On April 30, China's State Council released the revised Regulations on the Protection of New Plant Varieties (the ‘2025 Regulations’), which will come into effect on June 1, 2025.

The revision not only implements the relevant provisions of the previously revised Seed Law, but also further improves the systems related to the protection of new plant varieties. Significant adjustments have been made in terms of the scope of protection, validity of variety rights, authorization requirements, extension of the protection periods, and penalties for infringements. To facilitate a deeper understanding of the practical implications of these revisions, this article provides an analysis of five key revisions with reference to representative cases and provides actionable suggestions.

I. Enhancing Protection: Implementing the Previously Revised Seed Law Circumstances for Losing Novelty, Expanding the Scope of Variety Right Protection, and Refining the Protection Scope of Essentially Derived Varieties

Revisions Overview

The pre-existing version of the Regulations on the Protection of New Plant Varieties (2014) has been in effect for over a decade,  and no longer aligns with the enhanced protection of new plant variety rights introduced in the 2015 and 2021 revisions of the Seed Law. Thus the 2025 Regulations synchronize and refine the circumstances for novelty loss, protection scope, protection stages, and essentially derived varieties (EDVs) with the current Seed Law. Specifically, the revisions include:

• Implementing the 2015 revisions of the Seed Law by supplementing two categories of circumstances for loss of novelty, namely: the variety has been determined by provincial competent authorities to have undergone factual diffusion based on sowing area, or it has been approved or registered as crop variety for more than two years without applying for plant variety rights. Additionally, it is expressly stipulated that the sales and promotion activities of ‘harvested materials’ before the application date shall be taken into consideration for novelty determination, applying the same time standard as that for propagating materials.
• Extension of protection scope and stages to align with the Seed Law (2021) - not only the propagation materials (such as seeds and seedlings),’harvested materials’ (such as fruits, flowers, and timber) will also be protected. The protected stages will further expand to the processing for propagation, offering for sale, import, export, and storage, compared to only production, propagation, and sales protected previously.
• Refining the protection provisions for EDVs based on the Seed Law (2021) by clarifying the criteria for determining EDVs to prevent ‘copycat breeding’ practices. Furthermore, the revision states that China will implement the EDV system in phases, specify the scope of implementation through a catalog, and establish an expert database to provide professional support for the EDV system.

Interpretation of Key Revisions

Regarding novelty, the two newly added conditions for loss of novelty in the revision are implemented in accordance with the provisions of the Seed Law (2015). Specifically, if an applied variety has been planted on a large scale and is determined by the provincial competent authority to have undergone factual diffusion, or it has been approved or registered crop variety for more than two years but the application for plant variety rights has not been filed, the variety shall lose its novelty due to its prior public disclosure.

• Taking the Administrative Invalidation Case of the ‘FL218’ Corn New Plant Variety^[1] as an example, one of the reasons why the Plant Variety Reexamination Board of the Ministry of Agriculture and Rural Affairs (the MARA) determined that the variety in question maintained the novelty was that the invalidation requester, Hui Company, failed to submit enough evidence proving that the variety in question had been deemed as already factually diffused based on the sowing area by the provincial agricultural or forestry authority, nor did it submit evidence materials showing that the variety had been approved for crop variety for more than 2 years without applying for plant variety rights.
• In addition, based on the Seed Law (2021), the 2025 Regulations further clarify that sales and promotion activities of ‘harvested materials’ before the application date may also lead to loss of novelty. The specific criteria for determination are consistent with those for sales and promotion of propagation materials.

Regarding the scope of variety rights protection, the 2025 Regulations refine and emphasize the Seed Law (2021), providing clearer and more detailed legal grounds for variety right holders to enforce their rights. For instance, the inclusion of ’harvested materials’ under protection marks a significant expansion of enforceability. Prior to this revision, courts could only award damages for infringement involving propagation materials (e.g., seeds, seedlings), even if the dispute concerned harvested products.

The ‘Sanhong Miyou’ Pomelo PVR Civil Infringement Case, decided before the Seed Law (2021) took effect, illustrates the limitations of prior regulations. ^[2] Although the defendant's harvested pomelo fruits were confirmed as infringing, the Supreme People's Court (SPC) dismissed the variety right holder's claim because the applicable Seed Law (2015) did not recognize protection for harvested materials. Under the 2025 Regulations and Seed Law (2021), variety right holders may now prohibit unauthorized use of harvested materials derived from protected propagation materials (e.g., fruits), substantially broadening the scope of enforcement.

