On 15 November 2023, the Beijing Intellectual Property Court (“Beijing IP Court”) held a press conference to inform the Beijing Intellectual Property Court about the intellectual property protection for plant variety rights (“PVR”). At the conference, Beijing IP Court emphasized that since its establishment, it has continuously strengthened the intellectual property protection for PVR and provided solid judicial guarantee for the innovative development of the PVR. In addition, Beijing IP Court has earnestly performed its trial function and has heard PVR cases with certain influence and high social concern in the industry, and then released typical cases of the intellectual property protection for PVR. The following is the introduction and summary of these cases.
Case 1: Invalidation of “Qiangshuo 68”, a new corn plant variety
Case Summary
The third-party Yi Mou is holder of the “Qiangshuo 68” corn plant variety right. In 2008, Yi Mou commissioned the company outside the case to produce “Qiangshuo 68”, and agreed to buy back the seed production. Subsequently, the Plaintiff filed a request for invalidation for “qiangshuo 68” to the Re-examination Board for New Varieties of Plants, established under the Ministry of Agriculture (“the Defendant”), based on loss of novelty. The Defendant made 2020 No. 25 variety right invalidation decision, which maintain the validity of variety right for “qiangshuo 68”. The Plaintiff filed an administrative lawsuit, arguing that Yi Mou had delivered the breeding material of “Qiangshuo 68” to a company outside the case for seed production since 2008, and that the variety rights have been in place for over a year by 9 December 2009, which resulted in the loss of novelty. The Beijing Intellectual Property Court held in the first instance that the delivery of the breeding materials of the applied variety by the breeder who commissioned another person to make the seed, and the agreement that the breeding materials of the applied variety would be returned to the breeder, would not lead to the loss of novelty of the applied variety.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. The Plaintiff appealed to the Supreme People’s Court against the first instance judgment. The final judgment of the Supreme People’s Court rejected the appeal and upheld the original judgment.
Typical significance
This case provides a reasonable interpretation of the boundaries of sales behavior in the judgment of novelty of new plant varieties and makes it clear that the “delivery of propagation materials for the purpose of commissioned seed production and the agreement to repurchase them” does not fall into the category of sales behavior that affects the novelty. It was clarified that the essence of the novelty judgment of new plant varieties lies in whether the propagation materials of the applied varieties have entered the public domain and are accessible to the public, and that the act of “entrusting seed production and agreeing to buy back” does not cause the propagation materials to enter the public domain, and therefore it does not constitute the reason for the loss of novelty of the corresponding new plant varieties, which provides a strong basis for the breeders to entrust the seed production in the research and development process and then apply for the variety rights. This provides a strong guarantee for breeders to apply for variety rights after commissioning seed production in the R&D process. This case was selected as a typical case of the intellectual property protection for PVR by the People’s Court in 2023.
Case 2: Re-examination of the application for rejection of the new maize variety “HAYU 189”.
Case Summary
The Defendant Re-examination Board for New Varieties of Plants determined that when “Hayu 189” filed its application for variety rights on 29 June 2015, “Lihe 228” had already passed the preliminary examination announced on 14 April 2015, and that the selection of “LIHE 228” as the known variety for this application complied with the provisions of the Regulation of the People’s Republic of China on Protection of New Varieties of Plants https://www.gov.cn/gongbao/content/2016/content_5139623.htm. The Plaintiff appealed to the Beijing Intellectual Property Court, claiming that “Hayu 189” was a known plant variety, and that “Lihe 228” first applied for variety certification or variety right protection in China later than “Hayu 189”, and could not be used as a similar variety to evaluate the specificity of “Hayu 189”.
