China’s Plant Variety Protection: A Shift from “Seedling Sales” to “Propagation Control”
Published 28 May 2026
Xia Yu
On 18 May 2026, a final judgment of the Supreme People’s Court of the People’s Republic of China (“SPC”) in the infringement case concerning the new plant variety right for the rose variety “美人” (Beauty in Chinese) (2026) SPC IP Final No. 7 was published on China Judgments Online. In this judgment, the SPC established three landmark judicial rules: for asexually propagated plants, a living plant as such constitutes propagating material; commercial-scale cultivation and maintenance activities may be found to constitute “production” or “propagation” even in the absence of traditional propagation methods such as cutting or grafting. For international breeding companies, this not only means a substantial reduction in the cost of enforcing rights in the Chinese market, but also signals that intellectual property strategies in China must shift fundamentally from a “seedling sales” mindset to a “propagation control” mindset.
Case Overview
Yimou Potted Plant Company (“Yimou”) is the holder of the new plant variety right No. 20200314 for the rose variety “美人” of the genus Rosa. Following a notarized purchase and comparative testing commissioned from the Bio-Gene Detection and Identification Centre of Jianghan University, Yimou discovered that Chen Moumou, without Yimou’s authorization, had been cultivating and selling potted roses that were highly similar or identical to the “美人” variety on her roughly ten mu (approximately 0.67 hectare) cultivation base. Yimou brought an action before the Guangzhou Intellectual Property Court ( “first-instance court”).
In the proceedings, Chen Moumou’s arguments include: (1) the source of the control samples used for the testing was unclear, and it could not be proved that they were standard samples of the protected variety; (2) the alleged infringing roses may have originated from the variety holder Yimou or its authorized distribution channels, so the principle of exhaustion of rights should apply and Yimou should have no right to assert infringement liability; and (3) the alleged infringing roses were purchased from a third party named “Cai Mou”, thus they had a lawful source and Chen Moumou should not bear liability for compensation.
The first-instance court found Chen Moumou liable for infringement and ordered her to cease the production and sale of propagating material and to pay RMB 40,000 (approximately US$5,896) in economic damages and reasonable enforcement costs. Chen Moumou appealed.
The SPC dismissed Chen Moumou’s appeal and affirmed the first‑instance judgment. In its ruling, the SPC clarified the core disputed issues and made the following findings: first, in the absence of contrary evidence sufficient to rebut the conclusion, the high degree of genetic similarity shown by the genetic test report and the high degree of conformity in morphological traits confirmed that the alleged infringing roses were identical to the protected “美人” variety; second, the SPC noted that, as a rose is an asexually propagated plant, Chen Moumou’s cultivation and maintenance of the roses for a period of one to two years for commercial purposes objectively enabled the genetic replication of the protected variety and the production of new propagating material, and that such conduct must therefore be lawfully characterized as “production” and “sale” acts infringing a new plant variety right, rather than mere daily maintenance.
Plant as Propagating Material
In its final judgment, the SPC stated: “For asexually propagated crops, the rose plant itself is capable of serving as propagating material for the production and propagation of new propagating material, thereby enabling the replication and transmission of the protected variety’s genes. Consequently, unless otherwise provided, any cultivation activity that does not constitute private non‑commercial use and is not authorized by the right holder shall be found to constitute ‘production’ or ‘propagation’ under Article 28 of the Seed Law.”
The SPC held that for asexually propagated crops such as roses, “the entire plant can serve as propagating material”. Based on this finding, the SPC logically expanded the protected basis of new plant variety rights from the traditional concept of “seed” (such as seeds, cuttings and other initial propagation forms) to include the “plant” (the intact plant at various stages of growth), clarifying that any commercial cultivation activity that is not authorized by the right holder and does not fall within the private non‑commercial use exception is, as a matter of law, equivalent to the “production” and “propagation” acts regulated by Article 28 of the Seed Law of the People’s Republic of China (“Seed Law”). This line of reasoning effectively expands the plant variety right holder’s control over the authorized variety from “propagation acts” to “the mere existence of propagating material”. For international breeding companies, this means that in the Chinese market, unauthorized commercial planting, maintenance, and sales may be more likely to be included under the control of plant variety rights by Chinese courts, even if the activities do not constitute traditional artificial propagation.
