*AI-generated translation, for reference only.

[Keywords] 

Administrative, administrative review of rejection of new plant variety application, distinctness, clear distinction, DUS test, testing authority, test location

Case Facts

Company [REDACTED] is the applicant for a new plant variety application for wheat named "Nongmai 168" with application number 20161023.9. In response to this application, the New Plant Variety Review Board (hereinafter referred to as the Review Board) issued a decision titled "Decision on Upholding the Decision to Reject the Substantive Examination of the Nongmai 168 Variety" (Review Decision No. 21 of 2020) (hereinafter referred to as the challenged decision) on December 19, 2020, upholding the decision to reject the new plant variety application for "Nongmai 168" made by the New Plant Variety Protection Office (hereinafter referred to as the Protection Office) on July 13, 2020. Dissatisfied, Company [REDACTED] filed an administrative lawsuit, primarily arguing that: The Protection Office's rejection of the application was based on the DUS test report for the plant variety issued by the Nanjing Sub-center for New Plant Variety Testing of the Ministry of Agriculture and Rural Affairs (hereinafter referred to as the Nanjing Sub-center). The test location for this report was Nanjing, which is south of the Yangtze River and belongs to the middle and lower reaches of the Yangtze River winter wheat variety region. The suitable growing ecological zone for the applied variety and its similar variety for testing, "Huaimai 21," is both the Huang-Huai winter wheat southern plain irrigated variety region. Therefore, choosing Nanjing as the test location was erroneous, and the DUS test report issued by the Nanjing Sub-center lacks objectivity and scientific validity. The challenged decision avoided the issue of the erroneous test location, and the substantive examination rejection decision made on this basis lacks factual basis.

The Beijing Intellectual Property Court rendered the administrative judgment (2021) Jing 73 Xing Chu No. 835 on November 15, 2022: The challenged decision was revoked, and the Review Board was ordered to make a new decision. The Review Board, dissatisfied, filed an appeal. The Supreme People's Court rendered the administrative judgment (2023) SPC IP Admin. Final 95 on October 23, 2023: 1. The administrative judgment (2021) Jing 73 Xing Chu No. 835 of the Beijing Intellectual Property Court was revoked; 2. Company [REDACTED]'s claims were dismissed.

Judge's Opinion

The effective judgment of the court holds that the type of variety for which variety right protection is sought and its ecological zone are closely related to the selection of the test location. The cultivation location, suitable growing area, environment, etc., recorded in the specification of the variety right application, generally have a significant impact on the determination of the test location. The determination of the DUS test location shall be based on the applicant's record in the specification regarding the variety's suitable growing area, environment, etc., combined with the variety type, breeding process, and method, with the standard being that the characteristics of the variety can be fully expressed. In this case, the Protection Office's selection of the Nanjing Sub-center as the testing authority and the determination of the test location were not improper. The main reasons are as follows.