Correspondingly, the 2025 Regulations also expand the application of ‘legitimate sources’ defense for variety right infringement to cover the unknowingly processing of infringing harvested materials, with additional types of acts eligible for the defense. ‘Legitimate sources’ defense was firstly introduced in previous judicial interpretations,^[3] under which defendants who unknowingly sell or offer infringing materials and can prove a legitimate source are exempt from compensation liability. However, they must still cease infringement and cover reasonable costs incurred by rights holders to enforce their rights.

In addition, the newly introduced EDV system ensures that the original breeder's rights extend to essentially derived versions of their varieties. Specifically, developers of EDVs must obtain a license from the original breeder before commercializing the EDV through propagation, sales, or other means. Whether a variety constitutes an EDV of an existing one is determined primarily through molecular testing and phenotypic analysis. This revision curbs ‘free-riding’ actions through minor modifications of existing varieties (‘copycat breeding’), reduces legal disputes, and incentivizes genuine innovation.

Practical Suggestions

• After successfully developing a variety, breeding enterprises should rationally plan their commercialization strategies and promptly apply for variety rights protection to prevent the loss of novelty due to public promotion or planting, which may affect the enterprise's related business operations.
• Enterprises should monitor similar products in the different production areas and markets, as well as others' pre-filing for crop variety approvals or registration, to detect infringement in a timely manner and safeguard their rights promptly.
• For variety rights protection, enterprises can enforce rights directly over ‘harvested materials,’ especially the infringing fruits for asexually propagated fruit varieties, which would enhance enforcement efficiency and increase compensation. However, enforcement strategies should also vary based on the infringer's identity and type of infringement, as the primary purpose is halting violations and preventing the spread of infringing materials.
• To adapt to the EDV system, enterprises developing EDVs should secure prior authorization from the original variety rights holder to avoid legal risks. As rights holders, they should vigilantly monitor commercial activities involving EDVs derived from their varieties to prevent unauthorized ‘free-riding’ exploitation.

II. Refining the Denominating, Application Procedures, and Administrative Enforcement of Plant Variety Rights to Fully Align with the Current Seed Law

1. Stricter Conditions for Authorizing Variety Rights: Denominating Compliance and Identity Consistency

Revisions Overview

• Strengthened Management of Variety Denominations: The denominations shall not infringe prior rights (e.g., trademarks, personal names of public figures).
• Unified Denomination Requirement: A single plant variety must use the same denomination across all stages, including applications for new variety protection, crop variety approval, variety registration, sales, and promotion.

Interpretation of Key Revisions

The new provision prohibiting variety denominations that infringe prior rights ensures that plant variety names do not infringe prior rights, such as personal naming rights or registered trademarks. Upon implementation, applications using infringing denominations, such as renowned breeders' names or registered trademarks (e.g. Dao Hua Xiang), will be rejected during examination. Even if initially approved, such denominations may need to be changed later, or the plant variety right risks invalidation.

Practical Suggestions 

• Before applying for a new plant variety, applicants should conduct dual searches for others' prior rights (such as trademarks) and existing variety denominations to avoid conflicts, and shall refrain from using the names of renowned breeders or other individuals as variety denominations.
• Foreign applicants should consider both regulatory requirements and market acceptance in China when selecting variety denominations. A consistent denomination must be used across all stages, including variety applications, crop approvals, registrations, sales, and promotion. This not only facilitates monitoring by plant variety protection authorities, but also enhances public recognition and memorability of the variety.

2. Improving Application and Authorization Procedures: Accelerated Examination with Stricter Integrity Requirements and Optimized Rights Restoration System

Revisions Overview

• The preliminary examination period for variety rights is shortened from 6 months to 3 months.
• The existing rights restoration system for variety rights is incorporated in the 2025 Regulations (e.g., rights may be restored due to force majeure circumstances such as pandemics).
• In line with integrity requirements in relevant laws and regulations, dishonest application conduct involving deception, concealment, or falsification of materials shall be included in enterprise credit records and publicly disclosed.