The Beijing Intellectual Property Court held in the first instance that, firstly, the announcement of the preliminary examination for the variety right of “Lihe 228” was made before the submission of the application for the variety right of “Hanyu 189”, so “Lihe 228” could be regarded as a plant variety known prior to the filing of the application. Secondly, for the same variety, there is no necessary connection between the time of application for protection of variety rights and the time of application for variety certification, therefore, the timing of the application for variety certification of “Hayu 189” has no impact on the determination of the known plant varieties in this case.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. The Plaintiff appealed to the Supreme People’s Court against the first instance judgment. The final judgment of the Supreme People’s Court rejected the appeal and upheld the original judgment.
Typical significance
The judgment clarifies the issue of recognizing known varieties in the determination of specificity of new plant varieties. Variety specificity requires that a new variety of plant for which a variety right is applied for should be clearly differentiated from plant varieties known prior to the filing of the application, and the baseline time for the judgment is the application date of the application for a variety right, not the time of the application for variety certification. The time when the variety for which the protection of new plant variety right is applied for was subject to variety validation and variety promotion before the filing date is of significance in determining whether it possesses novelty, but it is not relevant to the selection of the known variety determined as the object of comparison of specificity and does not have an impact on the judgment of specificity. This case was selected as a typical case of the intellectual property protection for PVR by the People’s Court in 2021, and one of the top ten typical cases of protection of new varieties of agricultural plants by the Ministry of Agriculture and Rural Affairs in 2022.
Case 3: “Maso” chili pepper plant variety infringement case
Case Summary
The Plaintiff owns the new variety rights of “Maso” pepper, it found that the “Shenghong” varieties by Defendant, a Beijing company infringed on its varieties of rights, and then sued to the court to demand the cessation of infringement and compensation. The Defendant argued that the sale of its authorized sweet pepper varieties named “PP1201” (once known as “Shenghong”), and therefore does not constitute infringement. The court initiated the identification procedure in accordance with the law and organized a one-by-one genetic fingerprinting test (DNA fingerprinting) for the infringing varieties “Maso” and “Shenghong”, and the results of the comparison were that the number of discrepancy loci was 0. The court then accepted the plaintiff’s application for field observation and testing (DUS test). The result showed that the chili pepper variety sold by the Defendant had obvious differences with the “Maso” chili pepper variety for which the Plaintiff had new plant variety rights, and the result of the case was clarified. The Plaintiff filed a motion to dismiss the case. The Beijing Intellectual Property Court ruled that the Plaintiff was allowed to withdraw its lawsuit against the Defendant.
Typical significance
This case clarifies the criteria for the order of application of genetic fingerprinting test (DNA fingerprinting) and field observation test (DUS test) in civil infringement cases. DNA fingerprinting has the advantages of high sensitivity, high efficiency and repeatability, and is able to effectively differentiate between plant varieties, and provide a scientific basis for the identification of plant varieties. However, for some plant varieties with close affinity, the possibility of differentiation of DNA fingerprinting is low, and there are certain limitations. The DUS test, on the other hand, is highly accurate despite its long testing period and high cost. Considering the fact that the Defendant also owns the plant variety rights and other factors, the DUS test was conducted when no difference was seen in the DNA fingerprinting, which took into account the efficiency and fairness, and restored the objective truth of the case.
Case 4: Infringement of technical secrets of the “Dawu Jinfeng” egg-laying system
Case Summary
The Plaintiff claimed that its “Dawu Jinfeng” egg supporting system belongs to the technical secrets, and claimed that the Defendant stole its technical secrets, cultivated “jingfan 6” egg supporting system, constitutes an infringement, it sued to the court requesting the Defendant to stop infringing and make compensation.
The Beijing Intellectual Property Court held in the first instance that the technical secrets claimed by the Plaintiff had been publicly disclosed in the specification of the patent No. 201410505667.7 “Breeding method of breeding male and female lines of pink-shelled laying hens”, as well as in other public publications. Since the Plaintiff has applied to be the co-right holder of Patent No. 201410505667.7 “Breeding Method of Separating Male and Female Lines of Pink Shell Egg Laying Chickens”, the Plaintiff agrees to disclose the technical scheme of the said patent to the public. At the same time, the Plaintiff company should have foreseen and borne the legal consequences of its behavior, namely, that its “Dawu Jinfeng” egg-laying hens technical program lost the condition of “not being known to the public”, and thus did not constitute a technical secret protected by the Anti-unfair Competition Law.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. None of the parties filed an appeal.