Commercial Maintenance May Constitute Propagation
On appeal, Chen Moumou contended that “the conduct in which I engaged was only the purchase of finished roses, followed by repotting, fertilizing and other maintenance activities before sale – a matter of preserving and disposing of existing propagating material, which is fundamentally different from production or propagation”; that she did not produce any new propagating material; and that accordingly her conduct should not be deemed “production”, and she should be regarded merely as a seller entitled to a lawful source defense.
The court did not accept the appellant’s above-mentioned defense but focused on the core biological characteristics of asexually propagated crops. The SPC rejected Chen Moumou’s assertions based on the following two holdings:
1. Findings regarding the “self‑replication” nature of asexually propagated plants. In its final judgment, the SPC pointed out that during the growth period after planting, roses “are capable of self‑replication and self‑propagation, thereby producing new propagating material”. In other words, even where the grower does not actively carry out propagation operations, the plant’s natural growth process continuously generates new propagating material (such as new shoots or lateral buds). For the purposes of variety right protection, such “passively produced” propagating material is legally indistinguishable from “actively propagated” propagating material.
2. Findings regarding the profit‑making purpose of commercial‑scale cultivation. The SPC noted in its final judgment that “unless otherwise provided, any cultivation activity that does not constitute private non‑commercial use and is not authorized by the right holder shall be found to constitute ‘production’ or ‘propagation’ under Article 28 of the Seed Law. Whether an activity constitutes ‘private non‑commercial use’ may be assessed by reference to factors such as the nature of the alleged infringer, the scale of the cultivation activity and the presence of profit‑making elements”. The SPC concluded that Chen Moumou’s status as a professional grower, the cultivation scale of approximately ten mu, the maintenance period of one to two years, and the fact of selling to the public collectively established that the activity did not fall within the “private non‑commercial use” exception.
In finding that commercial maintenance can constitute propagation, the SPC applied a substance‑over‑form, functional approach, concluding that the commercial cultivation and maintenance of asexually propagated plants in substance constitutes “production” or “propagation” within the meaning of the Seed Law. In the context of commercial‑scale cultivation of asexually propagated plants, there is no legal gap between “maintenance” and “propagation”: as long as the plants remain alive and the grower acts for profit, the conduct must be found to be a production or propagation act. This is of great significance for international breeding companies operating in the fields of potted plants, nursery stock and fresh cut flowers: in China, large‑scale commercial cultivation of a protected variety as such – regardless of whether artificial propagation operations are carried out – already falls within the scope of the right holder’s exclusive control.
Implications for International Breeding Companies
1. Reassessment of China Market Risk
The primary lesson for international breeding companies from this judgment is that the risk of “uncontrolled cultivation” of protected varieties in the Chinese market is systematically magnified. Traditional risk management models have focused on preventing unauthorized active propagation activities such as cutting, grafting or tissue culture. However, under the logic of this case, even if an alleged infringer claims to have “only purchased finished products from a third party and then maintained and sold them”, as long as the scale of cultivation is commercial, and the plants are kept alive, such conduct may be found to constitute production and propagation infringement. This means that when international breeding companies enter the Chinese market, they must include the following within the scope of their infringement risk assessment: unauthorized sales of finished potted plants of protected varieties; unauthorized possession of mother plants of protected varieties; “spill‑over” cultivation of protected variety plants outside authorized nursery premises; and downstream customers’ expansion of propagation beyond authorized scope.
