China Releases Guiding Cases for Judicial Protection of Plant Variety Rights
Published 27 March 2025
Xia Yu
On 21 March 2025, the Supreme People’s Court of the People’s Republic of China (“SPC”) released the fifth batch of typical cases of judicial protection of intellectual property rights of plant varieties. This batch of typical cases involves 15 cases selected from the cases concluded by 13 courts across the country in 2024, including new plant variety-related infringements, unfair competition, and contract disputes. The varieties involved include major crop varieties such as rice, wheat, corn, and soybeans, as well as fruit and flower varieties such as apples, pineapples, and roses. These typical cases are important references for understanding the latest developments in the Chinese judicial system regarding protecting plant variety intellectual property rights.
Typical Case 1: An infringement case involving the new rice plant variety of “Gangyou 188”, Gangmou Seed Industry Company vs. Chongqing Nongmou Seed Industry Company, and Lei Mou; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 3165 – This case clarifies that the transferee of the approved variety shall bear legal responsibility for its production and operation of the approved variety, which constitutes infringement of the variety right. The second instance judgment is of reference significance in clarifying the legal nature of the approved variety, explaining the method of determining infringement, and reasonably determining compensation.
Gangmou Seed Industry Company (“Gangmou Company”) is the exclusive licensee of the new rice plant variety “Gangyou 188”. It filed an infringement lawsuit, claiming that the “Gangyou 88” seeds produced and sold by Chongqing Nongmou Seed Industry Company (“Nongmou Company”) and sold by Lei Mou infringed its variety rights, and requested that the two companies be ordered to stop the infringement, Nongmou Company compensate for losses and reasonable expenses totaling more than RMB 15.14 million (Equivalent to US$ 2.08 million), and Lei Mou bear joint and several liability for reasonable costs. Nongmou Company argued that it should not bear compensation liability because it had fulfilled its reasonable review obligations, such as it had obtained the production and operation rights of the approved variety “Gangyou 88” through legal transfer, and at the time of transfer, it had conducted an authenticity appraisal of the “Gangyou 88” it operated and the approved standard sample of the variety. After the administrative agency and the first instance court commissioned appraisals respectively, the alleged infringing seeds “Gangyou 88” produced and sold by Nongmou Company and sold by Lei Mou were identical to the standard sample of the approved variety and were similar to the authorized variety “Gangyou 188”. The court of first instance determined that Nongmou Company and Lei Mou did not constitute infringement based on the fact that the alleged infringing seed “Gangyou 88” was identical to its approved standard sample. Gangmou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that there are differences between variety approval and variety authorization in terms of application procedures and system purposes. Whether the alleged infringing seeds are identical to the standard samples of the approved varieties has no relevance to whether they are the same as the characteristics and properties of the authorized varieties for protection. Unless otherwise provided by laws and regulations, the production, reproduction, and sale of authorized variety reproduction materials without the permission of the variety right holder constitutes infringement of the variety right. The alleged infringing seeds belong to an approved variety. When the alleged infringer obtains the approved variety through transfer, he can claim the corresponding contractual liability from the transferor based on the contractual relationship. However, it cannot use this to counter the infringement claim of the variety right holder. Regarding the multiple license transfers of the infringing approved variety, unless there is evidence that the alleged infringer did not operate the seeds, the infringement time can be calculated from the date of his transfer of the variety in principle. Based on this, the second instance changed the judgment that Nongmou Company and Lei Mou stopped the infringement, Nongmou Company compensated for the losses and reasonable expenses for rights protection totaling more than RMB 5.96 million (Equivalent to US$ 820,692), and Lei Mou bore reasonable expenses for rights protection of RMB 6,288 (Equivalent to US$ 866).
Typical Case 2: A case on the temporary protection period royalties and infringement of the new variety of Scilate apple plant, Yingmou International Company vs. Youmou Agricultural Company; the first instance, Lanzhou Intermediate People’s Court of Gansu Province (2023) Gan 01 Zhi Min Chu No. 9; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 3113 – This case regards the act of selling harvested materials as a natural extension of the production and reproduction of propagation materials. When the infringer mainly obtains illegal profits by selling harvested materials, the sales profit of the harvested materials is used as the basis for determining the amount of compensation.
The Scilate apple variety was selected and bred by a research institute company in New Zealand, which obtained the new plant variety right in China. Yingmou International Company ("Yingmou Company") is an interested party in the variety right. It sued and claimed that Youmou Agricultural Company ("Youmou Company") had produced, propagated, and sold Scilate propagation materials without permission since 2018 and sold a large number of apple fruits harvested from them, which constituted infringement. It requested an order to stop the infringement, inactivate the infringing materials, and apply punitive damages of RMB 5 million (Equivalent to US$ 688,500). Youmou Company believes that it does not constitute infringement because planting fruit trees does not belong to production and reproduction, and the purpose of planting fruit trees is only to obtain apple fruits rather than to cultivate seedlings. Even if it is determined that it constitutes infringement, the fruit trees should not be ordered to be inactivated, and the amount of compensation should not be determined by the sales volume of apple fruits. After identification, the Envy fruit tree branches purchased by Yingmou Company from Youmou Company were identical to the Scilate variety. Youmou Company did not provide evidence that its fruit trees have a legal source.
The Lanzhou Intermediate People’s Court of Gansu Province ruled at first instance that Youmou Company should inactivate all infringing propagation materials (plants, branches, etc.), and by applying double punitive damages, ordered Youmou Company to compensate for losses, temporary protection period usage fees and reasonable expenses totaling RMB 3.3 million (Equivalent to US$ 454,410). Youmou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that Youmou Company must have propagated a large number of saplings and branches in the process of planting and obtaining the Scilate apple fruits. Based on the evidence in this case, it can be reasonably inferred that it has been engaged in the continuous production and propagation of authorized variety propagation materials. Youmou Company planted the Scilate variety seedlings for profit, sold a large number of apple fruits, and expanded reproduction. Therefore, its planting activities should be identified as production and reproduction activities. It not only produced and bred apple seedlings but also sold apple fruits. The act of selling harvested materials is a natural extension of producing and breeding authorized varieties of breeding materials in terms of time and obtaining illegal benefits and should be considered as a whole. The principle of comprehensive compensation should be followed when determining the amount of compensation. The profit obtained from the sale of harvested materials should be used as a reference for the profit of infringement. Inactivating the propagation materials of infringing varieties is an effective measure to stop infringement. Compared with the method of eradicating seedlings and replanting them, the right holder’s claim that only inactivating the scion and grafting the scion of non-infringing varieties can better take into account the interests of all parties and should be supported. The appeal was dismissed, and the original judgment was upheld.
Typical Case 3: An infringement case involving the new variety of Rosa rugosa plant called Tianshan Xiangyun, Xinjiang Huamou Technology Company vs. Xinjiang Mou Seedling Farm; the second instance, the SPC (2024) SPC Zhi Min Zhong No. 665 – This case clearly states that the principle of exhaustion of rights does not apply to the act of re-breeding and selling the propagation materials that have been sold. The second-instance judgment supported the claim of the variety right holder to calculate the infringement damages based on the difference between the variety right holder's selling price and the infringer’s selling price when the infringer refused to submit financial books and other evidence.
Xinjiang Huamou Technology Company (“Huamou Company”) is the owner of the new variety of Rosa rugosa plants “Tianshan Xiangyun”. In 2022, Huamou Company notarized the purchase of seedlings that infringed the variety rights of “Tianshan Xiangyun” from Xinjiang Mou Seedling Farm (“Seedling Farm”). On 28 May 2023, Seedling Farm signed a seedling ordering agreement with Changji Mou Cultivation Base (“Cultivation Base”), agreeing to sell 8,000 “Tianshan Xiangyun” seedlings. Huamou Company filed an infringement lawsuit, claiming that the Seedling Farm had continued to infringe from 2014 to 2023, and requested that the Seedling Farm be ordered to stop the infringement and compensate for losses and reasonable expenses totaling RMB 5 million (Equivalent to US$ 688,500). Huamou Company sells the “Tianshan Xiangyun” seedlings at a price of RMB 320-360 per plant (Equivalent to US$ 44.06-49.57 per plant), and the Seedling Farm sells it at a price of RMB 120-160 per plant (Equivalent to US$ 16.52-22.03 per plant). Huamou Company claims that the average of the difference between its sales price of the “Tianshan Xiangyun” seedlings and the sales price of the Seedling Farm is its sales profit. The Seedling Farm argued that it did not constitute infringement based on the principle of exhaustion of rights. The Seedling Farm, a public welfare institution, claimed that it had been cutting branches of rose varieties, such as “Tianshan Xiangyun”, from municipal parks for breeding since 2014. In 2021, it uniformly named the 36 rose varieties it cultivated as Tianshan Rose, and the “Tianshan Xiangyun” seeding is only one of them. The Seedling Farm believes that its behavior belongs to scientific research and development, and the seedlings it obtained were cut from municipal parks or introduced from other places. The work summary submitted by it in 2021 shows that 10,500 “Tianshan Xiangyun” cuttings were planted in 2021, and 4,000 survived. The Origin Quarantine Certificate of the Seedling Farm in 2022 and 2023 records that the number of the Tianshan Rose, including the “Tianshan Xiangyun”, is 20,000 and 50,000, respectively. The first instance court determined that the production, breeding, and sales of the Seedling Farm exceeded the scope of scientific research and had a profit-making purpose, and the infringement was established. It was ordered to stop the infringement and pay RMB 200,000 (Equivalent to US$ 27,540) in compensation. Huamou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that the application of the principle of exhaustion of variety rights is based on the premise that the authorized variety propagation materials are sold by the variety right holder or the unit or individual authorized by the variety right holder, and only applies to the subsequent production, propagation and sales of the legally sold authorized variety propagation materials themselves, but not to the re-propagation and sale of the sold propagation materials. The Seedling Farm constitutes infringement because it has not proved that its breeding behavior belongs to the use of authorized varieties to cultivate new varieties, and large-scale breeding is inconsistent with the scale required for scientific research. At the same time, it has sales for profit. The Seedling Farm admitted that it cut and propagated the “Tianshan Xiangyun” seedlings at the end of 2014 and is still producing and breeding them. Combined with the notarial certificates involved in the case, relevant agreements, work summaries, and other evidence, it can be determined that it has continued to infringe from at least 2014 to 2023. Considering that the price of goods sold to the outside world is bound to be higher than the production cost, the Seedling Farm refused to provide relevant account books and other information, so the average value of the difference between the price of the “Tianshan Xiangyun” sold by Huamou Company and the sales price of the Seedling Farm, that is RMB 200 per plant (Equivalent to US$ 27.54), was used as the basis for determining the losses suffered by the right holder due to infringement. Based on the evidence in the case, the number of alleged infringing seedlings produced and propagated by the Seedling Farm in 2021 was no less than 4,000 and no more than 8,000 in 2023. Based on this, by selecting the average number of the two years, it can be determined that the number of alleged infringing seedlings produced and propagated by the Seedling Farm from 2021 to 2023 was 6,000 per year. The damages calculated based on these three years alone has exceeded RMB 3 million (Equivalent to US$ 413,100) requested by Huamou Company in its appeal. Therefore, the second instance changed the judgment to fully support the amount of compensation requested by Huamou Company in its appeal.