Typical significance
This case involves the technical secret of the red feathered egg chicken breed, because the new breed of livestock and poultry in our country does not belong to the type of statutory intellectual property rights, the practice is usually protected by patents or technical secrets. This case makes clear the conflict between the protection of technical secrets and patent protection, the patent system to the public for protection, technical secrets to the secrecy as a necessary condition, so for the same technical program, the two ways of protection can not be both, the need to make trade-offs. The case reveals that the planting enterprises should attach great importance to the early intellectual property rights reasonable layout, early layout of the later results of transformation, intellectual property rights will have a decisive impact.
Case 5: Patent infringement of the invention of “Pure white true shimeji mushroom strain”
Case Summary
The Plaintiff is the patentee of the patent number 201310030601.2, the name of the “pure white shimeji mushroom strain” invention patent (referred to as the patent in question). The Plaintiff claimed that the Defendants’ production and sale of the product infringes its patent, so requested the court to stop infringing and compensation.
In the trial, the parties agreed, the court organized the two sides to re-purchase the bacterial products as samples for identification agencies. However, the parties disagreed on whether to adopt the “whole gene sequence test” or the “gene-specific fragment test” for identification.
The Beijing Intellectual Property Court held in the first instance that, with regard to the gene sequence comparison of microorganisms, not only is it a comparison of how much of the gene sequences of the two are the same or similar, but there is also the genetic interpretation and analysis after the sequencing of the gene sequences, and that due to the complexity of the genome structure as well as the bias during the sequencing process, it is indeed difficult to determine whether they are the same microorganisms on the basis of the magnitude of the degree of similarity between the two. Therefore, the court held that due to the possibility of gene mutation, the whole gene sequence testing method was uncertain and insufficient to correctly reflect whether the accused infringing product and the patent in question were the same microorganism. On this basis, it is reasonable for the appraisal organization to adopt the appraisal method of gene-specific fragment detection. According to the conclusion of the appraisal opinion, the accused infringing products and the samples preserved by the patent in question belonged to the same strain of bacteria, so the accused infringing products had fallen into the scope of protection of the patent in question.
The Beijing Intellectual Property Court ruled in the first instance that: 1) the Defendant, an agricultural technology company and an agricultural technology company, should immediately stop manufacturing and selling products infringing the patent in question; 2) the Defendant, an agricultural technology company, should compensate the Plaintiff company for the loss of RMB 1,000,000 and the reasonable expenses of RMB 84,175; 3) the Defendant, a technology company, should compensate the Plaintiff for the loss of RMB 1,000,000 and the reasonable expenses of RMB 84,175; 4) Dismissing the Plaintiff’s other claims.
Both Defendants appealed the first instance judgment to the Supreme People’s Court. The Supreme People’s Court finally rejected the appeal and upheld the original judgment.
Typical significance
This case involves a patent for the invention of a pure white shimeji mushroom strain variety, and the judgment adopts the selection of identification methods for shimeji mushrooms with two-cell nuclei, ruling out the whole gene sequence detection method and adopting the gene-specific fragment detection method. The case is clear that based on genetic mutation and other factors, the whole gene sequence detection method has uncertainty, and is not sufficient to correctly reflect whether the accused infringing product and the patent in question are the same kind of microorganism.
