(AGRICULTURE PART)

 

（Being effective as of January 1 2008）

 

Chapter I

General Provisions

 

 Article 1 These Rules are formulated in accordance with the Regulations of the People’s Republic of China on the Protection of New Varieties of Plants (hereinafter referred to as the “Regulations”).

 

Article 2 New varieties of agricultural plants shall cover those of food crops, cotton, oil crops, bast-fiber plants, sugar crops, vegetables (including water melon and mask melon), tobacco, mulberries, tea plants, fruit trees (except for dry fruits), ornamental plants (except ligneous plants), grasses, green manure, herbaceous medicinal plants, edible fungi, protonemata, rubber tree and other plants.

 

Article 3 In accordance with Article 3 of the Regulations, the Ministry of Agriculture shall be the authority for the examination and approval of the right in new varieties of agricultural plants (hereinafter referred to as the “variety right”), and shall grant such right in light of the provisions of the Regulations.

 

The Office for Protection of New Varieties of Agricultural Plants under the Ministry of Agriculture (hereinafter referred to as “the Office for Protection of Varieties ”) shall undertake the tasks of receiving and examination of application for variety right, and shall be responsible for organizing the testing of new plant varieties and the storage of the propagating materials

 

Article 4 No variety right shall be granted to any new variety of plants that is detrimental to public interest and the ecological system.

 

Chapter II

Contents and Ownership of Variety Right

 

Article 5 The “propagating materials” referred to in the Regulations means planting materials or other parts of the body ofa plant that can propagate plants including seeds and fruits as well as roots, stems, seedlings, buds and leaves.

 

Article 6 Any entity or individual applying for variety right shall be generically designated as applicant for variety right; and any entity or individual to whom a variety right is granted shall be generically designated as holder of variety right.

 

Article 7 Job-related breeding accomplished by any individual in undertaking tasks of the entity to which he belongs as referred to in Article 7 of the Regulations shall mean any of the following:

 

(i)　　　　　　　　 breeding accomplished in the course of performing his duty;

 

(ii)　　　　　　　 breeding accomplished in execution of any task other than his own duty, which was assigned to him/her by the said entity; and

 

(iii)　　　　　　 breeding accomplished within three years after his/her resignation, retirement or change of work, where the breeding relates to his/her own duty in or to the tasks assigned to him/her by the entity to which he/she previously belonged.

 

The facilities of the entity referred to in Article 7 of the Regulations shall mean the financial resources, instruments and equipment, and testing sites of the entity as well as the breeding materials and technical data owned by the entity, of which the disclosure to the public is not yet permitted.

 

Article 8 The person who has accomplished the breeding of new varieties as referred to in Article 8 of the Regulations shall mean any entity or individual who has accomplished the breeding of new varieties (hereinafter referred to as “variety breeder”).

 

Article 9 The person who has accomplished the breeding of new varieties (hereinafter referred to as “breeder”) shall mean any person who has made creative contributions to the breeding of new varieties. Those who are responsible only for organizational and managerial work, who provide access to facilities or perform other auxiliary functions shall not be considered as breeders.

 

Article 10 For any identical new plant variety, only one variety right shall be granted.

 

Where two or more applicants apply separately, on the same day, for variety right of an identical plant variety, they shall hold consultations among themselves to decide the person or persons who shall be entitled to file the application. Where the consultation fails to reach consensus, the Office for Protection of Varieties may require the applicants involved to provide, within the specified time limit, evidence to prove that it or he is the first to accomplish the breeding of the variety concerned. Where no evidence is provided within the said time limit, the application shall be deemed to have been withdrawn. Where the evidence provided is insufficient to serve as the basis for making judgment, the Office for Protection of Varieties shall reject the application.

 

Article 11 If a Chinese entity or individual wishes to assign to a foreigner the right to file an application for a new plant variety or the variety right of a new plant variety bred in China, such assignment shall be subject to the examination and approval by the Ministry of Agriculture.

 

Where the right to apply for variety right or the variety right is assigned, the parties concerned shall conclude a written contract and register it with the Ministry of Agriculture. The Ministry of Agriculture shall announce the assignment. The assignment shall take effect as of the date of the announcement.

