieties, novelty must be evaluated based on whether the breeder had sold the variety before the application date. If so, it must be determined whether such sales exceeded the prescribed “grace period”.
2) The type of sale that affects novelty is one where the breeder, for commercial purposes, transfers ownership of propagating material, resulting in loss of control. The critical factor is whether the sale was made by the breeder or with the breeder’s consent.
3) Unauthorized (infringing) sales do not affect novelty and do not need to be evaluated under the grace period provisions.
4) For varieties newly added to the PVR protection list (as was the case here with CALYPSO), domestic sales before application are granted a four-year grace period. Sales outside China, however, must adhere to the standard one-year grace period, without exception.
In this case, Mr. Chen failed to present any evidence that the sales in question were conducted by the breeder or with their permission. Even assuming his allegation of domestic sales in 2006 was true, those sales still fell within the applicable four-year grace period. Therefore, his argument that CALYPSO lacked novelty was not supported by facts. On 30 May 2025, the SPC issued its final ruling - the appeal was dismissed, and the original judgment was upheld.
Comment
This decision, released as a guiding case, carries substantial importance for the judicial protection of PVR in China. It provides authoritative clarification on the interpretation of “novelty”, especially in relation to unauthorized or infringing acts. The SPC confirmed that only consented sales by the breeder or PVR holder can undermine novelty. It also outlined how grace periods are applied in domestic versus international contexts and emphasized that factual evidence of consent is essential in PVR invalidation cases. By drawing clear boundaries around what constitutes a novelty-destroying sale, the ruling reinforces the legal certainty of plant breeders and rights holders. The case also serves as an instructive precedent for future courts dealing with similar PVR disputes.