Typical Case 4: An infringement case of the new rice plant variety “Jinjing 818”, Jiangsu Jinmou Seed Industry Company vs. Xuzhou Dimou Agricultural Materials Company, Zhao Mou, Zhao Moubao; the first instance, Nanjing Intermediate People’s Court of Jiangsu Province (2022) Su 01 Min Chu 2019; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 2896 – This case is a typical example of severely cracking down on the hidden infringement of using online platforms to organize seed transactions and the persons directly responsible. The case determined that the actual controller of the company who played an organizing and decision-making role in the occurrence of the infringement and other persons who received the company’s infringement proceeds with their accounts and directly participated in the infringement constituted joint infringement with the company, and ordered them to bear joint and several liability based on the circumstances of their infringement and the extent of their role.
Jiangsu Jinmou Seed Industry Company (“Jinmou Company”) is the licensee of the exclusive implementation license for the new rice plant variety “Jinjing 818”. In May 2020, Xuzhou Dimou Agricultural Materials Company (“Dimou Company”) was ordered to stop infringement and bear punitive compensation liability for using white bags and irregular packaging to sell infringing seeds without the permission of the “Jinjing 818” variety right holder. Dimou Company did not comply with the above judgment, and Jinmou Company applied for compulsory execution. During the execution process, the court added Zhao Mou, the sole shareholder and legal representative of Dimou Company, as the person to be executed. Since January 2021, Zhao Mou has successively released seed supply information, contact numbers of Zhao Moubao, the heads of various sales areas of Dimou Company and its accountant, in WeChat, and organized offline ordering activities. Starting from 29 November 2021, a farmer communicated with the sales staff of Dimou Company about purchasing the alleged infringing seeds and paid the deposit and the remaining amount to Zhao Moubao’s account. Jinmou Company filed a lawsuit, requesting that Dimou Company, Zhao Mou, and Zhao Moubao stop infringing and jointly compensate for losses and reasonable expenses for rights protection totaling RMB 3 million (Equivalent to US$ 413,100). During the first trial, it was determined that the alleged infringing seeds were very similar or identical to the “Jinjing 818” variety.
The Nanjing Intermediate People’s Court of Jiangsu Province held at first instance that after Dimou Company was ordered to stop infringing in the previous case, it once again organized seed transactions through WeChat and infringed. Zhao Mou, the legal representative and sole shareholder of Dimou Company, used WeChat to release seed supply information and organized offline ordering activities, playing a key and core organizational role in seed trading, and jointly infringed with Dimou Company. After Dimou Company was forced to execute, Zhao Moubao, who participated in seed sampling, collected transaction funds with his account. He, Dimou Company, and Zhao Mou were also jointly infringing. The court ordered the three defendants to stop the infringement, and ordered Dimou Company and Zhao Mou to jointly compensate Jinmou Company for economic losses and reasonable expenses totaling RMB 1.8 million (Equivalent to US$ 247,860), and Zhao Moubao was jointly liable for RMB 350,000 (Equivalent to US$ 48,195) of it. The three defendants were dissatisfied and appealed. The SPC rejected the appeal in its second-instance judgment and upheld the original judgment.
Typical Case 5: An infringement case involving the new variety of fruit vine “Hongyunlai”, Shanghai Mou Plant Company vs. Guangzhou Mou Agricultural Science Company; the second instance, the SPC (2022) SPC Zhi Min Zhong No. 1362 – This case is a typical case of exploring the use of MNP markers for identity identification for specific crops that have not yet established national standards or industry standards for molecular marker detection. Based on the scientific nature and repeatability of the identification method, the second instance judgment determined that the identification opinion can be used as evidence to determine that the alleged infringing seedlings are identical to the authorized variety, thereby avoiding the lack of identification standards for specific crop variety rights that cannot obtain judicial protection and relief.
Shanghai Mou Plant Company (“Plant Company”) and Shanghai Xianmou Company are the variety rights holders of the new fruit vine variety “Hongyunlai”. In January 2020, the Plant Company sent the “Xinhongxing” seedlings sold by Guangzhou Mou Agricultural Science Company (“Agricultural Science Company”) and obtained through notarization and preservation and the “Hongyunlai” authorized variety samples stored in the Plant New Variety Testing (Shanghai) Branch Center to Ningbo Mou Technology Company (“Technology Company”) for testing. On 13 April 2020, the Technology Company issued a technical appraisal opinion (“Opinion”), which identified that the two varieties were highly similar because their AFLP fingerprints were 95.08% similar. The Plant Company filed a lawsuit, requesting that the Agricultural Science Company be ordered to stop the infringement and compensate for the losses. The first instance judgment dismissed all the claims of the Plant Company, and did not adopt the Opinion because there was no national standard or industry standard for molecular marker detection of the varieties involved. The Plant Company was dissatisfied and filed an appeal. In the second instance, the SPC approved the Plant Company’s application for identification and, with the consent of both parties, designated a testing agency to conduct the identification. The testing agency used the MNP labeling method to test the varieties and issued a test report stating that the genetic similarity between the sample submitted and the control sample was 99.91%, and the identification result was very similar or the same variety.
The SPC held in the second instance that it should review whether the molecular marker detection method for plant variety identification is scientific and reliable. When the molecular marker detection method for a specific plant variety has not yet established a national standard or industry standard, the identification results made by qualified identification institutions and appraisers concerning other relevant standards, such as the identification method can scientifically and accurately distinguish different varieties and has sufficient scientific basis and repeatability, can be used as evidence to determine whether the alleged infringing plant and the authorized variety are identical. The MNP Marking Method for Plant Variety Identification (“MNP Marketing Method”) has been established as a national standard and can be applied to the identification of original varieties, substantially derived varieties, and authenticity of varieties such as rice, corn, and soybean. The identification of the identity of pineapple varieties of the genus Pyrifera can be carried out by the MNP Marking Method. After identification, the alleged infringing seedlings “Xinhongxing” and the authorized variety “Hongyunlai” are very similar or identical. The Agricultural Science Company did not submit rebuttal evidence, so it can be determined that the alleged infringing seedlings and the authorized variety “Hongyunlai” are identical. Therefore, the Agricultural Science Company was sentenced to stop the infringement and compensate for losses and reasonable expenses totaling RMB 1.075 million (Equivalent to US$ 148,027.5).
Typical Case 6: An infringement case regarding the new corn plant variety “Jingnuo 6”, Beijing Mou Breeding Company vs. Guangxi Mou Seed Industry Company, Shenzhen Mou Seed Industry Company, and Mou Seed Store; the first instance, Shenzhen Intermediate People’s Court of Guangdong Province (2022) Yue 03 Min Chu No. 4649; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 1790 – At present, there is no universal standard for the identification of the parentage of plant varieties in China. Therefore, how to prove that the hybrid variety in question is produced by using the authorized variety is still a difficult problem in judicial practice. This case achieved the protection of the legitimate rights and interests of the parent variety rights holders by reasonably considering the rules of crop breeding, comprehensively analyzing the results of the parent-offspring relationship identification between the parent varieties and the hybrid varieties, as well as the authenticity identification results of the hybrid varieties, and reasonably allocating the burden of proof.
Beijing Mou Scientific Academy is the owner of the variety rights of the new corn plant variety “Jingnuo 6”, and Beijing Mou Breeding Company (“Breeding Company”) is its exclusive licensee. “Jingkenuo 2000” is a hybrid corn variety produced with “Jingnuo 6” and “Bainuo 6” as parents. The Breeding Company filed a lawsuit, requesting that Guangxi Mou Seed Industry Company (“Guangxi Company”), Shenzhen Mou Seed Industry Company (“Shenzhen Company”), and Mou Seed Store (“Seed Store”) stop using the “Jingnuo 6” variety to produce the alleged infringing seed “Shenkenuo 8”, and compensate for the losses.
The first instance court conducted authenticity appraisals on the alleged infringing seeds “Shenkenuo 8” and “Jingkenuo 2000” and conducted parent-child relationship appraisals on the alleged infringing seeds “Shenkenuo 8” and “Jingnuo 6”. The appraisal results showed that the alleged infringing seeds “Shenkenuo 8” and “Jingkenuo 2000” were similar varieties and were suspected to have a parent-child relationship with “Jingnuo 6”. Based on the appraisal results, the court determined that the alleged infringing seed “Shenkenuo 8” was produced by reusing the authorized variety “Jingnuo 6” as the parent, and ordered the three defendants to stop the infringement, Guangxi Company to compensate for the loss of RMB 300,000 (Equivalent to US$ 41,310) and reasonable expenses of RMB 50,000 (Equivalent to US$ 6,885), Shenzhen Company to compensate for the loss of RMB 100,000 (Equivalent to US$ 13,770), and Seed Store to compensate for the loss of RMB 20,000 (Equivalent to US$ 2,754). Guangxi Company and Shenzhen Company were dissatisfied and filed an appeal.
The SPC held in the second instance that, given the lack of national or industry standards for the identification of the parent-offspring relationship of plant varieties, when determining whether a specific hybrid is produced and propagated by repeatedly using the authorized variety as the parent, the parent-offspring relationship identification opinion made by the identification agency about the variety authenticity identification standard can be used as the basis for determining the facts. The identification opinion in this case can serve as preliminary evidence to determine that the alleged infringing seed “Shenkenuo 8” repeatedly used the authorized variety “Jingnuo 6” propagation material in the production process. At the same time, combined with the identification opinion that the hybrid “Jingkenuo 2000” produced with “Jingnuo 6” as the mother parent and the alleged infringing hybrid “Shenkenuo 8” are similar varieties, it can be determined that the “Shenkenuo 8” variety was likely produced by using the “Jingnuo 6” propagation material as the parent. Guangxi Company and Shenzhen Company failed to provide evidence to prove that the alleged infringing seeds have a legitimate parental source, so their claim of non-infringement is not supported. The court, therefore, ruled to dismiss the appeal and uphold the original judgment.
Typical Case 7: An infringement case of the new corn plant variety “Xianyu 508”, Shandong Mou Seed Industry Company vs. Shangxi Mou Agricultural Company, and Qi County Mou Distribution Department; the second instance, the SPC (2024) SPC Zhi Min Zhong No. 819 – The information system of the seed administration department stores data and information related to seed production, sales and others. The reasonable use of relevant data and information can effectively track the infringing subject and the scale of infringement. This case clarifies the use of the registered data of the seed industry's big data platform (“Platform”) in the calculation of damages for variety rights infringement. By comprehensively considering the registered data of the Platform and the infringement involved in the case, the sales volume of infringing seeds can be reasonably estimated, and the amount of infringement compensation can be calculated.