 

Article 12 The Ministry of Agriculture may decide to grant a compulsory license to exercise variety right in any of the following circumstances:

 

(i)　　　　　　　　 where it is for the needs of national or public interests;

 

(ii)　　　　　　　 where the variety right holder has no justified grounds neither to exploit the variety himself, nor to authorize others to exploit it under reasonable conditions;

 

(iii)　　　　　　 where, in respect of the variety of an important crops, although the variety right holder has already exploited it, the exploitation obviously cannot meet the demands of the domestic market, and the variety right holder does not intend to authorize itsexploitation by others under reasonable conditions.

 

 

Anyone who requests for compulsory license shall submit the request to the Ministry of Agriculture. It or he shall state the grounds thereof, and provide supporting documents each in two copies.

 

The Ministry of Agriculture shall make a decision within 20 work days from the date on which it receives the request. Where it needs to organize experts for survey and appraisal, the time limit for such survey and appraisal shall not exceed three months. Where a request for compulsory license is approved, the Ministry of Agriculture shall notify the variety right holder and the person who made the request, and the decision shall be announced; where the request for compulsory license is rejected, the Ministry of Agriculture shall notify the person who made the request and state the reasons thereof.

 

Article 13 Any party who, under paragraph two of Article 11 of the Regulations, requesting the Ministry of Agriculture for the adjudication of the exploitation fees, shall file a request to that effect, and provide supporting documents to testify the failure of reaching an agreement. The Ministry of Agriculture shall make a decision within three months from the date of receipt of the request and shall notify the parties concerned accordingly.

 

Chapter III

Conditions for the Grant of Variety Right

 

Article 14 In accordance with the provisions of Rules 45 of the Regulations, the Ministry of Agriculture may grant variety right to any variety that is included in the list of protected genera and species of plants, provided that in respect of which an application for variety right is filed within one year from the date of the releasing of the said list , and the propagating materials of the said variety, with the consent of the variety breeder, had been on sale for less than four years within the territory of China prior the date of the application, and that the requirements for distinctness, uniformity, stability and the denomination are complied with.

 

Article 15 Any of the following circumstances shall be regarded as the sale as referred to in Article 14 of the Regulations:

 

(i)　　　　　　　　 transfer to others, in a form of sale, the propagating material of a variety in respect of which an application for variety right is filed;

 

(ii)　　　　　　　 transfer to others, in a form of barter, the propagating materials of a variety in respect of which an application for variety right is filed;

 

 

(iii)　　　　　　 transfer to others, in a form of buying shares, the propagating materials of a variety in respect of which an application for variety right is filed;

 

(iv)　conclude a production agreement in respect of the propagating materials for which an application for variety right is filed ; and

 

(v)　 any other forms of sale.

 

Any of the following circumstances shall be regarded as the sale with the consent of the variety breeder as referred to in Article 14 of the Regulations:

 

(i)　　　　　　　　 sale by the variety breeder itself/himself;

 

(ii)　　　　　　　 sale by the interior institutions of the variety breeder;

 

(iii)　sale by the enterprises in which the variety breeder is the sole or one of the stock holders ;

 

(iv)　any other sales as prescribed by the Ministry of Agriculture.

 

Article 16  “Variety known prior to the filing of the application”as referred to in Article 15 of the Regulations shall cover those that are announced as qualified after the preliminary examination, those that have passed the variety examination and approval appraisal, or those that are already spread for use.

 

Article 17 The “relevant features or characteristics” as referred to in Article 16 and 17 of the Regulations shall cover at least those features or characteristics that are used for the examination of distinctness, uniformity and stability, or for the description of the variety when going through the granting procedures 

 

Article 18 None of the following may be used for the denomination of a new variety:

 

(i)　　　　　　　　　　  those consisting of numbers only;

 

(ii)　　 those in violation of national laws or social morals, or having the nature of ethnic discrimination;

 

(iii)　　those using names of countries;

 

(iv)　　those using names of places of administrative districts at county level or above, or the names of well known places in foreign countries;

 

(iv)　　　　　　  those using the same or similar identifying names of intergovernmental international organizations, or famous international or national organizations;

 

(v)　　　　　　　  those that are liable to mislead as to the features or characteristics of the new variety of plant, or as to the identity of the variety breeder;

 

(vi)　　　　　　  those that are the known denominations of the same or similar genera or species of plants; and

 

(viii)　those constituting exaggerated advertising.