Case 6: Re-examination of the rejection of a patent application for the invention “methods and compositions for genetic control of insect infestation in plants”
Case Summary
The Plaintiff applied to the CNIPA for a patent on “methods and compositions for genetic control of insect infestation in plants”. The CNIPA issued decision of re-examination No. 114549, rejecting the application on the ground that it did not meet the requirements of Article 26(4) of the Patent Law of the People’s Republic of China https://www.cnipa.gov.cn/art/2020/11/23/art_97_155167.html. The Plaintiff filed an administrative lawsuit with the Beijing Intellectual Property Court against the decision. The Court held that the technical program (b) in claim 1 adopts the homology limitation of “a sequence having at least 90% identity to SEQ ID NO:818 of 988bp”, and the technical program (c) in claim 1 adopts the homology limitation of “a nucleic acid sequence of at least 90% identity to the nucleic acid sequence of SEQ ID NO. 818 of 988bp”: 818, wherein a Coleoptera plant pest ingests a double-stranded ribonucleotide sequence comprising at least one strand complementary to said fragment to inhibit the growth of said pest” in technical solution (c) of claim 1 in the “sequence component + function” limitation.
On the premise of objectively analyzing the size of the scope of protection of the claims, the judgment comprehensively considered the technical background of the relevant fields, the record of specific embodiments in the specification and other evidence in the case, and held that the experimental data recorded in the specification was insufficient to verify the technical effects claimed by the patent in question, and did not comply with the provisions of Article 26(4) of the Patent Law of the People’s Republic of China.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. The Plaintiff appealed to the Supreme People’s Court, the Supreme People’s Court rejected the appeal and upheld the original judgment.
Typical significance
This case relates to a polynucleotide sequence, which is ingested by plant pests of Coleoptera to inhibit the growth of the pests. This case comprehensively considers the technical background of the relevant fields, the record of specific embodiments in the specification and other evidence in the case, analyzes the supportive issues of patents of biological sequences using different drafting styles, and provides guidelines for planting enterprises to apply for patent protection.
Summary
The cases released by the Beijing Intellectual Property Court clearly define the rules of adjudication and strengthen the industry guidelines, reflecting the court’s firm attitude to increase the infringement sanctions and effectively protect and incentivize the PVR’s original innovation. At the same time, the operation of the specialized trial mechanism for the PVR of the Beijing IP Court reflects the importance that the Beijing IP Court attaches to the judicial protection of intellectual property for PVR, which helps to improve the level of the relevant cases, help the planting enterprises to innovate in science and technology, and build a pattern of intellectual property protection for PVR.
Case 1: Invalidation of “Qiangshuo 68”, a new corn plant variety
Case Summary
The third-party Yi Mou is holder of the “Qiangshuo 68” corn plant variety right. In 2008, Yi Mou commissioned the company outside the case to produce “Qiangshuo 68”, and agreed to buy back the seed production. Subsequently, the Plaintiff filed a request for invalidation for “qiangshuo 68” to the Re-examination Board for New Varieties of Plants, established under the Ministry of Agriculture (“the Defendant”), based on loss of novelty. The Defendant made 2020 No. 25 variety right invalidation decision, which maintain the validity of variety right for “qiangshuo 68”. The Plaintiff filed an administrative lawsuit, arguing that Yi Mou had delivered the breeding material of “Qiangshuo 68” to a company outside the case for seed production since 2008, and that the variety rights have been in place for over a year by 9 December 2009, which resulted in the loss of novelty. The Beijing Intellectual Property Court held in the first instance that the delivery of the breeding materials of the applied variety by the breeder who commissioned another person to make the seed, and the agreement that the breeding materials of the applied variety would be returned to the breeder, would not lead to the loss of novelty of the applied variety.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. The Plaintiff appealed to the Supreme People’s Court against the first instance judgment. The final judgment of the Supreme People’s Court rejected the appeal and upheld the original judgment.
