| Regulation of the People's Republic of China on Protection of New Varieties of Plants | | 中华人民共和国植物新品种保护条例 |
| (Promulgated by Order No. 213 of the State Council of the People's Republic of China on March 20, 1997; revised in accordance with the Decision of the State Council on Amending the Regulation of the People's Republic of China on Protection of New Varieties of Plants on January 31, 2013 for the first time; and revised in accordance with the Decision of the State Council on Amending Some Administrative Regulations on July 29, 2014 for the second time) | | （1997年3月20日中华人民共和国国务院令第213号公布 根据2013年1月31日《国务院关于修改〈中华人民共和国植物新品种保护条例〉的决定》第一次修订 根据2014年7月29日《国务院关于修改部分行政法规的决定》第二次修订） |
| Chapter I General Provisions | | 第一章 总 则 |
| Article 1 These Regulations are formulated for the purposes of protecting rights in new varieties of plants, encouraging the breeding and use of varieties of plants, and promoting the development of agriculture and forestry. | | |
| Article 2 New varieties of plants referred to in these Regulations mean artificially cultivated plant varieties, or ones developed from discovered wild plants, which possess novelty, distinctness, consistency and stability, and which are duly named. | | 第一条 为了保护植物新品种权，鼓励培育和使用植物新品种，促进农业、林业的发展，制定本条例。 |
| Article 3 The administrative departments of agriculture and forestry of the State Council (both hereinafter referred to as the examining and approving organs) are jointly responsible, according to the division of their functions and duties, for the receipt and examination of applications for rights in new varieties of plants, and for granting rights in new varieties of plants (hereinafter referred to as variety rights) for those new varieties of plants that conform to the provisions of these Regulations. | | |
| Article 4 The people's governments at or above the county level or other relevant departments shall give awards to units or individuals that have accomplished the breeding of new plant varieties that have a bearing on State or the public interests, and are of great utility value. | | 第二条 本条例所称植物新品种，是指经过人工培育的或者对发现的野生植物加以开发，具备新颖性、特异性、一致性和稳定性并有适当命名的植物品种。 |
| Article 5 The production, market and popularization of a new plant variety for which a variety right has been granted(hereinafter referred to as the protected variety) are subject to review and approval in accordance with the provisions of relevant State laws and regulations on seeds. | | |
| Chapter II Content and Ownership of Variety Rights | | 第三条 国务院农业、林业行政部门（以下统称审批机关）按照职责分工共同负责植物新品种权申请的受理和审查并对符合本条例规定的植物新品种授予植物新品种权（以下称品种权）。 |
| Article 6 A unit or an individual that has bred a protected variety enjoys exclusive rights in it. No unit or individual, without permission from the owner of the variety rights (hereinafter referred to as the variety rights owner), shall produce or market for commercial purposes the propagation material of the protected variety, or repeatedly use for commercial purposes the propagation material of the protected variety in the production of the propagation material of another variety, unless as otherwise provided in these Regulations. | | |
| Article 7 For employment related breeding that is accomplished in execution of tasks of a unit to which he belongs, or by primarily using material resources of a unit, the application right for a new plant variety belongs to the unit; for non-employment related breeding, the application right of a new variety of plant belongs to the individual who has accomplished the breeding. After the application is approved, the variety rights shall belong to the applicant. | | 第四条 完成关系国家利益或者公共利益并有重大应用价值的植物新品种育种的单位或者个人，由县级以上人民政府或者有关部门给予奖励。 |
| For a commissioned breeding or jointly-conducted breeding, the ownership of variety rights shall be agreed upon by the parties in a contract; in the absence of a contractual agreement thereon, the variety shall rights shall belong to the units or individuals commissioned to accomplish or jointly accomplishing the 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 on the same new plant variety, the variety rights shall be granted to the person who applied first; if applying simultaneously, the variety rights shall be granted to the person who first bred the new plant variety. | | 第五条 生产、销售和推广被授予品种权的植物新品种（以下称授权品种），应当按照国家有关种子的法律、法规的规定审定。 |
| Article 9 The application right for a new plant variety and the variety rights may be assigned according to law. | | 第二章 品种权的内容和归属 |
| If a Chinese unit or individual is to assign to a foreigner the application right or the variety rights with respect to a new plant variety bred by it or him in China, it shall be approved by the examining and approving organs. | | |