 

For any varieties that have passed the examination and approval appraisal, or for any genetically modified plant varieties that have obtained the Safety Certificate for Agricultural Genetically Modified Organism (for productive use), if the denomination of the variety conforms to the provisions for the denomination of a new plant variety, thedenomination ofthe variety in respect of which variety right is applied for shall be in conformity with the denomination used for variety examination and approval appraisal or for safety examination for agricultural genetically modified organism.

 

Chapter IV

Application for Variety Right and Receipt Thereof

 

Article 19 Where Chinese entities or individuals apply for variety right, they may file an application with the Office for Protection of Varieties directly or through a representative agency.

 

Where any foreigner, foreign enterprise or foreign organization with no habitual residence in China apply for variety right with the Office for Protection of Varieties, it shall appoint an agency to act as his or its agent.

 

Where an applicant who appoints an agency to apply for variety right or to handle related matters, he or it shall sign a power of attorney with the agency, specifying the matters and the scope of the power entrusted. The agency, when filing applications with the Office for Protection of Varieties shall submit at the same time the power of attorney. The Office for Protection of Varieties shall contact directly the agency in the process of receiving and examination of the above-mentioned applications.

 

Article 20 Where applying for variety right, the applicant shall file with the Office for Protection of Varieties a request, a specification andphotograph(s)of the varieties each in duplicate. He or it shall, at the same time, submit the electronic version of the request and the specification.

 

The request and the specification shall be in the forms as prescribed by the Office for Protection of Varieties.

 

Article 21 The specification as submitted by the applicant shall include:

 

(i)　　　　　　　　　　　　  a provisional denomination of the new variety in respect of which an application for variety right is filed, the said denomination shall be the same as that appeared in the request;

 

(ii)　　　　　　　　　　　  the denomination both in Chinese and in Latin of the genera or species to which the variety that has applied for variety right belongs;

 

 

(iii)　　　　　　　　　　  the variety breeding process and method, including detailed indication of pedigree and breeding process as well as the origins and denomination of its parents or other propagating materials used for such purpose;

 

(iv)　　 a description on the selling of the said variety;

 

(iv)　　　　　　　　　　　 the similar varieties that are selected and the reasons thereof;

 

(v)　　　　　　　　　　　　 a detailed description of the distinctness, uniformity and stability of the variety in respect of which an application for variety right is filed;

 

(vi)　　　　　　　　　　　 an indication on the regions or environmental elements that are suitable for growing such variety and on the relevant cultivating techniques;

 

(vii)　　　　　　　　　　 a table of comparison on their respective features or characteristics among the variety in respect of which an application for variety right is filed and those which are its similar variety or varieties.

 

The “similar variety or varieties” as referred to in (v) and (viii) of the preceding paragraph shall mean the variety or varieties that are most similar to the variety applying for variety right in respect of the relevant features or characteristics among all known varieties 

 

Article 22 The photographs submitted by the applicant shall be in conformity with the following  requirements:

 

(i)　　　　　　　　 helpful to illustrate the distinctness of a variety in respect of which the application is filed;

 

(ii)　　　　　　　 showing on the same photograph the comparison concerning the same features or characteristic between a variety in respect of which an application for variety right is filed and the similar variety or varieties;

 

(iii)　　　　　　 in colour, or where necessary, in blackand white as may be required by the Office for Protection of Varieties;

 

(iv)　of a size of 8.5 cm x12.5 cm or of 10 cm x15 cm; and

 

(v)　 accompanied by a brief graphic description.

 

Article 23 The Office for Protection of Varieties shall refuse to accept any document for variety right application in any of the following circumstances:

 

(i)　　　　　　　　 where the application document is not written in Chinese;

 

(ii)　　　　　　　 where the request,  the specification or the photograph is missing;

 

(iii)　　　　　　 where the request, the specification or the photograph is not in conformity with the form requirements as prescribed by these Rules;

 

(iv)　where the documents  are not typed or printed;

 

(iv)　　　　　　  where the writing is illegible or has alterations;

 

(v)　　　　　　　  the name, address or postal code of the applicant or the contact person is missing or unclear; and

 

(vi)　　　　　　  where an agency is appointed, the power of attorney is missing.