Shandong Mou Seed Industry Company (“Seed Company”) has the right to file a civil lawsuit in its name for infringement of the variety right of “Xianyu 508” under the authorization from the variety right holder. After testing, the allegedly infringing seeds “Chenqiang 808”, “Jinongyu 885,” and “Jinke 757” are very similar or identical to the authorized varieties of “Xianyu 508”. The Seed Company filed an infringement lawsuit, requesting that Shangxi Mou Agricultural Company (“Agricultural Company”) and Qi County Mou Distribution Department (“Distribution Department”) stop the infringement and compensate for losses and reasonable expenses totaling RMB 550,000 (Equivalent to US$ 75,735). The Seed Company requested that the amount of compensation be determined based on the profits of the Agricultural Company’s infringement and submitted the sales data of “Chenqiang 808”, “Jinongyu 885,” and “Jinke 757” corn seeds registered on the Platform from 2018 to 2021. Meanwhile, it claimed that the production and sales volume of infringing seeds should be determined by the number of the Agricultural companies registered on the Platform. The first instance court ordered the Agricultural Company and the Distribution Department to stop the infringement, the Agricultural Company to compensate for the loss of RMB 30,000 (Equivalent to US$ 4,131) and reasonable expenses of RMB 16,000 (Equivalent to US$ 2,203), and the Distribution Department to pay reasonable costs of RMB 4,000 (Equivalent to US$ 551). Both the Seed Company and the Agricultural Company were dissatisfied and filed an appeal.
The SPC held in the second instance that the alleged infringer registered production and operation on the Platform as a producer. In principle, it can be presumed that the registered sales quantity is the production and sales quantity of the infringing seeds when the name of the alleged infringing seeds is the same as the registered variety name and the production time of the alleged infringing seeds is close to the registration time in the Platform. Based on the facts, such as the names of the alleged infringing seeds “Chenqiang 808”, “Jinongyu 885” and “Jinke 757” obtained through notarization are the same as the names of the registered varieties, and the production time of the alleged infringing seeds is close to the registration time of the Platform in 2021, it is presumed that the seeds with the same name registered by the Agricultural Company in 2021 are all “Xianyu 508” corn seeds, and the registered sales quantity can be determined as the production and sales quantity of the alleged infringing seeds. After that, the damages were calculated. The Agricultural Company was sentenced to compensate for losses of RMB 370,000 (Equivalent to US$ 50,949) and reasonable expenses of RMB 30,000 (Equivalent to US$ 4,131).
Typical Case 8: An infringement case of the new wheat plant variety “Bainong 207”, Huamou Seed Industry Company vs. Fengmou Seed Industry Company and Tangmou Sales Department; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 113 – This case used the management information involved in seed supervision to identify the producers and sellers in the variety rights infringement dispute. The second-instance judgment confirmed the infringement facts based on the second-instance appraisal opinion.
Huamou Seed Industry Company (“Huamou Company”) is the exclusive licensee of the new plant variety “Bainong 207”. The alleged infringing seeds were purchased from Tangmou Sales Department (“Sales Department”), which packaging bag and QR code scanning screenshots show that the variety name is “Yangguang 818,” and the producer and operator is Fengmou Seed Industry Company (“Fengmou Company”). The query of the QR code traceability website shows that the queried product is genuine, and the producer also points to Fengmou Company. Huamou Company filed a lawsuit, requesting that Fengmou Company and the Sales Department stop infringing and compensate for losses of RMB 300,000 (Equivalent to US$ 41,310). In the first instance, Huamou Company submitted a test report commissioned by itself, intending to prove that the alleged infringing seeds and the authorized variety “Bainong 207” are the same variety. The court of first instance determined that the test report was insufficient because the control sample “Bainong 207” had no sample number and its source was questionable. Meanwhile, it considered that the scanned packaging bag cannot prove that the alleged infringing seeds were produced by Fengmou Company because the production date and test date shown on its QR code are two years earlier than the sales date. Therefore, the first instance judgment dismissed all the claims of Huamou Company. Huamou Company was dissatisfied and filed an appeal.
In the second instance, the SPC initiated the appraisal as the alleged infringing seeds were sealed in good condition and met the conditions for appraisal. The appraisal agency conducted an identity test on the alleged infringing seeds and the “Bainong 207” standard sample in the national standard sample library, and the test result showed that the two were the same variety. The SPC believes that the information marked on the seed packaging, the label, the license, or the information pointed to by the number of the Origin Quarantine Certificate is an important basis for identifying the production and sales entity of the alleged infringing seeds. Unless there is evidence to the contrary, the seed producer and operator information marked on the packaging bag can be used to determine the identity of the production and sales entity. Therefore, in the absence of contrary evidence, Fengmou Company can be identified as the producer and seller of the alleged infringing seeds. The probative force of the inspection report issued by the appraisal agency should be examined from the aspects of the source of the sample, the appraisal method, the appraisal procedure, and the appraisal qualification. The identification agency entrusted by the court conducted a germination test on the samples to be tested. After the successful germination confirmed that the seeds were vigorous, it used molecular marker identification methods to test them. Then, it issued an inspection report by national standards, which proved that the alleged infringing seeds were identical to the “Bainong 207” wheat variety. The Sales Department knowingly sold infringing seeds and should bear joint liability. Based on this, the SPC changed the judgment to require Fengmou Company and the Sales Department to stop infringing, and Fengmou Company to compensate for losses and reasonable expenses for rights protection totaling RMB 300,000 (Equivalent to US$ 41,310), of which the Sales Department shall bear joint liability within RMB 50,000 (Equivalent to US$ 6,885).
Typical Case 9: An infringement case of the new soybean plant variety “Qihuang 34”, Shandong Shengmou Seed Industry Company vs. Qingdao Limou Professional Cooperative, and Geng Mou; the first instance, Qingdao Intermediate People’s Court of Shandong Province (2024) Lu 02 Zhi Min Chu No. 34 – This case demonstrates the effective use of online evidence in seed industry infringement cases. At the same time, based on the evidence in the case, the court fully supported the rights holder’s claim for compensation. This reflects the court’s judicial orientation to strengthen the protection of the seed industry’s intellectual property rights.
Shandong Shengmou Seed Industry Company (“Shengmou Company’) is the exclusive licensee of the “Qihuang 34” soybean plant new variety. Qingdao Limou Professional Cooperative (“Limou Cooperative”) and its operator, Geng Mou, promised to sell and sell the “Qihuang 34” soybean seeds through TikTok video accounts and WeChat video accounts. According to statistics from the videos it released on different dates, the total amount of seeds it produced and sold that were alleged to be infringing reached 310 tons. Shengmou Company filed a lawsuit, requesting that Limou Cooperative and Geng Mou stop infringing and jointly compensate for the loss of RMB 300,000 (Equivalent to US$ 41,310) and reasonable expenses of RMB 12,596 (Equivalent to US$ 1,734).
The Intermediate People’s Court of Qingdao City, Shandong Province, held at first instance that Limou Cooperative and Geng Mou produced and sold seeds that infringed the “Qihuang 34” soybean plant new variety rights without permission, which constituted infringement, and they should bear civil liabilities such as stopping infringement and compensating for losses. The two defendants sold 310 tons of infringing soybean seeds online. Based on the notarized purchase price of RMB 7 per kilogram (Equivalent to US$ 0.96 per kilogram) by Shengmou Company, the infringing sales amounted to RMB 2.17 million (Equivalent to US$ 298,809). Based on this, the first instance judgment fully supported the economic loss of RMB 300,000 (Equivalent to US$ 41,310) claimed by Shengmou Company and supported the reasonable expenses of RMB 10,000 (Equivalent to US$ 1,377) for rights protection. After the first instance judgment, neither party appealed.
Typical Case 10: An infringement case of the new soybean plant variety “You6019”, Henan Xumou Seed Industry Company vs. Henan Huamou Seed Industry Company, Xinmou Agricultural Materials Business Department, and Mingmou Agricultural Materials Business Department; the first instance, Henan Zhengzhou Intermediate People’s Court (2023) Yu 01 Zhi Min Chu No. 1907; the second instance, the SPC (2024) SPC Zhi Min Zhong No. 713 – This case clarifies that the production and sale of authorized varieties in non-approved areas are infringements. It emphasizes that the protection of variety rights is not limited to the planting area. Such an infringement may affect the legitimate rights and interests of growers, so it can be used as a factor to aggravate the infringement.
Henan Xumou Seed Industry Company (“Xumou Company”) is the exclusive licensee of the “You 6019” soybean plant new variety. This variety passed the national variety evaluation in 2018 and is suitable for summer planting in Hubei, Chongqing, southern Anhui, northern Jiangxi, and southern Shaanxi. The “Zhongdou 40” soybean seeds produced by Henan Huamou Seed Industry Company (“Huamou Company”) were sold by Mingmou Agricultural Materials Business Department (“Mingmou Department”) in Hunan Province under the commission from Xinmou Agricultural Materials Business Department (“Xinmou Department”). These seeds were seized by local agricultural law enforcement departments. After testing, the “Zhongdou 40” seeds and the “You 6019” seeds are suspected to be the same variety. Xumou Company filed a lawsuit, requesting that Huamou Company, Xinmou Department, and Mingmou Department stop the infringement and compensate for losses and reasonable expenses of RMB 300,000 (Equivalent to US$ 41,310). The three defendants argued that Xumou Company had no right to assert its rights and should not receive financial compensation because their sales activities took place outside the approved suitable planting area for the “You 6019” variety.
The Intermediate People’s Court of Zhengzhou City, Henan Province, ruled at first instance that Huamou Company, Xinmou Department, and Mingmou Department should stop the infringements and compensate for losses and reasonable expenses of RMB 150,000 (Equivalent to US$ 20,655), RMB 10,000 (Equivalent to US$ 1,377), and RMB 5,000 (Equivalent to US$ 689) respectively. Huamou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that if the variety right is legal and within the effective protection period, it should be protected by law. The scope of prohibition of variety rights is not limited to the areas where the authorized varieties are suitable for planting or the approved areas. Whether the alleged infringement is carried out in the areas where the authorized varieties are suitable for planting or the approved areas is not a condition for the establishment of variety rights infringement. Producing and selling authorized variety propagation materials without the permission of the variety right holder in a non-approved area still constitutes infringement. Damages should not be adversely affected by the infringement occurring in a non-approved area. On the contrary, it can be used as a factor to aggravate the infringement because infringement in a non-approved area not only damages the rights and interests of the variety right holder but may also damage the interests of the growers. Huamou Company’s production and sale of the alleged infringing seeds in non-approved suitable planting areas constitutes infringement and should bear compensation liability. At the same time, based on the same authorized variety, the same infringement behavior and the infringing subject, the reasonable expenses spent by the variety right holder in the administrative enforcement procedure to protect its variety rights can be identified as reasonable expenses in the case of infringement of new plant variety rights, and used to determine the amount of compensation. The court, therefore, dismissed the appeal and upheld the original judgment.
Typical Case 11: An infringement case of the new varieties of rose plants including Lexteews, Dutch Mou Group Company, Aimou Agricultural Company vs. Lanzhou Mou Agricultural Technology Company; the first instance, Lanzhou Intermediate People’s Court of Gansu Province (2023) Gan 01 Zhi Min Chu No. 42, 43, 44 – The court explored diversified ways to resolve the dispute and ultimately settled the case through mediation, which not only equally protected the rights of foreign variety right holders, but also laid a solid foundation for future cooperation between the two parties.
