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Entry and Application of the New Plant Variety in China
Authored by Crystal DOU and He LIU
The development of plant technology has greatly enriched our dining table and decorated our lives. The new breed of fruits in the supermarket with rich flavor and attractive color, and the fragrant and beautiful rose and lilies in the flower shop are the reflection of modern plant technology.
The right of new plant variety is a type of industrial property rights, which refers to the exclusive right to utilize the new plant variety that is granted to the entity or individual who has completed the breeding.
In recent years, the number of new plant variety applications and the granted in China has increased rapidly. As of the end of 2019, the total number of applications reached nearly 34,000, and that of the granted was close to 14,000; the number of annual applications in China ranked first in the world for three consecutive years. For foreign agricultural companies or research institutions, obtaining new plant varieties rights in China has great commercial value. Unlike other types of intellectual property rights, new plant varieties may affect the country's agricultural and environmental safety, so the application process is more complicated and stricter.
Recently our attorneys who are qualified to practice as agents for new plant variety applications often receive the inquiries from foreign plant varieties breeding institutions. Hereinafter the author briefly introduces how foreign new plant variety enters China and how to obtain the protection.
I. Entry procedures of propagating material
1. Import License Procedures
To apply for protection of the new plant variety, it is necessary to deliver the relevant propagation materials to China. According to the relevant regulations of the Ministry of Agriculture of China, the first step is to apply to the agricultural regulation authority of the place of entry for the approval of the import. The Application Form for Import, the certificate of the use right of the business premises, purchase contract, agency agreement and other materials are requested.
Based on the author’s experience, there are slight differences in the time and method for the approval of new plant variety by agricultural administrations in different places of entry. It is recommended to consult attorneys before entering China so as to choose the most suitable entry place for the plant variety (herb or woody)
2. Quarantine Formalities
After obtaining the license of the import, the next step is to go through the quarantine formalities. The acceptance authority is the Government Service Hall of the Ministry of Agriculture and Rural Affairs.
After receiving the application, the authority will conduct a formality examination, and the application will be accepted if the required materials are submitted in full. After being accepted, the materials will be reviewed, and expert review will be organized to conduct risk analysis if necessary. This approval procedure generally takes 20 days. If expert review is adopted, the review time would not exceed 2 months.
3. Customs Entry and Customs Clearance Procedures
After going through the quarantine procedures, the delivery of propagation materials can be arranged. When the propagation material arrives at the port, it is necessary to apply for customs clearance, submit the aforementioned import license and inspection and quarantine license and other related materials, accept the inspection, and pay customs duties.
4. Planting in isolation
Planting in isolation are compulsory for the propagation materials. The applicant needs to contact the isolation planting base in advance for the isolated planting. The Ministry of Agriculture imposes certain restrictions on the number of propagation materials for the first entry. Isolated planting requires the completion of a plant growth cycle. After a growth cycle is over, the plant quarantine department will issue a phytosanitary report. It is recommended that the applicant communicate with the attorney in advance to determine the isolated planting base.
II. Application Process for New Plant Variety
For foreign applicants, it is necessary to entrust an agency to file an application for new plant variety to the authority.
After the isolated planting is completed, the application phase for new plant variety can begin. Generally speaking it includes three main phases: application-examination-allowance.
At the application phase, the first step is to fill in the application form online and submit relevant materials to the Office of Protection of New Varieties of Plants, State Forestry Administration of China(hereinafter referred as “CNPVP”) by mail or directly. Relevant materials include Letter of Request, description and photos. Upon the receipt, the CNPVP will first conduct a preliminary examination. If the requirements are met, the CNPVP will issue a Notification of Passing the Preliminary Examination, allocate an application number and make the publication. For those applications with obvious defects in the application documents, the examiner will issue an Office Action (OA), indicating the defects and specifying the time limit for reply. The applicant shall state his opinions or make corrections within the specified time limit; if the applicant fails to respond timely, the application shall be deemed to withdrawn. If the applicant’s response to OA still fails to meet the requirements, his application shall be rejected.
After passing the preliminary examination, the examiner will issue an electronic notification of acceptance. Applicants need to send the propagating materials to the preservation center within 3 months. The examiner will conduct a substantive examination on the propagating material, and review its distinctness, uniformity and stability through centralized testing, on-site inspection, and written review (i.e. DUS test). Failure in the DUS test will lead to the rejection. After passing the DUS test, the CNPVP will send the materials to their superior and publish in the "New Agricultural Plant Variety Protection Bulletin". After the completion of the publication process, the CNPVP will issue the Notification to Grant, have it publicized, print and issue a certificate.
The noteworthy point is that the application for new plant variety takes a long time. For foreign applicants, it often takes several years to obtain the certificate. Moreover, because different types of agricultural plant species have different regulations and different planting times (seasons), applicants need to plan in advance so that they can get allowance in the most efficient way. A simple application flow chart is attached below for readers' reference.