 

 

Article 24 Where any Chinese entity or individual intends to file an application for variety right in a foreign country in respect of a new plant variety bred in China, it or he shall file an application for registration with the Ministry of Agriculture.

 

Article 25 Where a priority right is claimed under Article 23 of the Regulations, the applicant shall indicate in the application the filing date and the number of the initial application for variety right as well as the name of the country or organization that has accepted it; in the absence of such indications, the priority right shall be deemed not to have been claimed. The copy of the initial application submitted by theapplicant shall be certified by the competent authority of the country in which the application was filed.

 

Article 26 Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for variety right or claims the priority right, the Office for Protection of Varieties may ask the applicant to submit the following documents where it deems it necessary:

 

(i)　　　　　　　　 where the applicant is an individual, a certificate indicating his nationality;

 

(ii)　　　　　　　 where the applicant is an enterprise or other organization, a certificate indicating its business office or the site where the applicant has its principal business office; and

 

(iii)　　　　　　 certifying documents indicating that the country to which the foreigner, foreign enterprise or other foreign organization belongs recognizes that any Chinese entity and individual enjoys national treatment in respect of the right to apply for variety right, priority right and any other right related to variety right in the said country.

 

 

Article 27 Where, within 12 months from the date on which the applicant who filed an application for variety right with the Office for Protection of Varieties files an application for variety right in a foreign country, he or it may, in accordance with any agreement concluded between the said foreign country and China or any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of priority right, request the Office for Protection of Varieties to issue a certificate concerning priority right.

 

Article 28 Where under paragraph two of Article 19 of the Regulations, any new plant variety, filed for variety right by a Chinese entity or individual, involves the national security or major interests and therefore needs to be kept confidential, the applicant shall indicate this fact in the application. The Office for Protection of Varieties shall make a decision, upon examination, as to whether it should be dealt with as a confidential application, and shall notify the applicant accordingly. Where the Office for Protection of Varieties considers it necessary to keep an application confidential, it shall deal with it as a confidential application and shall notify the applicant accordingly even though the applicant has not made such an indication.

 

Article 29 The propagating materials of the variety in respect of which an application for variety right is filed as furnished by the applicant shall be in consistency with those as described in its/his application for variety right, and shall be in conformity with the following:

 

(i)　　　　　　　　 free from any accidental damage;

 

(ii)　　　　　　　 free from any chemical treatment;

 

(iii)　　　　　　 free from quarantinable and harmful organisms; and

 

(iv)　　　　　　  where the propagating materials submitted are seeds or fruits, the seeds or fruits shall be those that are recently harvested.

 

 

Article 30 Where the Office for Protection of Varieties considers it necessary, for the purposes of examination and testing of a variety in respect of which an application for variety right is filed, the applicant shall furnish the propagating materials of the said variety as well as its similar variety or varieties. Where a variety in respect of which an application for variety right is filed is a genetically modified variety, the applicant shall furnish a copy of the Safety Examination and Approval Certificate of Agricultural Genetically Modified Organism or the Safety Certificate for Agricultural Genetically Modified Organism (for productive use) that are issued at the stage of test production.

 

The applicant shall, within three months from the date of receipt of the notification from the Office for Protection of Varieties, furnish the propagating materials. Where the propagating materials are in the form of seed or fruit, they shall be sent to the culture collection centre for New Varieties of Agricultural Plants under the Office for Protection of Varieties (hereinafter referred to as the “culture collection centre”). Where asexual propagating materials such as seedlings, bulbs, tubers and roots are concerned, they shall be sent to the testing institutions designated by the Office for Protection of Varieties.

 

Where the quantity of the propagating materials furnished by the applicant is less than that as prescribed by the Office for Protection of Varieties, the culture collection centre or the testing institutions shall notify the applicant to furnish the amount that is missingwithin one month from the date of receipt of the notification. In exceptional cases, however, where though the applicant has furnished the required amount of the propagating materials, it is still insufficient for the purposes of testing or examination, the Office for Protection of Varieties shall have the right to require the applicant to furnish the amount that is missing.