Dutch Mou Group Company (“Dutch Company”) is the variety rights holder of three new rose plant varieties, including Lexteews. Aimou Agricultural Company (“Aimou Company”) is an affiliated company of the Dutch Company and is authorized to produce, promote, and sell a series of rose varieties, including Lexteews in China, and has the right to sue for related infringements. Lanzhou Mou Agricultural Technology Company (“Agricultural Company”) bred, promised to sell, and sold rose varieties, including Lexteews, on a large scale in a flower industry base. The Dutch Company and Aimou Company filed three infringement lawsuits, requesting that the Agricultural Company be ordered to stop the infringement and compensate for losses and reasonable expenses totaling more than RMB 10 million (Equivalent to US$ 1.38 million).
After the Lanzhou Intermediate People’s Court of Gansu Province accepted the case at first instance, Aimou Company immediately applied for property preservation of more than RMB 8 million (Equivalent to US$ 1.1 million) in the Agricultural Company’s account funds. The Agricultural Company’s rose planting has reached a certain scale. The first instance court organized mediation between the two parties many times, prompting the two parties to finally sign an authorization statement and a cooperation framework agreement, transforming the infringement implementation into authorized cooperation.
Typical Case 12: A contract dispute involving the planting of hand-torn pineapples, Hainan Fengmou Fruit Company vs. Ye Mouding; the second instance, Hainan Free Trade Port Intellectual Property Court (2023) Qiong 73 Min Zhong No. 328 – Based on the contractual agreement and legal provisions, the trial court settled the case by balancing the interests of seed users and seed suppliers. It ensured the safety of seed use and maintained the healthy development of the seed industry.
On 11 October 2020, Hainan Fengmou Fruit Company (“Fengmou Company”) and Ye Mouding signed a pineapple planting agreement. According to the agreement, Ye Mouding provided pineapple seedlings and planting fertilizers for a fee, provided planting technology free of charge, guaranteed that the pineapple fruit yield was not less than 3,000 kilograms per mu (one mu is about 666.666 square meters), and the cultivated pineapple seedling yield was not less than 12,000 plants per mu. After the pineapple fruit matured, Ye Mouding agreed to repurchase all the pineapple fruits at a price not less than RMB 3 per kilogram (Equivalent to US$ 0.41 per kilogram). During the cooperation, Fengmou Company filed a lawsuit, claiming the pineapple production and sales price did not conform to the agreement, requesting that Ye Mouding pay a penalty of RMB 505,008 (Equivalent to US$ 69,540), compensate for losses of RMB 288,985 (Equivalent to US$ 39,793), and repurchase pineapple seedlings at market price. Ye Mouding counterclaimed and requested Fengmou Company to pay RMB 115,396 (Equivalent to US$ 15,890) for seedlings and compensate for the loss of overdue payment. The first instance court ruled that Ye Mouding should compensate Fengmou Company for the losses, and Fengmou Company should pay the remaining amount of seedlings to Ye Mouding. Fengmou Company was dissatisfied and appealed to the Hainan Free Trade Port Intellectual Property Court (“Hainan Court”).
After accepting the case, the Hainan Court handled the case prudently and sought diversified solutions, considering that seeds and seedlings are important raw materials for agricultural production and their quality and safety are related to farmers’ income and agricultural development. It facilitated mediation between the two parties after communicating with the parties many times. Both parties signed the mediation agreement and immediately implemented the contents of the mediation agreement. The case was successfully resolved.
Typical Case 13: An unfair competition case involving the name of a well-known breeder,Mou Agricultural High-tech Company vs. Wanmou Group Company, and Jiangxi Wanmou Industrial Company; the first instance, Shangrao Intermediate People’s Court of Jiangxi Province (2024) Gan 11 Min Chu No. 10; the second instance, Jiangxi Higher People’s Court (2024) Gan Min Zhong No. 288 – Yuan Longping is a Chinese hybrid rice breeder and the father of hybrid rice in the world. His name has extremely high social influence and commercial value. The judgment in this case clarifies the legal standard for whether the commercial use of the name of a well-known breeder constitutes unfair competition.
Yuan Longping had signed a Yuan Longping Brand Rights License Agreement with Mou Agricultural High-tech Company (“Agricultural Company”), authorizing the company to exclusively use his name rights in its business activities. Wanmou Group Company and Jiangxi Wanmou Industrial Company (“Defendants”) have overlapping business scopes with the Agricultural Company. They use the words “National Rice Wannian Gong, Yuan Longping Title” on the outer packaging of rice and other commodities and in online publicity for promotion and sales. The Agricultural Company filed a lawsuit, requesting that the Defendants be ordered to immediately stop their unfair competition and compensate the company for economic losses of RMB 1 million (Equivalent to US$ 137,700) and reasonable rights protection expenses of RMB 100,000 (Equivalent to US$ 13,770).
The Shangrao Intermediate People’s Court of Jiangxi Province ruled in the first instance that the Defendants should immediately stop the unfair competition of producing and selling packaging products with the name and signature of Yuan Longping, immediately delete the promotional content that improperly uses the name and signature of Yuan Longping, and compensate for the losses and reasonable expenses of rights protection totaling RMB 50,000 (Equivalent to US$ 6,885). The Defendants were dissatisfied and filed an appeal.
The Jiangxi Provincial High People’s Court held in the second instance that using “Yuan Longping” in the form of inscriptions and signatures on the alleged infringing goods was commercial. Yuan Longping’s name has a high degree of popularity and influence, and is a name with a certain influence. The Agricultural Company enjoys the relevant commercial use rights of the name. The Defendants used the name “Yuan Longping” for product promotion and sales without legal authorization, which easily misled the relevant public into believing that its products had a specific connection with Yuan Longping or the Agricultural Company. It constituted a commercial confusion, violated the principle of good faith and recognized business ethics, damaged the legitimate rights and interests of the Agricultural Company, and constituted unfair competition. Based on this, the second instance court ruled to dismiss the appeal and uphold the original judgment.
Typical Case 14: An invalidation case of the new corn plant variety “FL218”, Guizhou Huimou Seed Industry Company vs. Plant Variety Review Committee of the Ministry of Agriculture and Rural Affairs, Hubei Kangmou Seed Industry Company; the first instance, Beijing Intellectual Property Court (2022) Jing 73 Xing Chu No. 4665; the second instance, the SPC (2024) SPC Zhi Xing Zhong No. 627 – This case clarified the scope of review of the procedure for declaring a variety right invalid upon application and the specific identification standards and allocation of the burden of proof in the procedure for confirming variety rights.
Hubei Kangmou Seed Industry Company (“Kangmou Company”) is the owner of the variety right of the new corn plant variety “FL218”. Guizhou Huimou Seed Industry Company (“Huimou Company”) filed a request for invalidation with the Plant Variety Review Committee of the Ministry of Agriculture and Rural Affairs (“Committee”), claiming that the variety did not have novelty because it had been mass-produced and sold before the application date, and the other varieties approved with it as a parent for breeding had also been mass-produced and sold. The Committee believed that the evidence in the case was insufficient to prove that the varieties involved lacked novelty and specificity and maintained the validity of the variety rights involved. Huimou Company was dissatisfied and filed an administrative lawsuit with the Beijing Intellectual Property Court. The court held that the “FL218” variety possessed novelty and specificity and rejected the lawsuit of the Huimou Company. The Huimou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that Huimou Company only requested the declaration of invalidation of the variety right because the “FL218” variety did not have novelty and did not explicitly claim specificity. However, considering that Kangmou Company also agreed to review whether the “FL218” variety had specificity during the invalidation review procedure and administrative litigation, the invalidation review decision protected the rights and interests of the variety right holder to defend and listen to the opinions of the variety right holder. It did not constitute a procedural violation. The invalidation applicant needs to clarify the known varieties of the authorized varieties and prove that there is no obvious difference between the authorized varieties and the known varieties through evidence such as DNA identification results or field test results. The burden of proof should be borne by the invalidation applicant. Huimou Company failed to fulfill its burden of proof because it did not submit evidence to prove that the three parent varieties involved in the case were known varieties of the “FL218” variety, nor did it have preliminary evidence to prove that the “FL218” variety was the same as the three parent varieties involved in the case. As it failed to prove that the “FL218” variety did not have novelty and specificity, the appeal was dismissed, and the original judgment was upheld.
Typical Case 15: A criminal case involving the infringement of trade secrets of the new rice plant variety “Quanyou 822"; the first instance, the People’s Court of Hefei High-tech Industrial Development Zone, Anhui Province (2023) Wan 0191 Criminal Chu No. 611 – This case has effectively punished and prevented seed-related crimes by leveraging the legal deterrent power of criminal sanctions, purified the seed market, and created a good innovation environment for seed companies.
Anhui Mou High-tech Company (“High-tech Company”) is the owner of the new plant varieties “Quanyou 9311A”, “YR0822,” and “Quanyou 822”. Among them, the “Quanyou 822” rice seed was developed by the company’s scientific research team. The cultivation technology and genetic information of its mother, “Quanyou 9311A,” are the company’s core secrets and have not been disclosed to the public. Strict confidentiality measures have been taken by the High-tech Company. After the trial planting of “Quanyou 822” achieved mass production, the High-tech Company transferred the relevant technology to its wholly-owned subsidiary, Anhui Mou Seed Industry Company (“Seed Company”). According to the transfer contract, the Seed Company obtained the exclusive domestic production and operation rights, and all relevant personnel involved in the production and management of the seeds were agreed to strict confidentiality obligations. In 2019 and 2020, the Seed Company signed a Hybrid Rice Seed Production Contract with Deng Moujin, the legal representative of Mou Seed Professional Cooperative (“Seed Cooperative”), entrusting the Seed Cooperative to produce “Quanyou 822” rice seeds. The contract stipulates that the contractor shall ensure that the parents will not be lost, not privately bred, and not privately used for other purposes and that the seeds produced by it will not be lost. The loss of parents or private breeding will be subject to legal responsibility. Every year, technicians are stationed at the planting base to provide long-term guidance on planting, supervise production, and prevent rice seed loss. Since 2019, Deng Moujin, Wang Mouyong and Huang Mouyong of Mouxin Seed Industry Company (“Mouxin Company”) conspired to arrange for Huang Mou, an employee of the Seed Cooperative, to apply for more parent “Quan 9311A” from the Seed Company by applying more per mu, and privately bred “Quanyou 822” rice seeds outside the supervision of the Seed Company, and handed them over to Mouxin Company to sell 113,840 kilograms under the same brand, causing a loss of RMB 1,090,360 (Equivalent to US$ 150,143) to the High-tech Company. On 11 October 2023, the People’s Procuratorate of Hefei High-tech Industrial Development Zone, Anhui Province filed a public prosecution, accusing Deng Moujin, Wang Mouyong, Huang Mouyong and Huang Mou of obtaining the right holder's business secrets through improper means of false reporting and fraud, violating confidentiality obligations, and causing heavy losses to the business secret right holder. The circumstances are serious, and they should be held criminally responsible for infringing on business secrets.
The People’s Court of Hefei High-tech Industrial Development Zone, Anhui Province, held at first instance that Deng Moujin and Huang Mou violated the agreement with the right holder on keeping trade secrets, privately bred rice seeds, while Wang Mouyong and Huang Mouyong were responsible for sales, making illegal profits, causing major losses to the right holder of trade secrets. The court considered the circumstances were serious, and their behaviors had constituted the crime of infringing trade secrets. The defendants Deng Moujin, Huang Mouyong, Wang Mouyong, and Huang Mou were sentenced to fixed-term imprisonment ranging from one year and two months to ten months, and fined between RMB 200,000 (Equivalent to US$ 27,540) and RMB 20,000 (Equivalent to US$ 2,754).
