China’s Supreme Court Clarifies PVR Liability for Sales After Expiry of Unlawfully Propagated Seeds
Published 18 August 2026
Yu Du
On 3 April 2026, the Supreme People’s Court of China (SPC) issued its final judgment in a plant variety rights (PVR) infringement case concerning the wheat variety “Jimai 22” (Case No. [2026] Zui Gao Fa Zhi Min Zhong 51 - the full decision is available on China Judgements Online at https://wenshu.court.gov.cn/ after logging in). The Court held that seeds unlawfully produced or propagated during the PVR term do not become lawful merely because the right later expires, and that subsequent sales of such seeds may also constitute infringement.
Case History
“Jimai 22” is a common wheat variety. Its PVR application was filed in 2006, and the variety was granted protection on 1 May 2009 under PVR No. CNA20060015.X, with a 15-year term expiring on 30 April 2024. Company A was the exclusive licensee authorized to exploit the variety and enforce the right.
On 3 October 2023, Company B entered into a wheat seed propagation and purchase agreement covering 700 mu of production and an expected purchase volume of 280,000 kg. In May 2024, shortly after the PVR expired, Company B applied to add “Jimai 22” to its seed production and operation licence.
On 21 August 2024, notarized purchases were made of wheat seed labelled “Jimai 22”. The packaging displayed Company B’s name, trademark and seed production licence number. Company B denied producing or selling the seeds.
Company A filed suit before the Jinan Intermediate People’s Court on 15 October 2025. The first-instance judgment was issued on 29 December 2025. Both parties appealed, and the SPC accepted the case on 2 February 2026 and issued its final judgment on 3 April 2026.
First-Instance Judgment
The Jinan Intermediate People’s Court first found that Shandong Luyan, as the exclusive licensee authorized by the PVR owner, had standing to bring the infringement action.
On infringement, the court considered the markings on the purchased seed bags significant. The packaging identified “Jimai 22”, Company B’s corporate name, its registered trademark and its seed production licence number. Company B denied producing or selling the seeds but failed to submit sufficient contrary evidence. The court therefore found that Company B had produced and propagated “Jimai 22” without authorization while the PVR remained in force.
The first-instance court, however, drew a distinction between production and subsequent sale. It considered that the seeds had been produced during the protection period but sold after expiry. It therefore treated the production and propagation as infringing, while regarding the post-expiry sale itself as non-infringing, although the profits from that sale could still serve as a reference when assessing the gains attributable to the infringing production.
Taking into account the expiry of the PVR, the commercial importance of “Jimai 22”, Company B’s role as producer, and Shandong Luyan’s enforcement expenses, the court awarded RMB 50,000 in damages and reasonable costs.
Both parties appealed. Shandong Luyan argued principally that RMB 50,000 substantially understated the scale and seriousness of the infringement. It relied in particular on the 700-mu production arrangement, the contemplated output of 280,000 kilograms, and the market and licensing value of “Jimai 22”. Company B, by contrast, denied producing the seeds and argued that the PVR had already expired and, in any event, had ceased to be effective because annual fees allegedly had not been paid after 2016.
SPC Judgment
The SPC upheld the finding that the accused seeds were produced and sold by Company B. The packaging and notarized purchase evidence made Company B’s involvement highly probable, while Company B failed to provide sufficient contrary evidence.
More importantly, the SPC disagreed with the first-instance court on the effect of expiry.
The Court emphasized that seed production must be assessed in light of the seasonal and biological growth cycle of the crop. Based on the normal production cycle of “Jimai 22”, seeds purchased in August 2024 must have entered production no later than approximately October 2023, when the PVR was still valid. The October 2023 propagation agreement further supported this conclusion.
The SPC therefore held that:
Seeds produced or propagated without authorization during the PVR term do not become lawful upon expiry of the right. Their subsequent sale is a natural continuation of the earlier infringement and may itself constitute infringement.
The SPC also increased damages. Using the agreed production volume of 280,000 kg and an estimated profit of RMB 0.5 per jin, the Court calculated potential infringement profits at approximately RMB 280,000. As Company A had claimed RMB 200,000, the Court awarded the full RMB 200,000 requested.
The SPC revoked the first-instance judgment, ordered Company B to pay RMB 200,000, and dismissed Company B’s appeal.
Legal Analysis
The judgment is noteworthy in at least three respects.
First, it introduces a practically important full-chain approach to PVR enforcement. The legal status of propagating material cannot necessarily be assessed solely by asking whether the PVR remained in force on the date of sale. Where unlawful production or propagation occurred during the protection period, subsequent expiry does not erase the legal consequences of that infringement.
Second, the SPC expressly incorporated the biological and seasonal characteristics of plant production into the evidentiary analysis. For crops with identifiable planting, growing and harvesting cycles, the timing of production can be inferred from the date on which seed becomes commercially available. This is particularly significant because right holders often discover suspected infringement only at the distribution or retail stage, long after the actual propagation took place.
Third, the case shows a relatively evidence-driven approach to damages. Rather than relying only on a discretionary statutory damages figure, the SPC reconstructed the likely economic benefit from documentary evidence concerning production acreage, expected seed output, market prices and an estimated profit margin. This may encourage PVR owners to collect evidence not only of individual infringing sales, but also of upstream production arrangements, planting acreage, procurement contracts, licence filings and seed production records.