 

Article 31 The propagating materials shall be subject to plant quarantine in accordance with the relevant provisions. Those found unacceptable upon quarantine or not have been quarantined shall be refused by the culture collection centres or the testing institutions .

 

The culture collection centre or the testing institution shall issue a written note of acknowledgement upon receipt of the propagating materials furnished by the applicant, and shall finish the testing and examination on viability and other items within 20 work days (except for plants with rest period) from the date of receipt of the propagating materials. Where the said materials are found acceptable upon examination, the culture collection centre or the testing institution shall issue a written certificate of examination to the applicant. Where the propagating materials are found unacceptable upon examination, the culture collection centre or the testing institution shall notify the applicant to furnish again the propagating materials and to take back the materials that are unacceptable within one month from the date of receipt of the notification. Where the applicant fails to take back the materials that are unacceptable before the expiration of the time limit, the culture collection centre or the testing institution shall destroy the said materials.

 

Where the applicant fails to furnish the propagating materials in accordance with the relevant provisions, the application shall be deemed to have been withdrawn.

 

Article 32 The culture collection centre and the testing institution shall have the responsibility to keep confidential the propagating materials furnished by the applicant, and shall prevent the said materials from loss, theft or other accidents. No one is allowed to replace the propagating materials that are found acceptable upon examination. In the case of loss, theft or replacement of the propagating materials, the persons concerned shall be prosecuted for their liability in accordance with the law.

 

CHAPTER V

Examination and Approval of Variety Right

 

Article 33 In the procedures of preliminary examination, substantive examination, re-examination and invalidation, anyone who carries out examination or re-examination under any of the following circumstances should withdraw on his/her own initiative. The party concerned or any other interested person may challenge his presence :

 

(i)　　　　　　　　 where he/she is a close relative of the party concerned or of his/her agent;

 

(ii)　　　　　　　 where he/she has a direct interest in the application for or of the variety right; and

 

(iii)　　　　　　 where he/she has such other kinds of relations with the party concerned or the agent that might affect impartial examination and handling.

 

The withdrawal of a person carrying out examination shall be decided upon by the Office for Protection of Varieties, and the withdrawal of a person carrying out re-examination shall be decided upon by the Director General of the Re-examination Board for New Varieties of Plants.

 

Article 34 Where an application for variety right involves two or more new varieties, the Office for Protection of Varieties shall request the applicant to divide the application. Where the applicant fails to divide and amend the application or make any response within the specified time limit, the application shall be deemed to have been withdrawn.

 

The divisional application filed in accordance with the requirements of the Office for Protection of Varieties by the applicant shall be entitled to the filing date; if priority right is claimed, the priority date of the initial application, provided that the divisional application does not go beyond the scope of disclosure contained in the initial application.

　

A divisional application shall go through all the formalities in accordance with the provisions of the Regulations and these Rules.

 

The filing number and the filing date of the initial application shall be indicated in the request of the divisional application. Where priority right is claimed for the initial application, a copy of the priority documentof the initial application shall be submitted.

 

Article 35 The preliminary examination of an application for variety right conducted by the Office for Protection of Varieties shall examine the following:

 

(i)　　　　　　　　 whether it confirms to the provisions of Article 27 of the Regulations; and

 

(ii)　　　　　　　 whether the similar variety or varieties selected are appropriate, and whether the source of the parents of the variety in respect of which an application is filed for variety right and the other propagating materials are open to the public.

 

The Office for Protection of Varieties shall notify the applicant of the result of the preliminary examination. Where there is any doubt, the Office for Protection of Varieties may request the applicant to make observations or amendments within a prescribed time limit. Where the applicant does not make a response within such time limit, the application shall be deemed to have been withdrawn. Where the Office for Protection of Varieties finds it still not in conformity with the relevant provisions after the applicant making observations or amendments, the Office for Protection of Varieties shall refuse the application.

 

Article 36 Except for the application document for variety right, any document related to the application documents filed with the Office for Protection of Varieties that falls under any of the following shall be deemed not to have been filed:

 

(i)　　　　　　　　 where the prescribed format is not used or the requirements for the indications are not met; and

(ii)　　　　　　　 where the supporting documents are not submitted as prescribed.

