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

Term, Termination and Invalidity

Article 34.   The term of protection of variety rights, counted from the date of grant thereof, shall be 20 years for vines, forest trees, fruit trees and orna-mental plants and 15 years for other plants.

Article 35.   The variety rights holder shall pay annual fees from the year in which the variety rights are grant-ed, and shall furnish propagating material of the protected variety for the purposes of control as re-quired by the examining and approving authorities.

Article 36.   Variety rights shall be terminated prior to the expiration of the term thereof in any of the follow-ing cases:

(a) where the variety rights holder makes a written statement renouncing his variety right;

(b) where the variety rights holder has not paid the annual fees as prescribed;

(c) where the variety rights holder has not furnished, in the manner required by the examining and approving authorities, such propagating mate-rial of the protected variety necessary for control;

(d) where, on control, the protected variety no longer conforms to the features. and characteris-tics that existed when the variety rights were granted.

The termination of the variety rights shall be registered and published by the examining and approving authorities.

Article 37.   From the date on which the examining and ap-proving authorities publish the grant of variety rights, the Re-Examination Board for New Varieties of Plants may, ex officio or on the basis of a written request made by any entity or person, revoke the variety rights in any variety that is not in conformity with the provisions of Articles 14, 15, 16 and 17 of these Regulations, or change the denomination of any variety that is not in confor-mity with the provisions of Article 18 of these Regulations. The decision to revoke variety rights and the decision to change the denomination shall be registered and published by the examining and approving authorities, and shall be communicated to the parties concerned.

Where any party is not satisfied with the deci-sion of the Re-Examination Board for New Varieties of Plants, he or it may, within three months from the date of receiving such communi-cation, file a suit with the People's Court.

Article 38.   The variety rights that have been revoked shall be deemed non-existent from the outset.

The decision to revoke variety rights shall have no retroactive effect on any judgment or rul-ing pronounced and enforced by the People's Court concerning the infringement of a new plant vari-ety, or on any decision made and enforced by the administrative departments of agriculture and forestry of the People's Governments at provincial level or above concerning the infringement of a new plant variety, or on any executed license con-tract for exploitation of a new plant variety or any executed contract of assignment of the rights in a new plant variety. However, any damage caused to any other person due to bad faith on the part of the variety rights holder shall be equitably compensat-ed.

If no repayment of the fees for the exploita-tion of the new plant variety or of the price for the assignment of the variety rights, pursuant to the provisions of the preceding paragraph, is made by the variety rights holder or the assignor of the va-riety rights to the licensee or the assignee, and if this is obviously contrary to the principle of equi-ty, the variety rights holder or the assignor of the variety rights shall repay the whole or part of the fees for the exploitation of the variety or of the price for assignment of the variety rights to the licensee or the assignee.