Comment
The case strengthens protection against attempts to exploit the period immediately before and after expiry of a plant variety right. For breeders and seed companies, its practical message is clear: the relevant question is not only when the seed was sold, but when it was produced and propagated. Evidence concerning production cycles and upstream seed-production activities may therefore be decisive in both establishing infringement and assessing damages.
Case History
“Jimai 22” is a common wheat variety. Its PVR application was filed in 2006, and the variety was granted protection on 1 May 2009 under PVR No. CNA20060015.X, with a 15-year term expiring on 30 April 2024. Company A was the exclusive licensee authorized to exploit the variety and enforce the right.
On 3 October 2023, Company B entered into a wheat seed propagation and purchase agreement covering 700 mu of production and an expected purchase volume of 280,000 kg. In May 2024, shortly after the PVR expired, Company B applied to add “Jimai 22” to its seed production and operation licence.
On 21 August 2024, notarized purchases were made of wheat seed labelled “Jimai 22”. The packaging displayed Company B’s name, trademark and seed production licence number. Company B denied producing or selling the seeds.
Company A filed suit before the Jinan Intermediate People’s Court on 15 October 2025. The first-instance judgment was issued on 29 December 2025. Both parties appealed, and the SPC accepted the case on 2 February 2026 and issued its final judgment on 3 April 2026.
First-Instance Judgment
The Jinan Intermediate People’s Court first found that Shandong Luyan, as the exclusive licensee authorized by the PVR owner, had standing to bring the infringement action.
On infringement, the court considered the markings on the purchased seed bags significant. The packaging identified “Jimai 22”, Company B’s corporate name, its registered trademark and its seed production licence number. Company B denied producing or selling the seeds but failed to submit sufficient contrary evidence. The court therefore found that Company B had produced and propagated “Jimai 22” without authorization while the PVR remained in force.
The first-instance court, however, drew a distinction between production and subsequent sale. It considered that the seeds had been produced during the protection period but sold after expiry. It therefore treated the production and propagation as infringing, while regarding the post-expiry sale itself as non-infringing, although the profits from that sale could still serve as a reference when assessing the gains attributable to the infringing production.
Taking into account the expiry of the PVR, the commercial importance of “Jimai 22”, Company B’s role as producer, and Shandong Luyan’s enforcement expenses, the court awarded RMB 50,000 in damages and reasonable costs.
Both parties appealed. Shandong Luyan argued principally that RMB 50,000 substantially understated the scale and seriousness of the infringement. It relied in particular on the 700-mu production arrangement, the contemplated output of 280,000 kilograms, and the market and licensing value of “Jimai 22”. Company B, by contrast, denied producing the seeds and argued that the PVR had already expired and, in any event, had ceased to be effective because annual fees allegedly had not been paid after 2016.
SPC Judgment
The SPC upheld the finding that the accused seeds were produced and sold by Company B. The packaging and notarized purchase evidence made Company B’s involvement highly probable, while Company B failed to provide sufficient contrary evidence.
More importantly, the SPC disagreed with the first-instance court on the effect of expiry.
The Court emphasized that seed production must be assessed in light of the seasonal and biological growth cycle of the crop. Based on the normal production cycle of “Jimai 22”, seeds purchased in August 2024 must have entered production no later than approximately October 2023, when the PVR was still valid. The October 2023 propagation agreement further supported this conclusion.
The SPC therefore held that:
Seeds produced or propagated without authorization during the PVR term do not become lawful upon expiry of the right. Their subsequent sale is a natural continuation of the earlier infringement and may itself constitute infringement.
The SPC also increased damages. Using the agreed production volume of 280,000 kg and an estimated profit of RMB 0.5 per jin, the Court calculated potential infringement profits at approximately RMB 280,000. As Company A had claimed RMB 200,000, the Court awarded the full RMB 200,000 requested.
The SPC revoked the first-instance judgment, ordered Company B to pay RMB 200,000, and dismissed Company B’s appeal.
Legal Analysis
The judgment is noteworthy in at least three respects.
First, it introduces a practically important full-chain approach to PVR enforcement. The legal status of propagating material cannot necessarily be assessed solely by asking whether the PVR remained in force on the date of sale. Where unlawful production or propagation occurred during the protection period, subsequent expiry does not erase the legal consequences of that infringement.
Second, the SPC expressly incorporated the biological and seasonal characteristics of plant production into the evidentiary analysis. For crops with identifiable planting, growing and harvesting cycles, the timing of production can be inferred from the date on which seed becomes commercially available. This is particularly significant because right holders often discover suspected infringement only at the distribution or retail stage, long after the actual propagation took place.
Third, the case shows a relatively evidence-driven approach to damages. Rather than relying only on a discretionary statutory damages figure, the SPC reconstructed the likely economic benefit from documentary evidence concerning production acreage, expected seed output, market prices and an estimated profit margin. This may encourage PVR owners to collect evidence not only of individual infringing sales, but also of upstream production arrangements, planting acreage, procurement contracts, licence filings and seed production records.
Comment
The case strengthens protection against attempts to exploit the period immediately before and after expiry of a plant variety right. For breeders and seed companies, its practical message is clear: the relevant question is not only when the seed was sold, but when it was produced and propagated. Evidence concerning production cycles and upstream seed-production activities may therefore be decisive in both establishing infringement and assessing damages.