 

Where the document is submitted by the party concerned in person, the staff who receives the document shall point out the defects in the document directly and return the document immediately. Where the document is submitted by way of mail, the documents shall be returned to the party concerned by the Office for Protection of Varieties together with the decision of examination of the Office for Protection of Varieties concerning that the document being deemed not to have been filed. Where the address of any document is not clear, the document shall be served by making an announcement .

 

Article 37 During the period beginning from the date on which an application for variety right is filed and  up to the date of grant of variety right, anyone may raise opposition with the Office for Protection of Varieties to any application for variety right which is not in conformity with Article 8, Rules 13 to 18 of the Regulations and Article 4 of these Rules, provide relevant certifying documents and state the reasons thereof. In the absence of such certifying documents, the said opposition shall be refused by the Office for Protection of Varieties.

 

Article 38 Without the approval of the Office for Protection of Varieties, any applicant shall not alter the following contents in the application documents before the grant of variety right:

 

(i)　　　　　　　　 the denomination of the variety in respect of which an application for variety right is filed, the denomination and source of the parents of the variety in respect of which an application is filed or other propagating materials as well as the breeding method of the variety in respect of which an application is filed;

 

(ii)　　　　　　　 the date when the variety in respect of which an application for variety right is filed was first put on sale; and

 

(iii)　　　　　　 the description on the distinctness, uniformity and stability of the variety in respect of which an application for variety right is filed.

 

The amendments to the application documents for variety right shall be in the form of replacement sheet in a prescribed format, except for the alteration, insertion or deletion of a few words.

 

Article 39 The Office for Protection of Varieties shall be responsible for conducting examination as to substance for an application for variety right, and shall notify the applicant the result of its examination. The Office for Protection of Varieties may, according to the needs of the examination, invite the applicant to make observations or amendments within the specified time limit. If the applicant fails to make any response within the specified time limit, the application shall be deemed to have been withdrawn.

 

Article 40 In accordance with the provisions of the Regulations and these Rules, the circumstances where an application for variety right shall be rejected after substantive examination are as follows:

 

(i)　　　　　　　　 where any of the provisions as provided for in Article 8 and Rules 13 to 17 of the Regulations are not complied with;

 

(ii)　　　　　　　 where it falls under Article 4 of these Rules;

 

(iii)　　　　　　 where  the denomination is not in compliance with the provisions, and the applicant fails to make amendments as required by the Office for Protection of Varieties; and

 

(iv)　　　　　　  where after the applicant has made his or its observations or corrections, the Office for Protection of Varieties still finds that the application not in conformity with the provisions.

 

 

Article 41 After the Office for Protection of Varieties issues the notification to go through the formalities for the grant of the variety right, the applicant shall go through the relevant formalities within two months from the date of receiving such notification and pay the annual fee for the first year. If the applicant completes the formalities within the said time limit, the Ministry of Agriculture shall grant the variety right, issue a certificate for such right, and announce it. The variety right shall  take effect as of the date of the announcement.

 

If the applicant does not go through the required formalities within the time limit, he or it shall be deemed to have abandoned his or its right to obtain the variety right.

 

Article 42 The Re-Examination Board for New Varieties of Plants of the Ministry of Agriculture shall be responsible for hearing such cases as re-examination of the decision to reject an applications for variety right, announcement of invalidation of variety right, and re-denomination of a variety in respect of which variety right is granted. Specific provisions shall be formulated by the Ministry of Agriculture separately.

 

CHAPTER VI

Filing or Service of Documents and Time Limit

 

Article 43 All the documents submitted under the Regulations and these Rules shall be filed in Chinese, and the standard scientific and technical terms as well as other standardized terms shall be used if there is a prescribed one set forth by the state. Where no generally accepted translation in Chinese can be found for names of foreigners and foreign places or for scientific and technical terms, the one in the original language shall be also indicated.

 

Where any certificate and certifying documents submitted under the Regulations and these Rules is in a foreign language, a translation in Chinese shall be submitted. Where the translation is not submitted, the certifying documents shall be deemed not to have been submitted.

