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Regulations on the Protection of New Varieties of Plants (1997)

Content and Ownership of Variety Rights

Article 6.   The entity which or the person who has ac-complished the breeding has an exclusive right in their protected variety. Except otherwise provided in these Regulations, no other entity or person shall, without the consent of the holder of the variety rights (hereinafter referred to as the "vari-ety rights holder"), produce or sell for commercial purposes the propagating material of the said pro-tected variety, or use for commercial purposes the propagating material of the protected variety in a repeated manner in the production of the propagating material of another variety.

Article 7.   In the case of job-related breeding accom-plished by any person in undertaking tasks for the entity to which he belongs, or primarily by using the facilities of that entity, the right to file an application for variety rights in respect of the new plant variety shall belong to the entity in question; for breeding that is not job-related, the right to file such an application shall belong to the person accomplishing the breeding. Upon approval of the application, the variety rights shall belong to the applicant.

For commissioned breeding or jointly-conduct-ed breeding, the ownership of the variety rights shall be agreed upon by the parties in a contract; failing such an event, the variety rights shall belong to the entity or person commissioned to conduct or jointly conduct breeding.

Article 8.   One new plant variety shall be granted only one set of variety rights. If two or more applicants apply separately for variety rights in respect of the same new plant variety, the variety rights shall be granted to the, person who applies first; in the case of a simultaneous application, the variety rights shall be granted to the person who has first accom-plished the breeding of the new plant variety concerned.

Article 9.   The right to file an application for variety rights in respect of a new plant variety and the variety rights may be assigned in accordance with the law.

If a Chinese entity or person wishes to assign to a foreigner the right to file an application or the variety rights in respect of a new plant variety bred in China, such assignment shall be approved by the examining and approving authorities.

In the case of an assignment within China of the right to file an application or of the variety rights by a State-owned entity, it shall be submit-ted in accordance with the relevant national regula-tions for approval by the competent administrative departments concerned.

The parties involved in the assignment of the right to file an application or of the variety rights shall conclude a written contract, and shall register the assignment before the examining and approving authorities, which in turn shall published the assignment.

Article 10.   Without prejudice to other rights of the variety rights holder under these Regulations, the exploitation of the protected variety shall not re-quire authorization from, or payment of royalties to, the variety rights holder for the following purposes:

(i) exploitation of the protected variety for breeding and other scientific research activities;

(ii) the use for propagating purposes by farm-ers, on their own holdings, of the propagating material of the protected variety harvested on their own holdings.

Article 11.   The examining and approving authorities may, in the national or the public interest, decide to grant a compulsory license to exploit new plant varieties, which should be subsequently registered and published. The entity which or the person who is granted a compulsory license for exploitation shall pay the variety rights holder a reasonable exploitation fee, the amount of which shall be fixed by consultation between the two parties. Where the parties fail to reach an agreement, the examining and approving authorities shall adjudicate.

Where the variety rights holder is not satisfied with the decision to grant a compulsory license or is not satisfied with the adjudication regarding the fee payable for exploitation, he or it may, within three months from the date of receiving the notifi-cation, file a suit with the People's Court.

Article 12.   Regardless of whether or not the term of the protection of the protected variety has expired, the denomination of the protected variety as used in its registration must be used for sales thereof.