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CIOPORA Gets Full Picture of China’s PVP at High-Level Bilateral Meeting

CIOPORA meets high-level officials of Chinese Ministry of Agriculture and Rural Affairs (MARA) and State Forestry and Grassland Administration (SFGA) in August in Beijing.

August 29, Beijing – at its first bilateral meeting with the Chinese authorities since the All Asian Plant Breeders’ Rights Conference in 2006, MARA, SFGA and CIOPORA held candid talks on the challenges of ornamental and fruit breeders and China’s Plant Variety Protection (PVP), laying an important cornerstone for cooperation in the future. The bilateral talks covered a wide range of topics including clarifications of CIOPORA’s positions and China’s PVP provisions, drawing a promising picture for potential improvements. In their quest to enhance growers' access to new plant varieties and attract more PVR registrations from foreign plant breeders, the Chinese authorities opened up about the latest developments and future prospects.

Restructuring underway. As a result of the current restructuring, a new overarching objective of MARA was to guarantee food security with the main focus on plant innovation. This entails strengthening of the title holder’s rights and improving the inspection and examination processes, which were now under the oversight of the Seed Industry Management Division (former Seed Management Bureau). Regarding PVP, i.e. DUS testing and administrative enforcement, the State Forest and Grassland Administration (former SFA) remained in charge with some new responsibilities added to its purview. Both MARA and SFGA were entrusted with the revision of China’s PVR law and regulations.

In the know about “tomorrow”. The PVP office Division Director Prof Cui Yehan, (The Development Center of Science and Technology, MARA) explained that the authorities were carrying out a study on such issues as EDV, the extension of the scope of right and revision of the farmers’ exemption. Additionally, a separate 100-page enforcement manual was currently under revision with the goal to summarize and interpret the PBR enforcement procedures.

With a half a billion small farmers populating its countryside, China aimed at maintaining it is current membership in UPOV 1978 but, recognizing the need for a stronger PVP, pursued a de facto upgrade to a higher standard. While, according to MARA, the law revision may take a few years, some steps to attract more foreign breeders to the market had been already undertaken with waiving of PVR fees in April 2017. Additionally, MARA was preparing the 11th batch of protectable species, which would include many ornamentals and fruits requested by CIOPORA.

The status quo. Along with the discussions on EDV and farmers’ exemption, CIOPORA sought confirmation of its current knowledge and understanding of China’s PVR regime. The Chinese officials explained that currently the concept of the “not clearly distinguishable variety” had only the function to exclude such varieties from the possibility of a grant. However, the law lacked the provision that such varieties also fall under the scope of the earlier protected variety. In respect of the provisional protection, MARA and SFGA confirmed that the right exists from the moment of application but can only be enforced retrospectively after the grant of the title.

In regards to novelty, CIOPORA asked for clarification on the two new novelty destroying acts in the recently revised Chinese Seed Law (Article 92):

- Confirmation from the agriculture and forestry departments at the provincial level that according to area grown, the variety has widely spread;

- Agricultural varieties which have been recorded or registered for more than two years without an application for new PVR.

Whereas the second related only to agricultural varieties in MARA’s jurisdiction, the first rule aimed at encouraging breeders to apply for a title as early as possible. CIOPORA pointed out that this condition would also apply in cases where varieties were introduced to the market by third parties without breeders’ consent. The Chinese shared CIOPORA’s opinion that such cases should be exempt and would enjoy differential treatment by MARA.

The scope of right did not currently include export and import, which should be accounted for in the law amendment process. On a positive note, the law contained a broad definition of propagating material including any plant material capable of producing a plant true-to-type. Both MARA and SFGA saw the possibility to enforce PBR at any point within the supply chain as beneficial as enforcing it with small farmers was extremely difficult. They mentioned a current court case directly addressing this issue and were keen to see the court’s interpretation.

In respect of the nongmin exemption, MARA and the SFGA agreed with the interpretation of nongmin as referring to “peasants” and not farmers and growers and having a narrower yet undefined scope. The authorities were surprised to learn that almost all UPOV 1991 countries, with Vietnam being the last exception, did not extend farmers’ exemption to ornamental and fruit crops.