Interpretation of Key Revisions

The revision shortens the preliminary examination period for variety rights to 3 months, which can accelerate the examination speed of the plant variety rights. Meanwhile, the incorporation and improvement of the rights restoration provisions provide remedies for variety right holders to request restoration of rights for justifiable reasons in exceptional circumstances. These revisions are conducive to variety applications and strategic planning by breeding enterprises (particularly for high-value varieties).

Meanwhile, the revision strictly requires breeding enterprises to adhere to the principle of good faith during the application process and strengthens the regulation of dishonest variety right applications. However, compared with the Regulations (Draft for Comment) ^[4] issued in November 2022, the 2025 Regulations do not retain the proposed clause that ‘dishonest applicants and responsible persons shall be prohibited from applying for variety rights within 3 years,’ reflecting the legislative authority's intention to balance encouragement of variety innovation with regulation of dishonest applications.

Practical Suggestions

• Leverage the shortened examination cycle after the revision to prioritize the portfolio establishment of high-value varieties.
• In case of loss of rights due to delay caused by force majeure or other justifiable reasons, the applicant shall apply to the competent authority for rights restoration within 2 months after the elimination of obstacles and within 2 years from the expiration of the rights period.
• Ensure the authenticity of application materials to avoid being recorded in credit records and publicized by the competent authority, which may damage the enterprise's brand image and industry reputation. Where others pre-file applications for variety rights, registration/approval of the right holder's variety, the variety right holder may, when safeguarding its rights, concurrently allege to the competent authorities that there are issues with the authenticity of the application materials, thereby strengthening its rights protection claims.

3. Extension of the Protection Period for Variety Rights

Revisions Overview

• Extend the protection period of variety rights for woody and vine plant varieties from 20 years to 25 years, and for other plant varieties from 15 years to 20 years.

Interpretation of Key Revisions

The extension of the variety rights protection period aligns with the 1991 Act of the UPOV Convention.^[5] This lays an institutional foundation for China's future accession to the 1991 Act of the UPOV Convention.

Practical Suggestions

The current revisions do not include retroactive clauses for the automatic extension of protection periods for already granted variety rights. In accordance with the legal principle of ‘the law does not operate retroactively’ generally observed in legal amendments, the extended protection periods may only apply to newly granted varieties after the implementation of the revision unless otherwise specified. This is subject to further regulations on transitional issues in subsequent implementing rules, other laws and regulations, judicial interpretations, or official interpretations.

4. Aligning with Law Enforcement Standards of the Seed Law and Strengthening Infringement Penalties: Doubling Fines and Upgrading Law Enforcement Measures

Revisions Overview

• The upper limit of infringement fines is increased from 5 times to 10 times the value of goods, with an additional minimum penalty threshold of RMB 10,000 newly added.
• The authority to impose administrative fines for variety right infringements is adjusted from provincial-level to county-level competent authorities.
• Competent authorities are newly empowered to take administrative enforcement measures, including:
  • Entering production and business premises for on-site inspections;
  • Sampling, testing, or inspecting propagation materials and harvested materials of plant varieties;
  • Sealing illegal premises and seizing infringing propagation materials, tools, and equipment.

Interpretation of Key Revisions

The revision aligns with the Seed Law (2021) by adjusting the upper and lower limits of fines and the authority level for imposing penalties, effectively enhancing the deterrence and efficiency of administrative law enforcement. It provides legal support for variety right holders to leverage administrative forces for protection.

For example, in the Administrative Enforcement Case of the ‘Meixiangzhan No. 2’ Rice Variety Right Infringement^[6], the infringer had been producing and operating ‘Meixiangzhan No. 2’ without a license since 2021, with the involved goods valued at RMB 63,035. The local MARA in Shaoguan city, Guangdong applied the newly revised Seed Law to impose a heavy administrative penalty of RMB 378,210 (6 times the value of the involved goods) on the infringer, effectively cracking down on variety right violations.

Practical Suggestions

Variety right holders should closely monitor market dynamics. Upon discovering infringement clues, they should promptly submit detailed evidence to county-level or higher competent authorities, cooperate with the authorities in on-site inspections, sealing, and seizure operations, and leverage administrative forces to collect evidence and cease infringements efficiently. When variety right holders seek compensation and recover economic losses, they should further initiate civil litigation in court and demand that infringers bear corresponding legal costs for rights protection.