2. Reconstruction of Supply Chain Authorization
This judgment raises the bar for supply chain management within China. Although Chen Moumou claimed to have purchased the roses from “Cai Mou”, the SPC rejected her lawful source defense on the ground that “the interval was more than one year, and it could not be established that the alleged infringing roses were those purchased from ‘Cai Mou’”. This finding has the following important implications for international breeding companies’ supply chain authorization strategies:
1) A material increases in traceability requirements. Purchase records, WeChat chat logs and other “paper records” are no longer sufficient to prove lawful source. Right holders will need to construct a physical traceability system covering the entire chain from mother plant to finished product, using means such as distinct markers, barcode labels, blockchain‑based evidence storage and other technical tools.
2) Time‑gap risk of “broken chain of authorization”. In this case, the interval of more than one year between Chen Moumou’s purchase and sale was sufficient for the SPC to find the chain of origin untraceable. This means that when international breeding companies design their authorization models for the Chinese market, they must strictly control the “time window” from authorized nursery to end‑user sale, so as to avoid traceability challenges caused by excessively long cultivation cycles.
It is worth noting that this case does not negate the principle of exhaustion of rights in the field of plant variety rights, but rather emphasizes that the accused infringer needs to bear the full burden of proof regarding the correspondence between the source of authorization and subsequent commercial planting activities.
3. Legal Risks of ODM/OEM Cultivation Arrangements
For international breeding companies that adopt an ODM/OEM model (i.e., the foreign party supplies the variety and technology, the Chinese party is responsible for cultivation and production, and the finished products are sold back overseas or locally), this judgment poses a direct challenge. Under such a model, the Chinese cultivation base in fact operates entirely under the foreign party’s instructions, and it may appear that the foreign party has full control over the variety. However, if the Chinese party engages in unauthorized over‑planting, unauthorized propagation or unauthorized sale to third parties, the foreign party will face several risks, including the possibility that alleged infringers may attempt to rely on a “lawful source” defense; the foreign party may need to prove that the plants cultivated by the Chinese party are indeed propagating material of the protected variety; and if the foreign party has not established effective physical traceability and contractual safeguards, it will be very difficult to discharge that burden of proof. It is therefore recommended that, in ODM/OEM agreements, the parties expressly provide for real‑time monitoring mechanisms for the quantities planted, include third‑party independent audit clauses, and adopt physical or molecular markers to achieve batch‑level traceability.
Conclusion
For international breeding companies and cross‑border investors, this case demonstrates that Chinese courts are continuously increasing their scrutiny of the commercial use of asexually propagated plants. In the future, licensing chain management, traceability of propagation materials, and control of commercial cultivation will become core issues in PVR compliance and rights protection strategies in the Chinese market.
Case Overview
Yimou Potted Plant Company (“Yimou”) is the holder of the new plant variety right No. 20200314 for the rose variety “美人” of the genus Rosa. Following a notarized purchase and comparative testing commissioned from the Bio-Gene Detection and Identification Centre of Jianghan University, Yimou discovered that Chen Moumou, without Yimou’s authorization, had been cultivating and selling potted roses that were highly similar or identical to the “美人” variety on her roughly ten mu (approximately 0.67 hectare) cultivation base. Yimou brought an action before the Guangzhou Intellectual Property Court ( “first-instance court”).
In the proceedings, Chen Moumou’s arguments include: (1) the source of the control samples used for the testing was unclear, and it could not be proved that they were standard samples of the protected variety; (2) the alleged infringing roses may have originated from the variety holder Yimou or its authorized distribution channels, so the principle of exhaustion of rights should apply and Yimou should have no right to assert infringement liability; and (3) the alleged infringing roses were purchased from a third party named “Cai Mou”, thus they had a lawful source and Chen Moumou should not bear liability for compensation.
The first-instance court found Chen Moumou liable for infringement and ordered her to cease the production and sale of propagating material and to pay RMB 40,000 (approximately US$5,896) in economic damages and reasonable enforcement costs. Chen Moumou appealed.
