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

Examination and Approval of Variety Rights

Article 27.   Upon payment of the application fee, the examining and approving authorities shall carry out a preliminary examination on the variety rights application to determine the following:

(a) whether it is part of the botanical genera or species included in the list of protected plant varieties;

(b) whether it conforms to the provisions of Article 20 of the Regulations;

(c) whether it conforms to the provisions on novelty;

(d) whether the denomination of the new plant variety is adequate.

Article 28.   The examining and approving authorities shall complete the preliminary examination within six months after the variety rights application is for-mally received. Where the variety rights application is found acceptable on preliminary examination, the examining and approving authorities shall have it published and serve notice on the applicant to pay the examination fee within three months.

Where the variety rights application is found unacceptable on preliminary examination, the ex-amining and approving authorities shall invite the applicant to state his observations or make amend-ments; where an applicant fails to respond within the time limit or the application is still unaccept-able after amendment, the application shall be refused.

Article 29.   After the applicant has paid the prescribed examination fee, the examining and approving authorities shall carry out a substantive examina-tion of the distinctness, uniformity and stability of the variety in respect of which variety rights are applied for.

Where the applicant has not paid the pre-scribed examination fee, the variety rights applica-tion shall be deemed to have been withdrawn.

Article 30.   The examining and approving authorities shall conduct the substantive examination on the basis of application documents and other relevant writ-ten information. Where they deem it necessary, the examining and approving authorities may entrust a designated testing institution with undertaking tests or with inspecting the results of growing tests or other trials that have already been carried out.

For the purposes of examination, the applicant shall at the request of the examining and approving authorities, furnish necessary information and the propagating material of the new plant variety in question.

Article 31.   Where the variety rights application is found to be in conformity with the provisions of these Regulations on substantive examination, the examining and approving authorities shall take a decision to grant the variety rights, issue the new variety rights title, and have it registered and pub-lished.

Where the variety rights application is found not to be in conformity with the provisions of these Regulations on substantive examination, the examining and approving authorities shall refuse the application and notify the applicant accordingly.

Article 32.   The examining and approving authorities shall set up a Re-Examination Board for New Varieties of Plants. Where any applicant is not satisfied with the decision of the examining and aproving authorities refusing a variety rights application, that applicant may, within three months from the date of receiv-ing the notification, request the Re-Examination Board for New Varieties of Plants to carry out a re-examination. The Re-Examination Board for New Varieties of Plants shall, within six months from the date of receiving the request for re-exami-nation, take a decision and notify the applicant accordingly.

Where any applicant is not satisfied with the re-examination decision of the Re-Examination Board for New Varieties of Plants, that applicant may, within 15 days from the date of receiving the notification, file a suit with the People's Court.

Article 33.   After the variety rights have been granted, for the period beginning on the date on which an ac-ceptable application is published on preliminary examination and ending on the date of grant of variety rights, the variety rights holder is entitled to claim compensation from an entity which, and an person who, has produced or sold the propagating material of the protected variety in question for commercial purposes without his consent.