Typical Case 1: An infringement case involving the new rice plant variety of “Gangyou 188”, Gangmou Seed Industry Company vs. Chongqing Nongmou Seed Industry Company, and Lei Mou; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 3165 – This case clarifies that the transferee of the approved variety shall bear legal responsibility for its production and operation of the approved variety, which constitutes infringement of the variety right. The second instance judgment is of reference significance in clarifying the legal nature of the approved variety, explaining the method of determining infringement, and reasonably determining compensation.
Gangmou Seed Industry Company (“Gangmou Company”) is the exclusive licensee of the new rice plant variety “Gangyou 188”. It filed an infringement lawsuit, claiming that the “Gangyou 88” seeds produced and sold by Chongqing Nongmou Seed Industry Company (“Nongmou Company”) and sold by Lei Mou infringed its variety rights, and requested that the two companies be ordered to stop the infringement, Nongmou Company compensate for losses and reasonable expenses totaling more than RMB 15.14 million (Equivalent to US$ 2.08 million), and Lei Mou bear joint and several liability for reasonable costs. Nongmou Company argued that it should not bear compensation liability because it had fulfilled its reasonable review obligations, such as it had obtained the production and operation rights of the approved variety “Gangyou 88” through legal transfer, and at the time of transfer, it had conducted an authenticity appraisal of the “Gangyou 88” it operated and the approved standard sample of the variety. After the administrative agency and the first instance court commissioned appraisals respectively, the alleged infringing seeds “Gangyou 88” produced and sold by Nongmou Company and sold by Lei Mou were identical to the standard sample of the approved variety and were similar to the authorized variety “Gangyou 188”. The court of first instance determined that Nongmou Company and Lei Mou did not constitute infringement based on the fact that the alleged infringing seed “Gangyou 88” was identical to its approved standard sample. Gangmou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that there are differences between variety approval and variety authorization in terms of application procedures and system purposes. Whether the alleged infringing seeds are identical to the standard samples of the approved varieties has no relevance to whether they are the same as the characteristics and properties of the authorized varieties for protection. Unless otherwise provided by laws and regulations, the production, reproduction, and sale of authorized variety reproduction materials without the permission of the variety right holder constitutes infringement of the variety right. The alleged infringing seeds belong to an approved variety. When the alleged infringer obtains the approved variety through transfer, he can claim the corresponding contractual liability from the transferor based on the contractual relationship. However, it cannot use this to counter the infringement claim of the variety right holder. Regarding the multiple license transfers of the infringing approved variety, unless there is evidence that the alleged infringer did not operate the seeds, the infringement time can be calculated from the date of his transfer of the variety in principle. Based on this, the second instance changed the judgment that Nongmou Company and Lei Mou stopped the infringement, Nongmou Company compensated for the losses and reasonable expenses for rights protection totaling more than RMB 5.96 million (Equivalent to US$ 820,692), and Lei Mou bore reasonable expenses for rights protection of RMB 6,288 (Equivalent to US$ 866).
Typical Case 2: A case on the temporary protection period royalties and infringement of the new variety of Scilate apple plant, Yingmou International Company vs. Youmou Agricultural Company; the first instance, Lanzhou Intermediate People’s Court of Gansu Province (2023) Gan 01 Zhi Min Chu No. 9; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 3113 – This case regards the act of selling harvested materials as a natural extension of the production and reproduction of propagation materials. When the infringer mainly obtains illegal profits by selling harvested materials, the sales profit of the harvested materials is used as the basis for determining the amount of compensation.
The Scilate apple variety was selected and bred by a research institute company in New Zealand, which obtained the new plant variety right in China. Yingmou International Company ("Yingmou Company") is an interested party in the variety right. It sued and claimed that Youmou Agricultural Company ("Youmou Company") had produced, propagated, and sold Scilate propagation materials without permission since 2018 and sold a large number of apple fruits harvested from them, which constituted infringement. It requested an order to stop the infringement, inactivate the infringing materials, and apply punitive damages of RMB 5 million (Equivalent to US$ 688,500). Youmou Company believes that it does not constitute infringement because planting fruit trees does not belong to production and reproduction, and the purpose of planting fruit trees is only to obtain apple fruits rather than to cultivate seedlings. Even if it is determined that it constitutes infringement, the fruit trees should not be ordered to be inactivated, and the amount of compensation should not be determined by the sales volume of apple fruits. After identification, the Envy fruit tree branches purchased by Yingmou Company from Youmou Company were identical to the Scilate variety. Youmou Company did not provide evidence that its fruit trees have a legal source.
The Lanzhou Intermediate People’s Court of Gansu Province ruled at first instance that Youmou Company should inactivate all infringing propagation materials (plants, branches, etc.), and by applying double punitive damages, ordered Youmou Company to compensate for losses, temporary protection period usage fees and reasonable expenses totaling RMB 3.3 million (Equivalent to US$ 454,410). Youmou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that Youmou Company must have propagated a large number of saplings and branches in the process of planting and obtaining the Scilate apple fruits. Based on the evidence in this case, it can be reasonably inferred that it has been engaged in the continuous production and propagation of authorized variety propagation materials. Youmou Company planted the Scilate variety seedlings for profit, sold a large number of apple fruits, and expanded reproduction. Therefore, its planting activities should be identified as production and reproduction activities. It not only produced and bred apple seedlings but also sold apple fruits. The act of selling harvested materials is a natural extension of producing and breeding authorized varieties of breeding materials in terms of time and obtaining illegal benefits and should be considered as a whole. The principle of comprehensive compensation should be followed when determining the amount of compensation. The profit obtained from the sale of harvested materials should be used as a reference for the profit of infringement. Inactivating the propagation materials of infringing varieties is an effective measure to stop infringement. Compared with the method of eradicating seedlings and replanting them, the right holder’s claim that only inactivating the scion and grafting the scion of non-infringing varieties can better take into account the interests of all parties and should be supported. The appeal was dismissed, and the original judgment was upheld.
Typical Case 3: An infringement case involving the new variety of Rosa rugosa plant called Tianshan Xiangyun, Xinjiang Huamou Technology Company vs. Xinjiang Mou Seedling Farm; the second instance, the SPC (2024) SPC Zhi Min Zhong No. 665 – This case clearly states that the principle of exhaustion of rights does not apply to the act of re-breeding and selling the propagation materials that have been sold. The second-instance judgment supported the claim of the variety right holder to calculate the infringement damages based on the difference between the variety right holder's selling price and the infringer’s selling price when the infringer refused to submit financial books and other evidence.
Xinjiang Huamou Technology Company (“Huamou Company”) is the owner of the new variety of Rosa rugosa plants “Tianshan Xiangyun”. In 2022, Huamou Company notarized the purchase of seedlings that infringed the variety rights of “Tianshan Xiangyun” from Xinjiang Mou Seedling Farm (“Seedling Farm”). On 28 May 2023, Seedling Farm signed a seedling ordering agreement with Changji Mou Cultivation Base (“Cultivation Base”), agreeing to sell 8,000 “Tianshan Xiangyun” seedlings. Huamou Company filed an infringement lawsuit, claiming that the Seedling Farm had continued to infringe from 2014 to 2023, and requested that the Seedling Farm be ordered to stop the infringement and compensate for losses and reasonable expenses totaling RMB 5 million (Equivalent to US$ 688,500). Huamou Company sells the “Tianshan Xiangyun” seedlings at a price of RMB 320-360 per plant (Equivalent to US$ 44.06-49.57 per plant), and the Seedling Farm sells it at a price of RMB 120-160 per plant (Equivalent to US$ 16.52-22.03 per plant). Huamou Company claims that the average of the difference between its sales price of the “Tianshan Xiangyun” seedlings and the sales price of the Seedling Farm is its sales profit. The Seedling Farm argued that it did not constitute infringement based on the principle of exhaustion of rights. The Seedling Farm, a public welfare institution, claimed that it had been cutting branches of rose varieties, such as “Tianshan Xiangyun”, from municipal parks for breeding since 2014. In 2021, it uniformly named the 36 rose varieties it cultivated as Tianshan Rose, and the “Tianshan Xiangyun” seeding is only one of them. The Seedling Farm believes that its behavior belongs to scientific research and development, and the seedlings it obtained were cut from municipal parks or introduced from other places. The work summary submitted by it in 2021 shows that 10,500 “Tianshan Xiangyun” cuttings were planted in 2021, and 4,000 survived. The Origin Quarantine Certificate of the Seedling Farm in 2022 and 2023 records that the number of the Tianshan Rose, including the “Tianshan Xiangyun”, is 20,000 and 50,000, respectively. The first instance court determined that the production, breeding, and sales of the Seedling Farm exceeded the scope of scientific research and had a profit-making purpose, and the infringement was established. It was ordered to stop the infringement and pay RMB 200,000 (Equivalent to US$ 27,540) in compensation. Huamou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that the application of the principle of exhaustion of variety rights is based on the premise that the authorized variety propagation materials are sold by the variety right holder or the unit or individual authorized by the variety right holder, and only applies to the subsequent production, propagation and sales of the legally sold authorized variety propagation materials themselves, but not to the re-propagation and sale of the sold propagation materials. The Seedling Farm constitutes infringement because it has not proved that its breeding behavior belongs to the use of authorized varieties to cultivate new varieties, and large-scale breeding is inconsistent with the scale required for scientific research. At the same time, it has sales for profit. The Seedling Farm admitted that it cut and propagated the “Tianshan Xiangyun” seedlings at the end of 2014 and is still producing and breeding them. Combined with the notarial certificates involved in the case, relevant agreements, work summaries, and other evidence, it can be determined that it has continued to infringe from at least 2014 to 2023. Considering that the price of goods sold to the outside world is bound to be higher than the production cost, the Seedling Farm refused to provide relevant account books and other information, so the average value of the difference between the price of the “Tianshan Xiangyun” sold by Huamou Company and the sales price of the Seedling Farm, that is RMB 200 per plant (Equivalent to US$ 27.54), was used as the basis for determining the losses suffered by the right holder due to infringement. Based on the evidence in the case, the number of alleged infringing seedlings produced and propagated by the Seedling Farm in 2021 was no less than 4,000 and no more than 8,000 in 2023. Based on this, by selecting the average number of the two years, it can be determined that the number of alleged infringing seedlings produced and propagated by the Seedling Farm from 2021 to 2023 was 6,000 per year. The damages calculated based on these three years alone has exceeded RMB 3 million (Equivalent to US$ 413,100) requested by Huamou Company in its appeal. Therefore, the second instance changed the judgment to fully support the amount of compensation requested by Huamou Company in its appeal.
