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

Application for Variety Rights and Receipt Thereof

Article 19.   Where Chinese entities and persons apply for variety rights, they may file an application with the examining and approving authorities directly or through a representative agency commissioned for the purpose.

Where the new plant variety in respect of which Chinese entities and persons apply for vari-ety rights involves national security or major inter-ests and therefore needs to be kept confidential, it shall be dealt with in accordance with the relevant national regulations.

Article 20.   If a foreigner a foreign enterprise or any other foreign institution files an application for variety rights in China, the application shall be handled under these Regulations in accordance with any a-greement concluded between the country to which the applicant belongs and the People's Republic of China, or any international convention to which both countries are party, or on the basis of the principle of reciprocity.

Article 21.   For the purposes of applying for variety rights, an application and specification conforming to the prescribed forms as well as a photograph of the variety shall be submitted to the examining and approving authorities. The application documents shall be written in Chinese.

Article 22.   The date on which the examining and approv-ing authorities receive the variety rights application documents shall be the filing date of the applica-tion. Where the application documents are filed by mail, the postmark date shall be the filing date of the application.

Article 23.   Where, within 12 months from the date on which any applicant has first filed an application for variety rights in a foreign country, the said applicant files an application for variety rights in China in respect of the same new plant variety, he or it may, in accordance with any agreement con-cluded between the said foreign country and the people's Republic of China or any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.

Any applicant who claims the right of priority shall make a written statement when the application is filed, and shall submit ,within three months, a copy of the variety rights application documents that were first filed, as confirmed by the original receiving authority; if the applicant fails to make the written statement or fails to submit a copy of the variety rights application documents under the provisions of these Regulations, the claim to the right of priority shall be deemed not to have been made.

Article 24.   Where the variety rights application conforms to Article 21 of the Regulations, the examining and approving authorities shall accept it, assign the fil-ing date and a filing number and serve notice on the applicant within one month from the receipt of the application to pay an application fee.

Where the variety rights application does not, or after amendment still does not, conform to Article 21 of the Regulations, the examining and approving authorities shall not accept it and shall notify the applicant accordingly.

Article 25.   An applicant may amend or withdraw his or its variety rights application at any time before the variety rights are granted.

Article 26.   Any application filed by a Chinese entity or person with a foreign country for variety rights in respect of a new plant variety that has been bred in China shall be registered before the examining and approving authorities.