CHANG TSI
Insights
Developing a new plant variety often requires years of sustained investment in research and breeding. China has established a two-track intellectual property framework to protect such innovations: the Plant Variety Protection (PVP) system under the Plant New Variety Protection Regulations, and the patent system under the Patent Law of the PRC. The two regimes are complementary rather than overlapping, and together provide comprehensive protection across the plant breeding value chain.
1. Legal Basis and Recent Developments
The Plant New Variety Protection Regulations were first promulgated in 1997 and have since been revised three times. The most recent revision came into force on 1 June 2025 (State Council Order No. 807) and represents the most substantive overhaul since the Regulations were enacted, significantly raising the level of protection in line with international standards.
2. What Qualifies as a Plant New Variety?
A plant new variety is a cultivated plant variety (or a variety developed from a discovered wild plant) that has been given an appropriate denomination and satisfies all four of the following criteria:
a. Novelty: the variety has not been sold or promoted beyond the prescribed period prior to the filing date;
b. Distinctness: the variety is clearly distinguishable from any commonly known variety;
c. Uniformity: the variety is sufficiently uniform in its relevant characteristics, subject to expected variation;
d. Stability: the variety remains true to its description after repeated propagation.
3. Competent Authorities
a. Agricultural plants (rice, maize, wheat, soybean, vegetables, etc.): Ministry of Agriculture and Rural Affairs (MARA);
b. Forestry plants (trees, ornamentals, etc.): National Forestry and Grassland Administration (NFGA).
Under the 2025 Regulations, the preliminary examination period has been shortened from six months to three months (extendable by a further three months in complex cases), improving processing efficiency.
4. Term of Protection
a. Woody and vine plants (e.g., fruit trees, roses): extended from 20 to 25 years;
b. All other plants (e.g., field crops, vegetables): extended from 15 to 20 years.
5. Scope of the Variety Right
The variety right confers an exclusive right on the rights holder. The 2025 Regulations significantly expanded the scope of protection:
a. Protected subject matter now extends from propagating material to harvested material (including fruits and grain);
b. Protected acts now cover processing for propagation, offering for sale, import, export, and storage, in addition to production, propagation, and sale;
c. The variety right extends to essentially derived varieties (EDVs) and varieties that are not clearly distinguishable from the authorised variety.
Illustrative case: In a 2024 Supreme People's Court model case, the rights holder of the rose variety "Tianshan Xiangyun" (authorised variety, retail price RMB 320-360 per plant) brought an infringement action against a nursery that had, since 2014, been propagating the variety without authorisation by taking cuttings from a public park and selling the resulting plants at RMB 120-160 per plant. The Supreme People's Court upheld the infringement finding on appeal and ordered the nursery to cease infringing acts and pay damages. The case confirms that unauthorised propagation and commercialisation of an authorised variety constitutes infringement regardless of the source of the original material, and that rights holders may claim damages for the entire period of infringement.
6. Farmer's Privilege
The Regulations retain a farmer's privilege: farmers may save and reuse harvested seed of an authorised variety for their own subsequent planting without the rights holder's authorisation. This exemption does not apply to repeated commercial use of an authorised variety for production or propagation purposes.
1. Are Plant Varieties Patentable in China?
Article 25(1)(iv) of the Patent Law of the PRC expressly provides that animal and plant varieties are not patentable. Accordingly, a new plant variety, however novel or commercially significant, cannot itself be the subject of patent protection.
However, Article 25(2) provides that production methods for the products listed in Article 25(1)(iv) may be granted patent protection. In practice, this means that the method by which a variety is produced — rather than the variety itself — may qualify for a patent, provided it meets the statutory requirements.
An important qualification applies: the production method must not be "essentially biological" in nature. A method is essentially biological where the outcome is determined principally by natural biological processes rather than by a meaningful technical intervention. Conventional cross-breeding and selection, for example, would generally be considered essentially biological and therefore excluded. Methods involving substantial human-directed technical input — such as genetic engineering, marker-assisted selection, or cell fusion techniques — are more likely to qualify.
2. Patentable Subject Matter in the Plant Sector
a. Breeding methods: marker-assisted selection, mutagenesis breeding, and similar techniques;
b. Genetic engineering: specific protocols for gene transformation, genome editing (e.g., CRISPR-Cas9 applications);
c. Tissue culture methods: virus-free rapid propagation, somatic cell cloning;
d. Detection and testing methods: molecular methods for identifying specific plant traits;
e. Agrochemical formulations and application methods associated with specific varieties.
3. Reach-Through Protection
Under Article 11 of the Patent Law, a process patent extends to products directly obtained by that process. Consequently, where a patented breeding method is used to produce a plant variety, that variety also falls within the scope of patent protection. This provides a degree of indirect protection for the resulting variety and partially compensates for the exclusion of varieties from direct patent protection.
In practice, plant breeders and agribusinesses typically deploy both regimes in parallel to build a layered IP portfolio:
a. A variety right secures direct protection over the authorised variety and its propagating and harvested material;
b. A patent over the underlying breeding method protects the technical process and may extend to varieties produced by that method, preventing competitors from "designing around" the variety right;
c. Trade secret protection may additionally be used to safeguard proprietary data, know-how, and germplasm not captured by the above.
The 2025 Regulations also introduce an essentially derived variety (EDV) system: a variety that is predominantly derived from an authorised variety but does not clearly distinguish itself requires the original rights holder's authorisation for commercial exploitation. This closes a significant loophole that had previously allowed minor modifications to circumvent variety rights.
Rights holders whose plant variety rights or plant-related patents are infringed may pursue one or more of the following remedies:
1. Administrative Enforcement: Complaints may be filed with MARA, NFGA, or market regulation authorities. The 2025 Regulations substantially increased administrative penalties: in serious cases, fines may range from five to ten times the value of the infringing goods (previously one to five times).
2. Civil Litigation: Rights holders may bring a civil infringement action before the courts, seeking injunctive relief, damages (including reasonable enforcement costs), and/or an order to cease infringing acts. Where infringement is wilful and the circumstances are serious, courts may award punitive damages of up to five times the established loss.
3. Criminal Prosecution: Counterfeiting an authorised plant variety constitutes a criminal offence under the Criminal Law where the circumstances are serious. Liable individuals may be subject to fines and/or imprisonment.
Plant variety protection (PVP) and patent protection serve distinct but complementary functions: PVP protects the variety itself, while patents protect the methods and processes used to develop it. Together, they form a coherent and increasingly robust IP framework for the plant sector in China. The 2025 overhaul of the Plant New Variety Protection Regulations — extending protection terms, broadening the scope of protected acts, introducing EDV provisions, and increasing enforcement penalties — marks a significant step towards alignment with leading international standards.
For plant breeders, seed companies, and agribusinesses operating in or entering the Chinese market, a coordinated IP strategy that leverages both regimes is essential to maximising the value and security of breeding innovations.