Typical Case 4: An infringement case of the new rice plant variety “Jinjing 818”, Jiangsu Jinmou Seed Industry Company vs. Xuzhou Dimou Agricultural Materials Company, Zhao Mou, Zhao Moubao; the first instance, Nanjing Intermediate People’s Court of Jiangsu Province (2022) Su 01 Min Chu 2019; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 2896 – This case is a typical example of severely cracking down on the hidden infringement of using online platforms to organize seed transactions and the persons directly responsible. The case determined that the actual controller of the company who played an organizing and decision-making role in the occurrence of the infringement and other persons who received the company’s infringement proceeds with their accounts and directly participated in the infringement constituted joint infringement with the company, and ordered them to bear joint and several liability based on the circumstances of their infringement and the extent of their role.
Jiangsu Jinmou Seed Industry Company (“Jinmou Company”) is the licensee of the exclusive implementation license for the new rice plant variety “Jinjing 818”. In May 2020, Xuzhou Dimou Agricultural Materials Company (“Dimou Company”) was ordered to stop infringement and bear punitive compensation liability for using white bags and irregular packaging to sell infringing seeds without the permission of the “Jinjing 818” variety right holder. Dimou Company did not comply with the above judgment, and Jinmou Company applied for compulsory execution. During the execution process, the court added Zhao Mou, the sole shareholder and legal representative of Dimou Company, as the person to be executed. Since January 2021, Zhao Mou has successively released seed supply information, contact numbers of Zhao Moubao, the heads of various sales areas of Dimou Company and its accountant, in WeChat, and organized offline ordering activities. Starting from 29 November 2021, a farmer communicated with the sales staff of Dimou Company about purchasing the alleged infringing seeds and paid the deposit and the remaining amount to Zhao Moubao’s account. Jinmou Company filed a lawsuit, requesting that Dimou Company, Zhao Mou, and Zhao Moubao stop infringing and jointly compensate for losses and reasonable expenses for rights protection totaling RMB 3 million (Equivalent to US$ 413,100). During the first trial, it was determined that the alleged infringing seeds were very similar or identical to the “Jinjing 818” variety.
The Nanjing Intermediate People’s Court of Jiangsu Province held at first instance that after Dimou Company was ordered to stop infringing in the previous case, it once again organized seed transactions through WeChat and infringed. Zhao Mou, the legal representative and sole shareholder of Dimou Company, used WeChat to release seed supply information and organized offline ordering activities, playing a key and core organizational role in seed trading, and jointly infringed with Dimou Company. After Dimou Company was forced to execute, Zhao Moubao, who participated in seed sampling, collected transaction funds with his account. He, Dimou Company, and Zhao Mou were also jointly infringing. The court ordered the three defendants to stop the infringement, and ordered Dimou Company and Zhao Mou to jointly compensate Jinmou Company for economic losses and reasonable expenses totaling RMB 1.8 million (Equivalent to US$ 247,860), and Zhao Moubao was jointly liable for RMB 350,000 (Equivalent to US$ 48,195) of it. The three defendants were dissatisfied and appealed. The SPC rejected the appeal in its second-instance judgment and upheld the original judgment.
Typical Case 5: An infringement case involving the new variety of fruit vine “Hongyunlai”, Shanghai Mou Plant Company vs. Guangzhou Mou Agricultural Science Company; the second instance, the SPC (2022) SPC Zhi Min Zhong No. 1362 – This case is a typical case of exploring the use of MNP markers for identity identification for specific crops that have not yet established national standards or industry standards for molecular marker detection. Based on the scientific nature and repeatability of the identification method, the second instance judgment determined that the identification opinion can be used as evidence to determine that the alleged infringing seedlings are identical to the authorized variety, thereby avoiding the lack of identification standards for specific crop variety rights that cannot obtain judicial protection and relief.
Shanghai Mou Plant Company (“Plant Company”) and Shanghai Xianmou Company are the variety rights holders of the new fruit vine variety “Hongyunlai”. In January 2020, the Plant Company sent the “Xinhongxing” seedlings sold by Guangzhou Mou Agricultural Science Company (“Agricultural Science Company”) and obtained through notarization and preservation and the “Hongyunlai” authorized variety samples stored in the Plant New Variety Testing (Shanghai) Branch Center to Ningbo Mou Technology Company (“Technology Company”) for testing. On 13 April 2020, the Technology Company issued a technical appraisal opinion (“Opinion”), which identified that the two varieties were highly similar because their AFLP fingerprints were 95.08% similar. The Plant Company filed a lawsuit, requesting that the Agricultural Science Company be ordered to stop the infringement and compensate for the losses. The first instance judgment dismissed all the claims of the Plant Company, and did not adopt the Opinion because there was no national standard or industry standard for molecular marker detection of the varieties involved. The Plant Company was dissatisfied and filed an appeal. In the second instance, the SPC approved the Plant Company’s application for identification and, with the consent of both parties, designated a testing agency to conduct the identification. The testing agency used the MNP labeling method to test the varieties and issued a test report stating that the genetic similarity between the sample submitted and the control sample was 99.91%, and the identification result was very similar or the same variety.
The SPC held in the second instance that it should review whether the molecular marker detection method for plant variety identification is scientific and reliable. When the molecular marker detection method for a specific plant variety has not yet established a national standard or industry standard, the identification results made by qualified identification institutions and appraisers concerning other relevant standards, such as the identification method can scientifically and accurately distinguish different varieties and has sufficient scientific basis and repeatability, can be used as evidence to determine whether the alleged infringing plant and the authorized variety are identical. The MNP Marking Method for Plant Variety Identification (“MNP Marketing Method”) has been established as a national standard and can be applied to the identification of original varieties, substantially derived varieties, and authenticity of varieties such as rice, corn, and soybean. The identification of the identity of pineapple varieties of the genus Pyrifera can be carried out by the MNP Marking Method. After identification, the alleged infringing seedlings “Xinhongxing” and the authorized variety “Hongyunlai” are very similar or identical. The Agricultural Science Company did not submit rebuttal evidence, so it can be determined that the alleged infringing seedlings and the authorized variety “Hongyunlai” are identical. Therefore, the Agricultural Science Company was sentenced to stop the infringement and compensate for losses and reasonable expenses totaling RMB 1.075 million (Equivalent to US$ 148,027.5).
Typical Case 6: An infringement case regarding the new corn plant variety “Jingnuo 6”, Beijing Mou Breeding Company vs. Guangxi Mou Seed Industry Company, Shenzhen Mou Seed Industry Company, and Mou Seed Store; the first instance, Shenzhen Intermediate People’s Court of Guangdong Province (2022) Yue 03 Min Chu No. 4649; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 1790 – At present, there is no universal standard for the identification of the parentage of plant varieties in China. Therefore, how to prove that the hybrid variety in question is produced by using the authorized variety is still a difficult problem in judicial practice. This case achieved the protection of the legitimate rights and interests of the parent variety rights holders by reasonably considering the rules of crop breeding, comprehensively analyzing the results of the parent-offspring relationship identification between the parent varieties and the hybrid varieties, as well as the authenticity identification results of the hybrid varieties, and reasonably allocating the burden of proof.
Beijing Mou Scientific Academy is the owner of the variety rights of the new corn plant variety “Jingnuo 6”, and Beijing Mou Breeding Company (“Breeding Company”) is its exclusive licensee. “Jingkenuo 2000” is a hybrid corn variety produced with “Jingnuo 6” and “Bainuo 6” as parents. The Breeding Company filed a lawsuit, requesting that Guangxi Mou Seed Industry Company (“Guangxi Company”), Shenzhen Mou Seed Industry Company (“Shenzhen Company”), and Mou Seed Store (“Seed Store”) stop using the “Jingnuo 6” variety to produce the alleged infringing seed “Shenkenuo 8”, and compensate for the losses.
The first instance court conducted authenticity appraisals on the alleged infringing seeds “Shenkenuo 8” and “Jingkenuo 2000” and conducted parent-child relationship appraisals on the alleged infringing seeds “Shenkenuo 8” and “Jingnuo 6”. The appraisal results showed that the alleged infringing seeds “Shenkenuo 8” and “Jingkenuo 2000” were similar varieties and were suspected to have a parent-child relationship with “Jingnuo 6”. Based on the appraisal results, the court determined that the alleged infringing seed “Shenkenuo 8” was produced by reusing the authorized variety “Jingnuo 6” as the parent, and ordered the three defendants to stop the infringement, Guangxi Company to compensate for the loss of RMB 300,000 (Equivalent to US$ 41,310) and reasonable expenses of RMB 50,000 (Equivalent to US$ 6,885), Shenzhen Company to compensate for the loss of RMB 100,000 (Equivalent to US$ 13,770), and Seed Store to compensate for the loss of RMB 20,000 (Equivalent to US$ 2,754). Guangxi Company and Shenzhen Company were dissatisfied and filed an appeal.
The SPC held in the second instance that, given the lack of national or industry standards for the identification of the parent-offspring relationship of plant varieties, when determining whether a specific hybrid is produced and propagated by repeatedly using the authorized variety as the parent, the parent-offspring relationship identification opinion made by the identification agency about the variety authenticity identification standard can be used as the basis for determining the facts. The identification opinion in this case can serve as preliminary evidence to determine that the alleged infringing seed “Shenkenuo 8” repeatedly used the authorized variety “Jingnuo 6” propagation material in the production process. At the same time, combined with the identification opinion that the hybrid “Jingkenuo 2000” produced with “Jingnuo 6” as the mother parent and the alleged infringing hybrid “Shenkenuo 8” are similar varieties, it can be determined that the “Shenkenuo 8” variety was likely produced by using the “Jingnuo 6” propagation material as the parent. Guangxi Company and Shenzhen Company failed to provide evidence to prove that the alleged infringing seeds have a legitimate parental source, so their claim of non-infringement is not supported. The court, therefore, ruled to dismiss the appeal and uphold the original judgment.
Typical Case 7: An infringement case of the new corn plant variety “Xianyu 508”, Shandong Mou Seed Industry Company vs. Shangxi Mou Agricultural Company, and Qi County Mou Distribution Department; the second instance, the SPC (2024) SPC Zhi Min Zhong No. 819 – The information system of the seed administration department stores data and information related to seed production, sales and others. The reasonable use of relevant data and information can effectively track the infringing subject and the scale of infringement. This case clarifies the use of the registered data of the seed industry's big data platform (“Platform”) in the calculation of damages for variety rights infringement. By comprehensively considering the registered data of the Platform and the infringement involved in the case, the sales volume of infringing seeds can be reasonably estimated, and the amount of infringement compensation can be calculated.
Shandong Mou Seed Industry Company (“Seed Company”) has the right to file a civil lawsuit in its name for infringement of the variety right of “Xianyu 508” under the authorization from the variety right holder. After testing, the allegedly infringing seeds “Chenqiang 808”, “Jinongyu 885,” and “Jinke 757” are very similar or identical to the authorized varieties of “Xianyu 508”. The Seed Company filed an infringement lawsuit, requesting that Shangxi Mou Agricultural Company (“Agricultural Company”) and Qi County Mou Distribution Department (“Distribution Department”) stop the infringement and compensate for losses and reasonable expenses totaling RMB 550,000 (Equivalent to US$ 75,735). The Seed Company requested that the amount of compensation be determined based on the profits of the Agricultural Company’s infringement and submitted the sales data of “Chenqiang 808”, “Jinongyu 885,” and “Jinke 757” corn seeds registered on the Platform from 2018 to 2021. Meanwhile, it claimed that the production and sales volume of infringing seeds should be determined by the number of the Agricultural companies registered on the Platform. The first instance court ordered the Agricultural Company and the Distribution Department to stop the infringement, the Agricultural Company to compensate for the loss of RMB 30,000 (Equivalent to US$ 4,131) and reasonable expenses of RMB 16,000 (Equivalent to US$ 2,203), and the Distribution Department to pay reasonable costs of RMB 4,000 (Equivalent to US$ 551). Both the Seed Company and the Agricultural Company were dissatisfied and filed an appeal.