 

Article 44 All documents submitted by a party concerned to the Office for Protection of Varieties shall be typed or printed. All the characters shall be in black ink, neat and clear. The written language of the application shall run from left to right, and only one side of each sheet shall be used.

 

Article 45 Any document filed with and any formality gone through by a party concerned shall be signed or sealed by the applicant, the variety right holder, any other interested person or his or its representative. Where any agency is appointed, the said documents shall be sealed by such agency. Where a change in the name of the variety breeder, the name or title, nationality and address of the applicant for variety right or the variety right holder, or the title of the agency and the name of the agent is requested, a request for a change in the bibliographic data shall be made to the Office for Protection of Varieties, together with the relevant certifying documents for such change.

 

Article 46 Any material submitted by the interested person may be made by personal delivery or by mail. Where the material is sent by mail, it shall be in the form of registered letter, and not in that of parcel. Only materials relating to the same application shall be included in one letter. For the materials that are sent by mail, the date of mailing indicated by the postmark shall be the date of filing. Where the date of mailing indicated by the postmark on the envelope is illegible, the date on which the Office for Protection of Varieties receives the material shall be the date of filing, except where the date of mailing is proved otherwise by the party concerned.

 

Any document of the Office for Protection of Varieties may be served to the parties concerned by mail, by personal delivery or by making an announcement. Where any party concerned appoints an agency, the document shall be sent to the agency; where no such agency is appointed, the document shall be sent to the address of the recipient, the recipient or the person first named or its or his representative specified in the request. Where the party concerned refuses to accept the document, the document shall be deemed to have been served.

 

Where any document is sent by mail by the Office for Protection of Varieties, the 16th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document.

 

Where any document should be delivered personally in accordance with the relevant provisions, the date of delivery is the date on which the party concerned receives the document. Where the address of any document is not clear and it cannot be sent by mail, the document may be served by making an announcement. At the expiration of two months from the date of the announcement, the document shall be deemed to have been served.

 

Article 47 The first day of any time prescribed in the Regulations and these Rules shall not be counted in the time limit. Where the time limit is counted by year or by month, it shall expire on the corresponding date of the last month.

 

If there is no corresponding day in that month, the time limit shall expire on the last day of that month. If a time limit expires on an official holiday, the time limit shall expire on the first working day following that official holiday.

 

Article 48 Where a time limit prescribed by the Regulations and these Rules or specified by the Office for Protection of Varieties is not observed by a party concerned because of force majeure, resulting in loss of his or its variety right, he or it may, within two months from the date on which the impediment is removed, and within two years immediately following the expiration of that time limit at the latest, state the reasons, accompanied by the relevant supporting documents, and request the Office for Protection of Varieties to restore his or its right.

 

Where a time limit prescribed by the Regulations and these Rules or specified by the Office for Protection of Varieties is not observed by a party concerned because of any justified reason, resulting in loss of his or its variety right, he or it may, within two months from the date of receipt of the notification, state the reasons and request the Office for Protection of Varieties to restore his or its right.

 

Where the party concerned makes a request for an extension of a time limit specified by the Office for Protection of Varieties, he or it shall, before the time limit expires, state the reasons to the Office for Protection of Varieties and go through the relevant formalities.

 

The provisions of paragraph one and two of this Article shall not be applicable to the time limit referred to in Article 14, Article 23, paragraph two and three of Article 32, Article 34 and paragraph two of Article 37 of the Regulations.

 

Article 49 The date of filing referred to in the Regulations, except for those referred to in Article 22 of the Regulations, means the priority date where priority is claimed .

 

CHAPTER VII

Fees and Gazette

 

Article 50 Where any applicant files an application for variety right and goes through the other formalities, it or he shall pay to the Ministry of Agriculture the application fee, the examination fee and the annual fee as prescribed in accordance with the relevant provisions of the state.

 

Article 51 The fees prescribed by the Regulations and these Rules may be paid directly or by way of post or postal remittance.

 

Where any fee is paid by way of post or postal remittance, it or he shall indicate on the money order the denomination of the variety and shall send to the Office for Protection of Varieties by facsimile or by post the copy of the receipt of the remittance, and the number of the application or that of the variety right, the name or title of the applicant or the variety right holder and the name of the fees paid shall be indicated.