Typical significance
This case provides a reasonable interpretation of the boundaries of sales behavior in the judgment of novelty of new plant varieties and makes it clear that the “delivery of propagation materials for the purpose of commissioned seed production and the agreement to repurchase them” does not fall into the category of sales behavior that affects the novelty. It was clarified that the essence of the novelty judgment of new plant varieties lies in whether the propagation materials of the applied varieties have entered the public domain and are accessible to the public, and that the act of “entrusting seed production and agreeing to buy back” does not cause the propagation materials to enter the public domain, and therefore it does not constitute the reason for the loss of novelty of the corresponding new plant varieties, which provides a strong basis for the breeders to entrust the seed production in the research and development process and then apply for the variety rights. This provides a strong guarantee for breeders to apply for variety rights after commissioning seed production in the R&D process. This case was selected as a typical case of the intellectual property protection for PVR by the People’s Court in 2023.
Case 2: Re-examination of the application for rejection of the new maize variety “HAYU 189”.
Case Summary
The Defendant Re-examination Board for New Varieties of Plants determined that when “Hayu 189” filed its application for variety rights on 29 June 2015, “Lihe 228” had already passed the preliminary examination announced on 14 April 2015, and that the selection of “LIHE 228” as the known variety for this application complied with the provisions of the Regulation of the People’s Republic of China on Protection of New Varieties of Plants https://www.gov.cn/gongbao/content/2016/content_5139623.htm. The Plaintiff appealed to the Beijing Intellectual Property Court, claiming that “Hayu 189” was a known plant variety, and that “Lihe 228” first applied for variety certification or variety right protection in China later than “Hayu 189”, and could not be used as a similar variety to evaluate the specificity of “Hayu 189”.
The Beijing Intellectual Property Court held in the first instance that, firstly, the announcement of the preliminary examination for the variety right of “Lihe 228” was made before the submission of the application for the variety right of “Hanyu 189”, so “Lihe 228” could be regarded as a plant variety known prior to the filing of the application. Secondly, for the same variety, there is no necessary connection between the time of application for protection of variety rights and the time of application for variety certification, therefore, the timing of the application for variety certification of “Hayu 189” has no impact on the determination of the known plant varieties in this case.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. The Plaintiff appealed to the Supreme People’s Court against the first instance judgment. The final judgment of the Supreme People’s Court rejected the appeal and upheld the original judgment.
Typical significance
The judgment clarifies the issue of recognizing known varieties in the determination of specificity of new plant varieties. Variety specificity requires that a new variety of plant for which a variety right is applied for should be clearly differentiated from plant varieties known prior to the filing of the application, and the baseline time for the judgment is the application date of the application for a variety right, not the time of the application for variety certification. The time when the variety for which the protection of new plant variety right is applied for was subject to variety validation and variety promotion before the filing date is of significance in determining whether it possesses novelty, but it is not relevant to the selection of the known variety determined as the object of comparison of specificity and does not have an impact on the judgment of specificity. This case was selected as a typical case of the intellectual property protection for PVR by the People’s Court in 2021, and one of the top ten typical cases of protection of new varieties of agricultural plants by the Ministry of Agriculture and Rural Affairs in 2022.
Case 3: “Maso” chili pepper plant variety infringement case
Case Summary
The Plaintiff owns the new variety rights of “Maso” pepper, it found that the “Shenghong” varieties by Defendant, a Beijing company infringed on its varieties of rights, and then sued to the court to demand the cessation of infringement and compensation. The Defendant argued that the sale of its authorized sweet pepper varieties named “PP1201” (once known as “Shenghong”), and therefore does not constitute infringement. The court initiated the identification procedure in accordance with the law and organized a one-by-one genetic fingerprinting test (DNA fingerprinting) for the infringing varieties “Maso” and “Shenghong”, and the results of the comparison were that the number of discrepancy loci was 0. The court then accepted the plaintiff’s application for field observation and testing (DUS test). The result showed that the chili pepper variety sold by the Defendant had obvious differences with the “Maso” chili pepper variety for which the Plaintiff had new plant variety rights, and the result of the case was clarified. The Plaintiff filed a motion to dismiss the case. The Beijing Intellectual Property Court ruled that the Plaintiff was allowed to withdraw its lawsuit against the Defendant.