The SPC held in the second instance that the alleged infringer registered production and operation on the Platform as a producer. In principle, it can be presumed that the registered sales quantity is the production and sales quantity of the infringing seeds when the name of the alleged infringing seeds is the same as the registered variety name and the production time of the alleged infringing seeds is close to the registration time in the Platform. Based on the facts, such as the names of the alleged infringing seeds “Chenqiang 808”, “Jinongyu 885” and “Jinke 757” obtained through notarization are the same as the names of the registered varieties, and the production time of the alleged infringing seeds is close to the registration time of the Platform in 2021, it is presumed that the seeds with the same name registered by the Agricultural Company in 2021 are all “Xianyu 508” corn seeds, and the registered sales quantity can be determined as the production and sales quantity of the alleged infringing seeds. After that, the damages were calculated. The Agricultural Company was sentenced to compensate for losses of RMB 370,000 (Equivalent to US$ 50,949) and reasonable expenses of RMB 30,000 (Equivalent to US$ 4,131).
Typical Case 8: An infringement case of the new wheat plant variety “Bainong 207”, Huamou Seed Industry Company vs. Fengmou Seed Industry Company and Tangmou Sales Department; the second instance, the SPC (2023) SPC Zhi Min Zhong No. 113 – This case used the management information involved in seed supervision to identify the producers and sellers in the variety rights infringement dispute. The second-instance judgment confirmed the infringement facts based on the second-instance appraisal opinion.
Huamou Seed Industry Company (“Huamou Company”) is the exclusive licensee of the new plant variety “Bainong 207”. The alleged infringing seeds were purchased from Tangmou Sales Department (“Sales Department”), which packaging bag and QR code scanning screenshots show that the variety name is “Yangguang 818,” and the producer and operator is Fengmou Seed Industry Company (“Fengmou Company”). The query of the QR code traceability website shows that the queried product is genuine, and the producer also points to Fengmou Company. Huamou Company filed a lawsuit, requesting that Fengmou Company and the Sales Department stop infringing and compensate for losses of RMB 300,000 (Equivalent to US$ 41,310). In the first instance, Huamou Company submitted a test report commissioned by itself, intending to prove that the alleged infringing seeds and the authorized variety “Bainong 207” are the same variety. The court of first instance determined that the test report was insufficient because the control sample “Bainong 207” had no sample number and its source was questionable. Meanwhile, it considered that the scanned packaging bag cannot prove that the alleged infringing seeds were produced by Fengmou Company because the production date and test date shown on its QR code are two years earlier than the sales date. Therefore, the first instance judgment dismissed all the claims of Huamou Company. Huamou Company was dissatisfied and filed an appeal.
In the second instance, the SPC initiated the appraisal as the alleged infringing seeds were sealed in good condition and met the conditions for appraisal. The appraisal agency conducted an identity test on the alleged infringing seeds and the “Bainong 207” standard sample in the national standard sample library, and the test result showed that the two were the same variety. The SPC believes that the information marked on the seed packaging, the label, the license, or the information pointed to by the number of the Origin Quarantine Certificate is an important basis for identifying the production and sales entity of the alleged infringing seeds. Unless there is evidence to the contrary, the seed producer and operator information marked on the packaging bag can be used to determine the identity of the production and sales entity. Therefore, in the absence of contrary evidence, Fengmou Company can be identified as the producer and seller of the alleged infringing seeds. The probative force of the inspection report issued by the appraisal agency should be examined from the aspects of the source of the sample, the appraisal method, the appraisal procedure, and the appraisal qualification. The identification agency entrusted by the court conducted a germination test on the samples to be tested. After the successful germination confirmed that the seeds were vigorous, it used molecular marker identification methods to test them. Then, it issued an inspection report by national standards, which proved that the alleged infringing seeds were identical to the “Bainong 207” wheat variety. The Sales Department knowingly sold infringing seeds and should bear joint liability. Based on this, the SPC changed the judgment to require Fengmou Company and the Sales Department to stop infringing, and Fengmou Company to compensate for losses and reasonable expenses for rights protection totaling RMB 300,000 (Equivalent to US$ 41,310), of which the Sales Department shall bear joint liability within RMB 50,000 (Equivalent to US$ 6,885).
Typical Case 9: An infringement case of the new soybean plant variety “Qihuang 34”, Shandong Shengmou Seed Industry Company vs. Qingdao Limou Professional Cooperative, and Geng Mou; the first instance, Qingdao Intermediate People’s Court of Shandong Province (2024) Lu 02 Zhi Min Chu No. 34 – This case demonstrates the effective use of online evidence in seed industry infringement cases. At the same time, based on the evidence in the case, the court fully supported the rights holder’s claim for compensation. This reflects the court’s judicial orientation to strengthen the protection of the seed industry’s intellectual property rights.
Shandong Shengmou Seed Industry Company (“Shengmou Company’) is the exclusive licensee of the “Qihuang 34” soybean plant new variety. Qingdao Limou Professional Cooperative (“Limou Cooperative”) and its operator, Geng Mou, promised to sell and sell the “Qihuang 34” soybean seeds through TikTok video accounts and WeChat video accounts. According to statistics from the videos it released on different dates, the total amount of seeds it produced and sold that were alleged to be infringing reached 310 tons. Shengmou Company filed a lawsuit, requesting that Limou Cooperative and Geng Mou stop infringing and jointly compensate for the loss of RMB 300,000 (Equivalent to US$ 41,310) and reasonable expenses of RMB 12,596 (Equivalent to US$ 1,734).
The Intermediate People’s Court of Qingdao City, Shandong Province, held at first instance that Limou Cooperative and Geng Mou produced and sold seeds that infringed the “Qihuang 34” soybean plant new variety rights without permission, which constituted infringement, and they should bear civil liabilities such as stopping infringement and compensating for losses. The two defendants sold 310 tons of infringing soybean seeds online. Based on the notarized purchase price of RMB 7 per kilogram (Equivalent to US$ 0.96 per kilogram) by Shengmou Company, the infringing sales amounted to RMB 2.17 million (Equivalent to US$ 298,809). Based on this, the first instance judgment fully supported the economic loss of RMB 300,000 (Equivalent to US$ 41,310) claimed by Shengmou Company and supported the reasonable expenses of RMB 10,000 (Equivalent to US$ 1,377) for rights protection. After the first instance judgment, neither party appealed.
Typical Case 10: An infringement case of the new soybean plant variety “You6019”, Henan Xumou Seed Industry Company vs. Henan Huamou Seed Industry Company, Xinmou Agricultural Materials Business Department, and Mingmou Agricultural Materials Business Department; the first instance, Henan Zhengzhou Intermediate People’s Court (2023) Yu 01 Zhi Min Chu No. 1907; the second instance, the SPC (2024) SPC Zhi Min Zhong No. 713 – This case clarifies that the production and sale of authorized varieties in non-approved areas are infringements. It emphasizes that the protection of variety rights is not limited to the planting area. Such an infringement may affect the legitimate rights and interests of growers, so it can be used as a factor to aggravate the infringement.
Henan Xumou Seed Industry Company (“Xumou Company”) is the exclusive licensee of the “You 6019” soybean plant new variety. This variety passed the national variety evaluation in 2018 and is suitable for summer planting in Hubei, Chongqing, southern Anhui, northern Jiangxi, and southern Shaanxi. The “Zhongdou 40” soybean seeds produced by Henan Huamou Seed Industry Company (“Huamou Company”) were sold by Mingmou Agricultural Materials Business Department (“Mingmou Department”) in Hunan Province under the commission from Xinmou Agricultural Materials Business Department (“Xinmou Department”). These seeds were seized by local agricultural law enforcement departments. After testing, the “Zhongdou 40” seeds and the “You 6019” seeds are suspected to be the same variety. Xumou Company filed a lawsuit, requesting that Huamou Company, Xinmou Department, and Mingmou Department stop the infringement and compensate for losses and reasonable expenses of RMB 300,000 (Equivalent to US$ 41,310). The three defendants argued that Xumou Company had no right to assert its rights and should not receive financial compensation because their sales activities took place outside the approved suitable planting area for the “You 6019” variety.
The Intermediate People’s Court of Zhengzhou City, Henan Province, ruled at first instance that Huamou Company, Xinmou Department, and Mingmou Department should stop the infringements and compensate for losses and reasonable expenses of RMB 150,000 (Equivalent to US$ 20,655), RMB 10,000 (Equivalent to US$ 1,377), and RMB 5,000 (Equivalent to US$ 689) respectively. Huamou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that if the variety right is legal and within the effective protection period, it should be protected by law. The scope of prohibition of variety rights is not limited to the areas where the authorized varieties are suitable for planting or the approved areas. Whether the alleged infringement is carried out in the areas where the authorized varieties are suitable for planting or the approved areas is not a condition for the establishment of variety rights infringement. Producing and selling authorized variety propagation materials without the permission of the variety right holder in a non-approved area still constitutes infringement. Damages should not be adversely affected by the infringement occurring in a non-approved area. On the contrary, it can be used as a factor to aggravate the infringement because infringement in a non-approved area not only damages the rights and interests of the variety right holder but may also damage the interests of the growers. Huamou Company’s production and sale of the alleged infringing seeds in non-approved suitable planting areas constitutes infringement and should bear compensation liability. At the same time, based on the same authorized variety, the same infringement behavior and the infringing subject, the reasonable expenses spent by the variety right holder in the administrative enforcement procedure to protect its variety rights can be identified as reasonable expenses in the case of infringement of new plant variety rights, and used to determine the amount of compensation. The court, therefore, dismissed the appeal and upheld the original judgment.
Typical Case 11: An infringement case of the new varieties of rose plants including Lexteews, Dutch Mou Group Company, Aimou Agricultural Company vs. Lanzhou Mou Agricultural Technology Company; the first instance, Lanzhou Intermediate People’s Court of Gansu Province (2023) Gan 01 Zhi Min Chu No. 42, 43, 44 – The court explored diversified ways to resolve the dispute and ultimately settled the case through mediation, which not only equally protected the rights of foreign variety right holders, but also laid a solid foundation for future cooperation between the two parties.
Dutch Mou Group Company (“Dutch Company”) is the variety rights holder of three new rose plant varieties, including Lexteews. Aimou Agricultural Company (“Aimou Company”) is an affiliated company of the Dutch Company and is authorized to produce, promote, and sell a series of rose varieties, including Lexteews in China, and has the right to sue for related infringements. Lanzhou Mou Agricultural Technology Company (“Agricultural Company”) bred, promised to sell, and sold rose varieties, including Lexteews, on a large scale in a flower industry base. The Dutch Company and Aimou Company filed three infringement lawsuits, requesting that the Agricultural Company be ordered to stop the infringement and compensate for losses and reasonable expenses totaling more than RMB 10 million (Equivalent to US$ 1.38 million).