 

Where any fee is paid by way of post or postal remittance, the date on which the fee is paid shall be the date of payment.

 

Article 52 In accordance with Article 24 of the Regulations, the applicant may pay the application fee at the same time when the application for variety right is filed, or within one month from the filing date at the latest. If the fee is not paid or not paid in full within the time limit, the application shall be deemed to have been withdrawn.

 

Article 53 Where after the preliminary examination, the application for variety right is found to be in compliance with the provisions, the applicant shall pay the examination fee within the prescribed time limit in accordance with the notification of the Office for Protection of Varieties. If the fee is not paid or not paid in full within the time limit, the application shall be deemed to have been withdrawn.

 

Article 54 The applicant shall, before receiving the certificate for variety right, pay the annual fee of the first year. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.

 

Article 55 Where the annual fee of the variety right after the year in which the variety right is granted is not paid or not paid in full in due time by the variety right holder, the Office for Protection of Varieties shall notify the holder to pay the fees or to make up the insufficiency within six months from the expiration of the time limit within which the annual fee is due to be paid. Where the fees are not paid within the time limit, the variety right shall lapse from the expiration of the time limit within which the annual fee should be paid.

　　　

Article 56 The Office for Protection of Varieties shall publish the Gazette on the Protection of New Varieties of Plants at regular intervals, releasing or announcing information related to variety right.

 

CHAPTER VIII

Supplementary Provisions

 

Article 57 Any of the following is an act of passing a variety off as a protected variety as referred to in Rules 40 and 41 of the Regulations:

 

(i)　　　　　　　　 printingor using a counterfeited certificate for variety right, number of variety right application, number of variety right or the other  marking for variety right application or for variety right;

 

(ii)　　　　　　　 printing or using the number of variety right application or the other marking of variety right application that is rejected, deemed to have been withdrawn or withdrawn;

 

(iii)　　　　　　 printing or using certificate for variety right, number of variety right or other marking of variety right that is terminated or that have been declared invalid;

 

(iv)　　　　　　  producing or putting on sale varieties that fall under items (i), (ii) and (iii) of this Article;

 

(v)　　　　　　　  producing or putting on sale a variety that passes itself off as a variety in respect of which variety right is applied for or as a variety that is granted with variety right; and

 

(vi)　　　　　　  any other acts which are liable to mislead others to take a variety that has not applied for variety right as a variety in respect of which an application for variety right is filed or take a variety that is not granted variety right as one that is granted variety right.

 

 

Article 58 The administrative departments of agriculture shall make a decision within one month on the propagating materials of a plant variety that are sealed up or detained in accordance with the provisions of Article 41 of the Regulations.

 

Article 59 Where parties concerned having disputes over a right to file an application for variety right or over the variety righthave filed a suit with the People’s Court and that the People’s Court has accepted it, a request to suspend the relevant procedures may be made to the Office for Protection of Varieties.

　　　

Where any party requests the suspension of the relevant procedures under the preceding paragraph, it or he shall submit a request to the Office for Protection of Varieties and attach a copy of the document acknowledging the receipt of the suit by the said court.

 

After the judgment rendered by the court enters into force, the parties concerned shall request the Office for Protection of Varieties to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the disputes relating to the right to file an application for variety right or over the ownership of the variety right, and it is necessary to continue the suspension, the parties concerned shall request to extend the suspension within the said time limit. Where no such request for extension is made at the expiration of the said time limit, the Office for Protection of Varieties may resume the procedures on its own initiative.　　

 

Article 60 The files of the application for variety right which is deemed to have been withdrawn, which has been rejected or has been withdrawn shall not be preserved after the expiration of two years from the date on which the application ceases to be valid.

　　　

 

The files of the variety right that has been declared invalid shall not be preserved after the expiration of three years from the date on which the variety right ceases to be valid .

 

Article 61 These Rules shall enter into force as of 1 January 2008. The Implementing Rules for the Regulations of the People’s Republic of China on the Protection of New Varieties of Plants (Agriculture Part) promulgated by the Ministry of Agriculture on 16 June 1999 shall be repealed at the same time.