III. Conclusions

The 2025 Regulations expand the scope of variety right protection to harvested materials, establish the EDV system, and extend the protection period of variety rights, achieving ‘full-chain’ protection for breeders' innovative achievements. Meanwhile, new rules such as increasing penalty amounts for infringements and granting competent administrative authorities the power to seal illegal premises strengthen the punitive power and deterrence of administrative law enforcement for variety rights protection.

The 2025 Regulations also introduce significant revisions to the examination procedures and conditions for variety rights. On the one hand, the variety examination process is optimized by shortening the preliminary examination period to improve review efficiency, and a rights restoration system is established to provide reasonable remedies for variety right holders. On the other hand, stricter examination standards will be implemented: denominations that infringing others' prior rights are explicitly prohibited, and two new categories of circumstances for refusing variety rights applications or losing novelty are added respectively.

In light of this, we believe that only by fully understanding the rule changes and proactively laying out risk prevention and rights protection systems can one gain the initiative in competition of new variety and effectively safeguard the value of innovative achievements. Thus, we suggest that variety right holders may: 

1. Strengthen Variety Right Application and Compliance Management

• Timely file applications for variety rights after successful variety development to avoid losing rights due to exceeding the 2-year crop variety approval/registration period or factual diffusion;
• Conduct comprehensive searches for third-party prior rights (e.g., trademarks, names, and prior variety denominations) before filing an application to prevent rejection due to having a non-compliant denomination;
• Ensure the authenticity and completeness of breeding data, trial records, and all application materials to prevent application rejection and credit record inclusion due to data falsification or other acts of bad faith.
• For varieties requiring crop variety approval or registration of non-major crop varieties, complete the approval or registration process in a timely manner before promotion.
• Timely file invalidation applications against bad-faith pre-filing, examination, or registration by others.

2. Timely Adjustment of Enforcement Strategies

• Establish a full chain monitoring system to conduct regular inspections of downstream distributors and end-market fruit products. For asexually propagated varieties (e.g., kiwifruit, apples, grapes, blueberries, etc.), genetic testing of fruit samples can be used to trace and confirm infringement sources;
• For EDVs, focus on monitoring unauthorized commercial cultivation and sales of ‘copycat breeding’ varieties, and promptly take enforcement actions such as administrative complaints or civil litigation.

3. Leverage Administrative Enforcement to Combat Infringements

• When infringements are detected, variety right holders may prioritize submitting infringement evidence (e.g., sales records, on-site photos, appraisal reports) to county-level or higher competent authorities to leverage administrative investigative and enforcement powers allowing for rapid evidence preservation and immediate cessation of infringing activities;
• Depending on the circumstances, consider initiating civil litigation for compensation after administrative enforcements, achieving dual protection through ‘administrative + judicial’ measures. This strategy also facilitates the involvement of administrative authorities in post-litigation civil enforcement procedure, effectively addressing enforcement challenges in such civil judgments, including the destruction of infringing materials and the deactivation of propagating materials.

[1] (2024) Zui Gao Fa Zhi Xing Zhong No. 627 - One the Fifth Batch of Typical Cases on Judicial Protection of Intellectual Property Rights in the Seed Industry Released by the SPC

https://ipc.court.gov.cn/zh-cn/news/view-4069.html

[2] (2019) Zui Gao Fa Zhi Min Zhong No. 14 - One of the IPC the SPC's "Top 100 Cases in Five Years"

https://ipc.court.gov.cn/zh-cn/news/view-2945.html

[3] Article 13 of the Several Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Hearing of Cases Involving Disputes over Infringement upon the Rights of New Plant Varieties (II)

http://gongbao.court.gov.cn/Details/2e725813528aad93b499ab4f5c2ffd.html

[4] http://www.moa.gov.cn/govpublic/nybzzj1/202211/W020221122417443629225.pdf

[5] 1991 Act of the UPOV Convention

 https://www.upov.int/edocs/pubdocs/en/upov_pub_221.pdf

[6] Shao Nong (Zhongzi) Fa [2022] No. 1 - One of the Top 10 Typical Cases of Agricultural Plant Variety Protection in 2023 Issued by the Ministry of Agriculture and Rural Affairs

http://www.moa.gov.cn/xw/bmdt/202305/W020230612599622611449.pdf

Authors: Aria Tian, Angus Wang, Ling Jin, Sunny Su, Laura Cao

TAGS

• China
• Plant Variety Rights