| If a State-owned unit is to assign the application right or the variety rights at home, it shall, in accordance with the relevant provisions of the State, be submitted to the relevant competent administrative departments for approval. | | 第六条 完成育种的单位或者个人对其授权品种，享有排他的独占权。任何单位或者个人未经品种权所有人（以下称品种权人）许可，不得为商业目的生产或者销售该授权品种的繁殖材料，不得为商业目的将该授权品种的繁殖材料重复使用于生产另一品种的繁殖材料；但是，本条例另有规定的除外。 |
| If the application right or variety right is assigned, the parties shall conclude a written contract, and register it with the examining and approving organs which shall make a public announcement. | | |
| Article 10 Use of a protested variety under the following circumstances is allowed with no need for permission from or remuneration to the variety rights owner. However, the other rights enjoyed by the variety rights owner under these Regulations shall by no means be prejudiced: | | 第七条 执行本单位的任务或者主要是利用本单位的物质条件所完成的职务育种，植物新品种的申请权属于该单位；非职务育种，植物新品种的申请权属于完成育种的个人。申请被批准后，品种权属于申请人。 |
| (1) use of the protected variety for breeding and other scientific research activities; | | 委托育种或者合作育种，品种权的归属由当事人在合同中约定；没有合同约定的，品种权属于受委托完成或者共同完成育种的单位或者个人。 |
| (2) self-use or self-propagation by farmers of propagation materials of the protected variety. | | |
| Article 11 Where the national interest or public interest so requires, the examining and approving organs may make a decision on a compulsory license to exploit new plant varieties, which shall be registered and publicly announced. | | 第八条 一个植物新品种只能授予一项品种权。两个以上的申请人分别就同一个植物新品种申请品种权的，品种权授予最先申请的人；同时申请的，品种权授予最先完成该植物新品种育种的人。 |
| Any unit or individual that is granted a compulsory license for exploitation shall pay the variety rights owner a reasonable exploitation fee and the amount thereof shall be decided through consultation of both parties. Where the parties fail to reach an agreement, the examining and approving organs shall make a ruling. | | |
| A variety rights owner not satisfied with the decision on a compulsory license nor with the ruling regarding the exploitation fee, may, within three months from the date of receiving notification, file a suit with a people's court. | | 第九条 植物新品种的申请权和品种权可以依法转让。 |
| Article 12 Whether or not the period of the protection of a protected variety has expired, its registered denomination must be used when marketing the said protected variety. | | 中国的单位或者个人就其在国内培育的植物新品种向外国人转让申请权或者品种权的，应当经审批机关批准。 |
| Chapter III Conditions for Granting Variety Rights | | 国有单位在国内转让申请权或者品种权的，应当按照国家有关规定报经有关行政主管部门批准。 |
| Article 13 In applying for a variety right a new plant variety shall belong to a botanical genus and species in the national catalogue of protected plant varieties. The catalogue of protected plant varieties shall be determined and announced by the examining and approving organs. | | 转让申请权或者品种权的，当事人应当订立书面合同，并向审批机关登记，由审批机关予以公告。 |
| Article 14 A plant new variety to be granted variety rights shall possess the characteristic of novelty. Novelty means that the propagation material of the new plant variety for which variety protection is applied have not been marketed prior to the application date, or the propagation material of the variety have not been marketed with the agreement of the breeder within the territory of China for longer than one year; the propagation material of vines, forest trees, fruit trees and ornamental trees shall not have been marketed outside the territory of China for six years, or the propagation material of other plant varieties for longer than four years. | | |
| Article 15 A new plant variety to be granted variety rights shall possess the characteristic of distinctness. Distinctness means that the new plant variety for which variety protection is applied shall be clearly distinguishable from any other plant variety the existence of which is a matter of common knowledge at the time the application is filed. | | 第十条 在下列情况下使用授权品种的，可以不经品种权人许可，不向其支付使用费，但是不得侵犯品种权人依照本条例享有的其他权利： |
| Article 16 A new plant variety to be granted variety rights shall possess the characteristic of consistency. Consistency means that the new plant variety for which variety protection is applied shall be consistent, except for variation that may be expected, in its relevant characteristics or identity after propagation. | | （一）利用授权品种进行育种及其他科研活动； |
| Article 17 A new plant variety to be granted variety rights shall possess the characteristic of stability. Stability means that the new plant variety for which variety protection is applied shall remain true to its relevant characteristics or identity after repeated propagation or at the end of a particular cycle of propagation. | | （二）农民自繁自用授权品种的繁殖材料。 |