After the Lanzhou Intermediate People’s Court of Gansu Province accepted the case at first instance, Aimou Company immediately applied for property preservation of more than RMB 8 million (Equivalent to US$ 1.1 million) in the Agricultural Company’s account funds. The Agricultural Company’s rose planting has reached a certain scale. The first instance court organized mediation between the two parties many times, prompting the two parties to finally sign an authorization statement and a cooperation framework agreement, transforming the infringement implementation into authorized cooperation.
Typical Case 12: A contract dispute involving the planting of hand-torn pineapples, Hainan Fengmou Fruit Company vs. Ye Mouding; the second instance, Hainan Free Trade Port Intellectual Property Court (2023) Qiong 73 Min Zhong No. 328 – Based on the contractual agreement and legal provisions, the trial court settled the case by balancing the interests of seed users and seed suppliers. It ensured the safety of seed use and maintained the healthy development of the seed industry.
On 11 October 2020, Hainan Fengmou Fruit Company (“Fengmou Company”) and Ye Mouding signed a pineapple planting agreement. According to the agreement, Ye Mouding provided pineapple seedlings and planting fertilizers for a fee, provided planting technology free of charge, guaranteed that the pineapple fruit yield was not less than 3,000 kilograms per mu (one mu is about 666.666 square meters), and the cultivated pineapple seedling yield was not less than 12,000 plants per mu. After the pineapple fruit matured, Ye Mouding agreed to repurchase all the pineapple fruits at a price not less than RMB 3 per kilogram (Equivalent to US$ 0.41 per kilogram). During the cooperation, Fengmou Company filed a lawsuit, claiming the pineapple production and sales price did not conform to the agreement, requesting that Ye Mouding pay a penalty of RMB 505,008 (Equivalent to US$ 69,540), compensate for losses of RMB 288,985 (Equivalent to US$ 39,793), and repurchase pineapple seedlings at market price. Ye Mouding counterclaimed and requested Fengmou Company to pay RMB 115,396 (Equivalent to US$ 15,890) for seedlings and compensate for the loss of overdue payment. The first instance court ruled that Ye Mouding should compensate Fengmou Company for the losses, and Fengmou Company should pay the remaining amount of seedlings to Ye Mouding. Fengmou Company was dissatisfied and appealed to the Hainan Free Trade Port Intellectual Property Court (“Hainan Court”).
After accepting the case, the Hainan Court handled the case prudently and sought diversified solutions, considering that seeds and seedlings are important raw materials for agricultural production and their quality and safety are related to farmers’ income and agricultural development. It facilitated mediation between the two parties after communicating with the parties many times. Both parties signed the mediation agreement and immediately implemented the contents of the mediation agreement. The case was successfully resolved.
Typical Case 13: An unfair competition case involving the name of a well-known breeder,Mou Agricultural High-tech Company vs. Wanmou Group Company, and Jiangxi Wanmou Industrial Company; the first instance, Shangrao Intermediate People’s Court of Jiangxi Province (2024) Gan 11 Min Chu No. 10; the second instance, Jiangxi Higher People’s Court (2024) Gan Min Zhong No. 288 – Yuan Longping is a Chinese hybrid rice breeder and the father of hybrid rice in the world. His name has extremely high social influence and commercial value. The judgment in this case clarifies the legal standard for whether the commercial use of the name of a well-known breeder constitutes unfair competition.
Yuan Longping had signed a Yuan Longping Brand Rights License Agreement with Mou Agricultural High-tech Company (“Agricultural Company”), authorizing the company to exclusively use his name rights in its business activities. Wanmou Group Company and Jiangxi Wanmou Industrial Company (“Defendants”) have overlapping business scopes with the Agricultural Company. They use the words “National Rice Wannian Gong, Yuan Longping Title” on the outer packaging of rice and other commodities and in online publicity for promotion and sales. The Agricultural Company filed a lawsuit, requesting that the Defendants be ordered to immediately stop their unfair competition and compensate the company for economic losses of RMB 1 million (Equivalent to US$ 137,700) and reasonable rights protection expenses of RMB 100,000 (Equivalent to US$ 13,770).
The Shangrao Intermediate People’s Court of Jiangxi Province ruled in the first instance that the Defendants should immediately stop the unfair competition of producing and selling packaging products with the name and signature of Yuan Longping, immediately delete the promotional content that improperly uses the name and signature of Yuan Longping, and compensate for the losses and reasonable expenses of rights protection totaling RMB 50,000 (Equivalent to US$ 6,885). The Defendants were dissatisfied and filed an appeal.
The Jiangxi Provincial High People’s Court held in the second instance that using “Yuan Longping” in the form of inscriptions and signatures on the alleged infringing goods was commercial. Yuan Longping’s name has a high degree of popularity and influence, and is a name with a certain influence. The Agricultural Company enjoys the relevant commercial use rights of the name. The Defendants used the name “Yuan Longping” for product promotion and sales without legal authorization, which easily misled the relevant public into believing that its products had a specific connection with Yuan Longping or the Agricultural Company. It constituted a commercial confusion, violated the principle of good faith and recognized business ethics, damaged the legitimate rights and interests of the Agricultural Company, and constituted unfair competition. Based on this, the second instance court ruled to dismiss the appeal and uphold the original judgment.
Typical Case 14: An invalidation case of the new corn plant variety “FL218”, Guizhou Huimou Seed Industry Company vs. Plant Variety Review Committee of the Ministry of Agriculture and Rural Affairs, Hubei Kangmou Seed Industry Company; the first instance, Beijing Intellectual Property Court (2022) Jing 73 Xing Chu No. 4665; the second instance, the SPC (2024) SPC Zhi Xing Zhong No. 627 – This case clarified the scope of review of the procedure for declaring a variety right invalid upon application and the specific identification standards and allocation of the burden of proof in the procedure for confirming variety rights.
Hubei Kangmou Seed Industry Company (“Kangmou Company”) is the owner of the variety right of the new corn plant variety “FL218”. Guizhou Huimou Seed Industry Company (“Huimou Company”) filed a request for invalidation with the Plant Variety Review Committee of the Ministry of Agriculture and Rural Affairs (“Committee”), claiming that the variety did not have novelty because it had been mass-produced and sold before the application date, and the other varieties approved with it as a parent for breeding had also been mass-produced and sold. The Committee believed that the evidence in the case was insufficient to prove that the varieties involved lacked novelty and specificity and maintained the validity of the variety rights involved. Huimou Company was dissatisfied and filed an administrative lawsuit with the Beijing Intellectual Property Court. The court held that the “FL218” variety possessed novelty and specificity and rejected the lawsuit of the Huimou Company. The Huimou Company was dissatisfied and filed an appeal.
The SPC held in the second instance that Huimou Company only requested the declaration of invalidation of the variety right because the “FL218” variety did not have novelty and did not explicitly claim specificity. However, considering that Kangmou Company also agreed to review whether the “FL218” variety had specificity during the invalidation review procedure and administrative litigation, the invalidation review decision protected the rights and interests of the variety right holder to defend and listen to the opinions of the variety right holder. It did not constitute a procedural violation. The invalidation applicant needs to clarify the known varieties of the authorized varieties and prove that there is no obvious difference between the authorized varieties and the known varieties through evidence such as DNA identification results or field test results. The burden of proof should be borne by the invalidation applicant. Huimou Company failed to fulfill its burden of proof because it did not submit evidence to prove that the three parent varieties involved in the case were known varieties of the “FL218” variety, nor did it have preliminary evidence to prove that the “FL218” variety was the same as the three parent varieties involved in the case. As it failed to prove that the “FL218” variety did not have novelty and specificity, the appeal was dismissed, and the original judgment was upheld.
Typical Case 15: A criminal case involving the infringement of trade secrets of the new rice plant variety “Quanyou 822"; the first instance, the People’s Court of Hefei High-tech Industrial Development Zone, Anhui Province (2023) Wan 0191 Criminal Chu No. 611 – This case has effectively punished and prevented seed-related crimes by leveraging the legal deterrent power of criminal sanctions, purified the seed market, and created a good innovation environment for seed companies.
Anhui Mou High-tech Company (“High-tech Company”) is the owner of the new plant varieties “Quanyou 9311A”, “YR0822,” and “Quanyou 822”. Among them, the “Quanyou 822” rice seed was developed by the company’s scientific research team. The cultivation technology and genetic information of its mother, “Quanyou 9311A,” are the company’s core secrets and have not been disclosed to the public. Strict confidentiality measures have been taken by the High-tech Company. After the trial planting of “Quanyou 822” achieved mass production, the High-tech Company transferred the relevant technology to its wholly-owned subsidiary, Anhui Mou Seed Industry Company (“Seed Company”). According to the transfer contract, the Seed Company obtained the exclusive domestic production and operation rights, and all relevant personnel involved in the production and management of the seeds were agreed to strict confidentiality obligations. In 2019 and 2020, the Seed Company signed a Hybrid Rice Seed Production Contract with Deng Moujin, the legal representative of Mou Seed Professional Cooperative (“Seed Cooperative”), entrusting the Seed Cooperative to produce “Quanyou 822” rice seeds. The contract stipulates that the contractor shall ensure that the parents will not be lost, not privately bred, and not privately used for other purposes and that the seeds produced by it will not be lost. The loss of parents or private breeding will be subject to legal responsibility. Every year, technicians are stationed at the planting base to provide long-term guidance on planting, supervise production, and prevent rice seed loss. Since 2019, Deng Moujin, Wang Mouyong and Huang Mouyong of Mouxin Seed Industry Company (“Mouxin Company”) conspired to arrange for Huang Mou, an employee of the Seed Cooperative, to apply for more parent “Quan 9311A” from the Seed Company by applying more per mu, and privately bred “Quanyou 822” rice seeds outside the supervision of the Seed Company, and handed them over to Mouxin Company to sell 113,840 kilograms under the same brand, causing a loss of RMB 1,090,360 (Equivalent to US$ 150,143) to the High-tech Company. On 11 October 2023, the People’s Procuratorate of Hefei High-tech Industrial Development Zone, Anhui Province filed a public prosecution, accusing Deng Moujin, Wang Mouyong, Huang Mouyong and Huang Mou of obtaining the right holder's business secrets through improper means of false reporting and fraud, violating confidentiality obligations, and causing heavy losses to the business secret right holder. The circumstances are serious, and they should be held criminally responsible for infringing on business secrets.
The People’s Court of Hefei High-tech Industrial Development Zone, Anhui Province, held at first instance that Deng Moujin and Huang Mou violated the agreement with the right holder on keeping trade secrets, privately bred rice seeds, while Wang Mouyong and Huang Mouyong were responsible for sales, making illegal profits, causing major losses to the right holder of trade secrets. The court considered the circumstances were serious, and their behaviors had constituted the crime of infringing trade secrets. The defendants Deng Moujin, Huang Mouyong, Wang Mouyong, and Huang Mou were sentenced to fixed-term imprisonment ranging from one year and two months to ten months, and fined between RMB 200,000 (Equivalent to US$ 27,540) and RMB 20,000 (Equivalent to US$ 2,754).