The SPC dismissed Chen Moumou’s appeal and affirmed the first‑instance judgment. In its ruling, the SPC clarified the core disputed issues and made the following findings: first, in the absence of contrary evidence sufficient to rebut the conclusion, the high degree of genetic similarity shown by the genetic test report and the high degree of conformity in morphological traits confirmed that the alleged infringing roses were identical to the protected “美人” variety; second, the SPC noted that, as a rose is an asexually propagated plant, Chen Moumou’s cultivation and maintenance of the roses for a period of one to two years for commercial purposes objectively enabled the genetic replication of the protected variety and the production of new propagating material, and that such conduct must therefore be lawfully characterized as “production” and “sale” acts infringing a new plant variety right, rather than mere daily maintenance.
Plant as Propagating Material
In its final judgment, the SPC stated: “For asexually propagated crops, the rose plant itself is capable of serving as propagating material for the production and propagation of new propagating material, thereby enabling the replication and transmission of the protected variety’s genes. Consequently, unless otherwise provided, any cultivation activity that does not constitute private non‑commercial use and is not authorized by the right holder shall be found to constitute ‘production’ or ‘propagation’ under Article 28 of the Seed Law.”
The SPC held that for asexually propagated crops such as roses, “the entire plant can serve as propagating material”. Based on this finding, the SPC logically expanded the protected basis of new plant variety rights from the traditional concept of “seed” (such as seeds, cuttings and other initial propagation forms) to include the “plant” (the intact plant at various stages of growth), clarifying that any commercial cultivation activity that is not authorized by the right holder and does not fall within the private non‑commercial use exception is, as a matter of law, equivalent to the “production” and “propagation” acts regulated by Article 28 of the Seed Law of the People’s Republic of China (“Seed Law”). This line of reasoning effectively expands the plant variety right holder’s control over the authorized variety from “propagation acts” to “the mere existence of propagating material”. For international breeding companies, this means that in the Chinese market, unauthorized commercial planting, maintenance, and sales may be more likely to be included under the control of plant variety rights by Chinese courts, even if the activities do not constitute traditional artificial propagation.
Commercial Maintenance May Constitute Propagation
On appeal, Chen Moumou contended that “the conduct in which I engaged was only the purchase of finished roses, followed by repotting, fertilizing and other maintenance activities before sale – a matter of preserving and disposing of existing propagating material, which is fundamentally different from production or propagation”; that she did not produce any new propagating material; and that accordingly her conduct should not be deemed “production”, and she should be regarded merely as a seller entitled to a lawful source defense.
The court did not accept the appellant’s above-mentioned defense but focused on the core biological characteristics of asexually propagated crops. The SPC rejected Chen Moumou’s assertions based on the following two holdings:
1. Findings regarding the “self‑replication” nature of asexually propagated plants. In its final judgment, the SPC pointed out that during the growth period after planting, roses “are capable of self‑replication and self‑propagation, thereby producing new propagating material”. In other words, even where the grower does not actively carry out propagation operations, the plant’s natural growth process continuously generates new propagating material (such as new shoots or lateral buds). For the purposes of variety right protection, such “passively produced” propagating material is legally indistinguishable from “actively propagated” propagating material.
2. Findings regarding the profit‑making purpose of commercial‑scale cultivation. The SPC noted in its final judgment that “unless otherwise provided, any cultivation activity that does not constitute private non‑commercial use and is not authorized by the right holder shall be found to constitute ‘production’ or ‘propagation’ under Article 28 of the Seed Law. Whether an activity constitutes ‘private non‑commercial use’ may be assessed by reference to factors such as the nature of the alleged infringer, the scale of the cultivation activity and the presence of profit‑making elements”. The SPC concluded that Chen Moumou’s status as a professional grower, the cultivation scale of approximately ten mu, the maintenance period of one to two years, and the fact of selling to the public collectively established that the activity did not fall within the “private non‑commercial use” exception.