The Chinese delegates noted that as to the farmers’ exemption CIOPORA called for different rules for ornamental and fruit crops. The officials reported that they had been considering new definitions of the farmer and the scope of use for the potential new law but could not predict whether these would be passed by the lawmakers. Reportedly, small farmers, specifically in Southern China, have been increasingly switching to ornamentals and fruits, using profits from sales to buy food. CIOPORA was alarmed by the explanation that this phenomenon could also be considered subsistence farming. Expressing their deep concern with this position, CIOPORA emphasized the devastating effect it might have on country’s horticulture by deflecting the flow of new innovative varieties to the Chinese market. CIOPORA argued that the support for small farmers should come from the government in form of subsidies and could not be carried out at breeders’ cost. As innovative varieties were a game-changing element for the local horticulture providing higher profit margins than the subsistence crops and considering the low percentage of royalties in a farmer’s income, a broad farmers’ exemption could not be justified and was the most concerning weakness of any PBR law.

On enforcement reference, it was understood that the Chinese Ministries are willing to work on the improvement of the current enforcement rules and procedures. Prof. Cui Yehan pointed out that the MARA enforcement rules were being reviewed to provide more clarity, noting that a well-thought administrative procedure could spare parties a lengthy and costly court trial.

On August 30, in a separate meeting with the Supreme People’s Court of China Justice Ms LUO Xia (third from the left), CIOPORA received clarifications as to the Supreme Court’s interpretation of the key PBR law concepts and learned about evidence collection in PBR cases and the specifics of PBR-related contract law.

Ways forward. In conclusions, both Prof Cui Yehan of MARA and Mr Long Sanqun of SFGA emphasized that CIOPORA positions and its input to the Chinese PBR law were appreciated and duly noted. As the country aimed at the further development of its PVP regime moving in direction of UPOV 1991 standard, they wished to receive more input from CIOPORA in the future. Making reference to a MoU with the CPVO, they encouraged foreign breeders to bring new varieties to China showcasing their latest creations in a protected area with an on-site DUS testing. Breeders open to participation in the project would be granted support by the Chinese government. The ways forward proposed by CIOPORA and noted by the Chinese counterparts included extending invitations to MARA and SFGA officials to the CIOPORA events, organizing annual bilateral meetings and even testing the practical effectiveness of China’s PVP system by joint enforcement actions. Ending on a high note, the meeting served as an important milestone for the strengthening of ties between China and CIOPORA, fulfilling the organization’s long-standing goal to establish and maintain a continuous open dialogue with the Chinese Government.

List of participants:

Chinese Ministry of Agriculture and Rural Affairs (MARA) represented by the Development Centre of Science & Technology:

- Mr. Zhu Yan, Deputy Director, Development Centre of Science & Technology

- Prof. Cui Yehan, Division Director, PVP Office

- Dr. Chen Hong, Division Deputy Director, PVP Office

- Ms. Yang Yang, Senior Examiner; coordinator of international cooperation

- Ms. Yang Xuhong, Examiner

The Seed Management Bureau represented by:

- Dr. LV Bo, Deputy Director

- Mr. Li Jianmeng, Division Deputy Director, Seed Development Division

The State Forestry and Grassland Administration of China was represented by the Development Centre of Science & Technology:

- Mr. Long Sanqun, Deputy Director, PVP Office

- Mr. Wang Qi, Director, PVP Division, PVP Office

- Prof. Dr. Zheng Yongqi, Adviser and International Representative of the SFGA

- Dr. Gao Wei, Examiner

The CIOPORA team:

- Mrs Wendy Cashmore, Co-Vice President of CIOPORA

- Mr Bruno Etavard, CIOPORA Board member of CIOPORA, Chair of the International Rose Breeders Association (IRBA)

- Mrs Cathy Chambers, Acting General Manager China, Costa Group Berry International, Australia

- Ms Alanna Rennie, Baker McKenzie, Australia, CIOPORA expert for China,

- Dr YU Shujun, PBR Attorney, Beijing Hengda Agforest, China

- Dr Edgar Krieger, Secretary General of CIOPORA.

Other guests on invitation of SFGA:

- Ms. Tao Tao, Plant Variety Agent, China


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