Typical significance
This case clarifies the criteria for the order of application of genetic fingerprinting test (DNA fingerprinting) and field observation test (DUS test) in civil infringement cases. DNA fingerprinting has the advantages of high sensitivity, high efficiency and repeatability, and is able to effectively differentiate between plant varieties, and provide a scientific basis for the identification of plant varieties. However, for some plant varieties with close affinity, the possibility of differentiation of DNA fingerprinting is low, and there are certain limitations. The DUS test, on the other hand, is highly accurate despite its long testing period and high cost. Considering the fact that the Defendant also owns the plant variety rights and other factors, the DUS test was conducted when no difference was seen in the DNA fingerprinting, which took into account the efficiency and fairness, and restored the objective truth of the case.
Case 4: Infringement of technical secrets of the “Dawu Jinfeng” egg-laying system
Case Summary
The Plaintiff claimed that its “Dawu Jinfeng” egg supporting system belongs to the technical secrets, and claimed that the Defendant stole its technical secrets, cultivated “jingfan 6” egg supporting system, constitutes an infringement, it sued to the court requesting the Defendant to stop infringing and make compensation.
The Beijing Intellectual Property Court held in the first instance that the technical secrets claimed by the Plaintiff had been publicly disclosed in the specification of the patent No. 201410505667.7 “Breeding method of breeding male and female lines of pink-shelled laying hens”, as well as in other public publications. Since the Plaintiff has applied to be the co-right holder of Patent No. 201410505667.7 “Breeding Method of Separating Male and Female Lines of Pink Shell Egg Laying Chickens”, the Plaintiff agrees to disclose the technical scheme of the said patent to the public. At the same time, the Plaintiff company should have foreseen and borne the legal consequences of its behavior, namely, that its “Dawu Jinfeng” egg-laying hens technical program lost the condition of “not being known to the public”, and thus did not constitute a technical secret protected by the Anti-unfair Competition Law.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. None of the parties filed an appeal.
Typical significance
This case involves the technical secret of the red feathered egg chicken breed, because the new breed of livestock and poultry in our country does not belong to the type of statutory intellectual property rights, the practice is usually protected by patents or technical secrets. This case makes clear the conflict between the protection of technical secrets and patent protection, the patent system to the public for protection, technical secrets to the secrecy as a necessary condition, so for the same technical program, the two ways of protection can not be both, the need to make trade-offs. The case reveals that the planting enterprises should attach great importance to the early intellectual property rights reasonable layout, early layout of the later results of transformation, intellectual property rights will have a decisive impact.
Case 5: Patent infringement of the invention of “Pure white true shimeji mushroom strain”
Case Summary
The Plaintiff is the patentee of the patent number 201310030601.2, the name of the “pure white shimeji mushroom strain” invention patent (referred to as the patent in question). The Plaintiff claimed that the Defendants’ production and sale of the product infringes its patent, so requested the court to stop infringing and compensation.
In the trial, the parties agreed, the court organized the two sides to re-purchase the bacterial products as samples for identification agencies. However, the parties disagreed on whether to adopt the “whole gene sequence test” or the “gene-specific fragment test” for identification.
The Beijing Intellectual Property Court held in the first instance that, with regard to the gene sequence comparison of microorganisms, not only is it a comparison of how much of the gene sequences of the two are the same or similar, but there is also the genetic interpretation and analysis after the sequencing of the gene sequences, and that due to the complexity of the genome structure as well as the bias during the sequencing process, it is indeed difficult to determine whether they are the same microorganisms on the basis of the magnitude of the degree of similarity between the two. Therefore, the court held that due to the possibility of gene mutation, the whole gene sequence testing method was uncertain and insufficient to correctly reflect whether the accused infringing product and the patent in question were the same microorganism. On this basis, it is reasonable for the appraisal organization to adopt the appraisal method of gene-specific fragment detection. According to the conclusion of the appraisal opinion, the accused infringing products and the samples preserved by the patent in question belonged to the same strain of bacteria, so the accused infringing products had fallen into the scope of protection of the patent in question.