| Article 18 A new plant variety granted variety rights shall possess a proper denomination, which shall be distinguishable from that of any other already known variety of the same or closely related botanical genus or species. The denomination, after being registered, shall be the generic designation of the new variety of plant in question. | | |
| The following denominations shall not be used for designating a variety: | | 第十一条 为了国家利益或者公共利益，审批机关可以作出实施植物新品种强制许可的决定，并予以登记和公告。 |
| (1) consisting solely of figures; | | 取得实施强制许可的单位或者个人应当付给品种权人合理的使用费，其数额由双方商定；双方不能达成协议的，由审批机关裁决。 |
| (2) violating social morals; | | 品种权人对强制许可决定或者强制许可使用费的裁决不服的，可以自收到通知之日起3个月内向人民法院提起诉讼。 |
| (3) liable to mislead the characteristics or identity of the new plant variety, or the identity of the breeder. | | |
| Chapter IV Application for Variety Rights and Receipt Thereof | | 第十二条 不论授权品种的保护期是否届满，销售该授权品种应当使用其注册登记的名称。 |
| Article 19 A Chinese unit or individual that intends to apply for variety rights may file an application with the examining and approving organs directly or by authorizing an agency. | | 第三章 授予品种权的条件 |
| Where the new plant variety for which a variety right is applied by a Chinese unit or its individual involves State security or major interests and therefore needs to be kept confidential, it shall be handled in accordance with the relevant provisions of the State. | | |
| Article 20 If a foreigner, foreign enterprise or other foreign organization files an application for a variety rights in China, it shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and the People's Republic of China, or any international treaty to which both countries have acceded, or handled according to these Regulations on the basis of the principle of reciprocity. | | 第十三条 申请品种权的植物新品种应当属于国家植物品种保护名录中列举的植物的属或者种。植物品种保护名录由审批机关确定和公布。 |
| Article 21 When applying for a variety right, a written request and a specification conforming to the prescribed format and requirements as well as a photograph of the variety shall be submitted to the examining and approving organs. | | |
| The application documents shall be written in Chinese. | | 第十四条 授予品种权的植物新品种应当具备新颖性。新颖性，是指申请品种权的植物新品种在申请日前该品种繁殖材料未被销售，或者经育种者许可，在中国境内销售该品种繁殖材料未超过1年；在中国境外销售藤本植物、林木、果树和观赏树木品种繁殖材料未超过6年，销售其他植物品种繁殖材料未超过4年。 |
| Article 22 The date on which the examining and approving organs receive the variety rights application documents shall be the filing date of the application. Where the application documents are sent by mail, the postmark date shall be the filing date of the application. | | |
| Article 23 An applicant who, within 12 months from the date on which an application for a variety right was first filed in a foreign country, files an application for a variety right in China for the same new plant variety, may, in accordance with any agreement concluded between the said foreign country and the People's Republic of China or any international treaty to which both countries have acceded, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. | | 第十五条 授予品种权的植物新品种应当具备特异性。特异性，是指申请品种权的植物新品种应当明显区别于在递交申请以前已知的植物品种。 |
| Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the variety right application documents that were first filed, and confirmed by the original receiving authority; if the applicant fails to make the written declaration or fails to submit a copy of the variety right application documents in accordance the provisions of these Regulations, the claim to the right of priority shall be deemed not to have been made. | | |
| Article 24 Where an application for a variety right conforms to the provisions of Article 21 of these Regulations, the examining and approving organs shall accept it, establish the date of filing, assign a filing number and notify the applicant within one month of the date of receiving the application to pay the application fee. | | 第十六条 授予品种权的植物新品种应当具备一致性。一致性，是指申请品种权的植物新品种经过繁殖，除可以预见的变异外，其相关的特征或者特性一致。 |
| Where an application for a variety right does not, or after being revised still does not, conform to the provisions of Article 21 of these Regulations, the examining and approving organs shall not accept it and shall notify the applicant accordingly. | | |
Article 25 An applicant may amend or withdraw the application for a variety right at any time before the variety right is granted.
．．．．．． | | 第十七条 授予品种权的植物新品种应当具备稳定性。稳定性，是指申请品种权的植物新品种经过反复繁殖后或者在特定繁殖周期结束时，其相关的特征或者特性保持不变。
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