In finding that commercial maintenance can constitute propagation, the SPC applied a substance‑over‑form, functional approach, concluding that the commercial cultivation and maintenance of asexually propagated plants in substance constitutes “production” or “propagation” within the meaning of the Seed Law. In the context of commercial‑scale cultivation of asexually propagated plants, there is no legal gap between “maintenance” and “propagation”: as long as the plants remain alive and the grower acts for profit, the conduct must be found to be a production or propagation act. This is of great significance for international breeding companies operating in the fields of potted plants, nursery stock and fresh cut flowers: in China, large‑scale commercial cultivation of a protected variety as such – regardless of whether artificial propagation operations are carried out – already falls within the scope of the right holder’s exclusive control.
Implications for International Breeding Companies
1. Reassessment of China Market Risk
The primary lesson for international breeding companies from this judgment is that the risk of “uncontrolled cultivation” of protected varieties in the Chinese market is systematically magnified. Traditional risk management models have focused on preventing unauthorized active propagation activities such as cutting, grafting or tissue culture. However, under the logic of this case, even if an alleged infringer claims to have “only purchased finished products from a third party and then maintained and sold them”, as long as the scale of cultivation is commercial, and the plants are kept alive, such conduct may be found to constitute production and propagation infringement. This means that when international breeding companies enter the Chinese market, they must include the following within the scope of their infringement risk assessment: unauthorized sales of finished potted plants of protected varieties; unauthorized possession of mother plants of protected varieties; “spill‑over” cultivation of protected variety plants outside authorized nursery premises; and downstream customers’ expansion of propagation beyond authorized scope.
2. Reconstruction of Supply Chain Authorization
This judgment raises the bar for supply chain management within China. Although Chen Moumou claimed to have purchased the roses from “Cai Mou”, the SPC rejected her lawful source defense on the ground that “the interval was more than one year, and it could not be established that the alleged infringing roses were those purchased from ‘Cai Mou’”. This finding has the following important implications for international breeding companies’ supply chain authorization strategies:
1) A material increases in traceability requirements. Purchase records, WeChat chat logs and other “paper records” are no longer sufficient to prove lawful source. Right holders will need to construct a physical traceability system covering the entire chain from mother plant to finished product, using means such as distinct markers, barcode labels, blockchain‑based evidence storage and other technical tools.
2) Time‑gap risk of “broken chain of authorization”. In this case, the interval of more than one year between Chen Moumou’s purchase and sale was sufficient for the SPC to find the chain of origin untraceable. This means that when international breeding companies design their authorization models for the Chinese market, they must strictly control the “time window” from authorized nursery to end‑user sale, so as to avoid traceability challenges caused by excessively long cultivation cycles.
It is worth noting that this case does not negate the principle of exhaustion of rights in the field of plant variety rights, but rather emphasizes that the accused infringer needs to bear the full burden of proof regarding the correspondence between the source of authorization and subsequent commercial planting activities.
3. Legal Risks of ODM/OEM Cultivation Arrangements
For international breeding companies that adopt an ODM/OEM model (i.e., the foreign party supplies the variety and technology, the Chinese party is responsible for cultivation and production, and the finished products are sold back overseas or locally), this judgment poses a direct challenge. Under such a model, the Chinese cultivation base in fact operates entirely under the foreign party’s instructions, and it may appear that the foreign party has full control over the variety. However, if the Chinese party engages in unauthorized over‑planting, unauthorized propagation or unauthorized sale to third parties, the foreign party will face several risks, including the possibility that alleged infringers may attempt to rely on a “lawful source” defense; the foreign party may need to prove that the plants cultivated by the Chinese party are indeed propagating material of the protected variety; and if the foreign party has not established effective physical traceability and contractual safeguards, it will be very difficult to discharge that burden of proof. It is therefore recommended that, in ODM/OEM agreements, the parties expressly provide for real‑time monitoring mechanisms for the quantities planted, include third‑party independent audit clauses, and adopt physical or molecular markers to achieve batch‑level traceability.
Conclusion
For international breeding companies and cross‑border investors, this case demonstrates that Chinese courts are continuously increasing their scrutiny of the commercial use of asexually propagated plants. In the future, licensing chain management, traceability of propagation materials, and control of commercial cultivation will become core issues in PVR compliance and rights protection strategies in the Chinese market.