The Beijing Intellectual Property Court ruled in the first instance that: 1) the Defendant, an agricultural technology company and an agricultural technology company, should immediately stop manufacturing and selling products infringing the patent in question; 2) the Defendant, an agricultural technology company, should compensate the Plaintiff company for the loss of RMB 1,000,000 and the reasonable expenses of RMB 84,175; 3) the Defendant, a technology company, should compensate the Plaintiff for the loss of RMB 1,000,000 and the reasonable expenses of RMB 84,175; 4) Dismissing the Plaintiff’s other claims.
Both Defendants appealed the first instance judgment to the Supreme People’s Court. The Supreme People’s Court finally rejected the appeal and upheld the original judgment.
Typical significance
This case involves a patent for the invention of a pure white shimeji mushroom strain variety, and the judgment adopts the selection of identification methods for shimeji mushrooms with two-cell nuclei, ruling out the whole gene sequence detection method and adopting the gene-specific fragment detection method. The case is clear that based on genetic mutation and other factors, the whole gene sequence detection method has uncertainty, and is not sufficient to correctly reflect whether the accused infringing product and the patent in question are the same kind of microorganism.
Case 6: Re-examination of the rejection of a patent application for the invention “methods and compositions for genetic control of insect infestation in plants”
Case Summary
The Plaintiff applied to the CNIPA for a patent on “methods and compositions for genetic control of insect infestation in plants”. The CNIPA issued decision of re-examination No. 114549, rejecting the application on the ground that it did not meet the requirements of Article 26(4) of the Patent Law of the People’s Republic of China https://www.cnipa.gov.cn/art/2020/11/23/art_97_155167.html. The Plaintiff filed an administrative lawsuit with the Beijing Intellectual Property Court against the decision. The Court held that the technical program (b) in claim 1 adopts the homology limitation of “a sequence having at least 90% identity to SEQ ID NO:818 of 988bp”, and the technical program (c) in claim 1 adopts the homology limitation of “a nucleic acid sequence of at least 90% identity to the nucleic acid sequence of SEQ ID NO. 818 of 988bp”: 818, wherein a Coleoptera plant pest ingests a double-stranded ribonucleotide sequence comprising at least one strand complementary to said fragment to inhibit the growth of said pest” in technical solution (c) of claim 1 in the “sequence component + function” limitation.
On the premise of objectively analyzing the size of the scope of protection of the claims, the judgment comprehensively considered the technical background of the relevant fields, the record of specific embodiments in the specification and other evidence in the case, and held that the experimental data recorded in the specification was insufficient to verify the technical effects claimed by the patent in question, and did not comply with the provisions of Article 26(4) of the Patent Law of the People’s Republic of China.
The Beijing Intellectual Property Court ruled in the first instance that the Plaintiff’s claim was rejected. The Plaintiff appealed to the Supreme People’s Court, the Supreme People’s Court rejected the appeal and upheld the original judgment.
Typical significance
This case relates to a polynucleotide sequence, which is ingested by plant pests of Coleoptera to inhibit the growth of the pests. This case comprehensively considers the technical background of the relevant fields, the record of specific embodiments in the specification and other evidence in the case, analyzes the supportive issues of patents of biological sequences using different drafting styles, and provides guidelines for planting enterprises to apply for patent protection.
Summary
The cases released by the Beijing Intellectual Property Court clearly define the rules of adjudication and strengthen the industry guidelines, reflecting the court’s firm attitude to increase the infringement sanctions and effectively protect and incentivize the PVR’s original innovation. At the same time, the operation of the specialized trial mechanism for the PVR of the Beijing IP Court reflects the importance that the Beijing IP Court attaches to the judicial protection of intellectual property for PVR, which helps to improve the level of the relevant cases, help the planting enterprises to innovate in science and technology, and build a pattern of intellectual property protection for PVR.