First, the specification submitted by the applicant to the Protection Office when applying for variety rights shall describe the region, environment, cultivation techniques suitable for the growth of the applied variety, as well as the similar varieties selected and the reasons thereof. The content of the specification is the basis for determining the DUS test location. 1. The expression of plant variety characteristics is influenced by the planting region, environment, and cultivation techniques. Testing in the region and environment suitable for the variety's growth is the basis for ensuring objective and fair test results. Pursuant to Article 30 of the Regulations on the Protection of New Plant Varieties, the examining authority conducts substantive examination primarily based on the application documents and other relevant written materials. Article 21 of the Implementing Rules of the Regulations stipulates that the specification submitted by the applicant shall include a description of the region or environment suitable for the growth of the applied variety and cultivation techniques, the breeding process and method, including detailed descriptions of the pedigree, the breeding process, and the source and name of the parents or other propagating materials used. Therefore, the determination of the region and environment suitable for the growth of the applied variety shall be made based on the applicant's record in the specification, combined with the variety type, breeding process, and method. 2. The breeding background recorded in the request form and specification for the "Nongmai 168" variety right application states: "The Huaibei region is the main wheat production area and high-yield area of Jiangsu Province… a high-quality, high-yield, widely adaptable semi-winter wheat variety suitable for planting in the Huaibei region has been bred." The main breeding location was "Jianhu County, Yancheng City, Jiangsu Province," and the region or environment suitable for growth was "suitable for early maturing planting in the southern part of the Huang-Huai wheat region." Therefore, considering the records in the request form and specification of the application, the region or environment suitable for the growth of "Nongmai 168" includes parts of Jiangsu Province north of the Huai River. Based on the record of its breeding location, the region capable of expressing the characteristics of this variety does not exclude Jianhu County, Yancheng City, Jiangsu Province, which is south of the Huai River. 3. Company [REDACTED] argued that the "southern part of the Huang-Huai wheat region" should be understood as the fourth type recorded in the "Same Suitable Ecological Zone for Nationally Approved Wheat Varieties," i.e., the "Huang-Huai winter wheat southern plain irrigated variety region." The "Same Suitable Ecological Zone for Nationally Approved Wheat Varieties" records that the "Huang-Huai winter wheat southern plain irrigated variety region" includes the plain irrigated areas of Henan Province except for parts of southern Xinyang City and Nanyang City; the irrigated areas of Xi'an, Weinan, Xianyang, Tongchuan, and Baoji Cities in Shaanxi Province; and the areas north of the Huai River in Jiangsu and Anhui Provinces. The division of approval regions for wheat in the "Same Suitable Ecological Zone for Nationally Approved Wheat Varieties" establishes comparatively suitable planting areas based on the growth characteristics of different wheat types. China's agricultural regionalization is based on natural conditions and socio-economic conditions, including agricultural resources, to carry out corresponding zoning, reflecting the most basic regional differences. The scope of agricultural ecological zones is larger than that of approval regions. There is no absolute overlapping correspondence between ecological regions and approval regions. Multiple DUS testing sub-centers may exist within the same agricultural ecological zone. "Nongmai 168" is a semi-winter wheat. Its normal growth and development require a low-temperature vernalization stage and have certain requirements for the daily average temperature and duration. The region of Jianhu County, Yancheng City, Jiangsu Province shares the same subtropical monsoon climate type as Nanjing, with similar temperatures and precipitation days, and close geographical locations. Both meet the requirements for the vernalization development stage of semi-winter wheat. Both the middle and lower reaches of the Yangtze River agricultural ecological zone and the Huang-Huai-Hai agricultural ecological zone undertake testing tasks for semi-winter wheat varieties. Therefore, when multiple testing authorities are available, the test location can be determined centrally and conveniently, considering factors such as administrative efficiency, while ensuring the full expression of variety characteristics.

Second, the determination of the test location shall be based on the standard of ensuring the full expression of the variety's characteristics. Whether the selection of the Nanjing Sub-center as the testing authority ensures the full expression of "Nongmai 168" characteristics can be further corroborated by its planting performance compared with a similar variety. 1. "Nongmai 168" underwent testing at the Nanjing Sub-center for two complete growth cycles. During the two test cycles, the growth and development of "Nongmai 168" were normal at all stages, including sowing, germination, tillering, jointing, flag leaf emergence, heading, flowering, caryopsis formation, and maturation. No incidents of seedling failure, abnormal climate, pests, diseases, drought, or waterlogging occurred. All 36 tested characteristics were expressed across the two growth cycles, with consistent performance and complete records of characteristic testing. With all 36 characteristic indicators accurately observed and fully recorded, the characteristics of the "Nongmai 168" variety were fully expressed, confirming that the selection of the test location was not erroneous. 2. "Huaimai 21" is a variety suitable for planting in medium to high fertility plots during the mid-late season in central and northern Henan, northern Anhui, northern Jiangsu, and the Guanzhong region of Shaanxi within the southern part of the Huang-Huai winter wheat region. It falls within the "Huang-Huai winter wheat southern plain irrigated variety region" where the applicant claims "Nongmai 168" is suitable for planting. The similar variety "Huaimai 21" underwent testing at the Nanjing Sub-center for two complete growth cycles. All growth and development stages were normal. The characteristic description table shows that all 36 basic characteristics could be expressed within a reasonable range, and the test characteristics were consistent across the two growth cycles. The characteristics expressed during the growth and development processes of both "Nongmai 168" and "Huaimai 21" were not affected by the test location and were fully expressed. This further demonstrates that the determination of the Nanjing Sub-center as the testing authority and the test location was not improper.

Judgment Digest

The determination of the DUS test location in the new plant variety authorization procedure shall be made based on the record in the specification regarding the variety's suitable growing area, environment, etc., combined with the variety type, breeding process, and method, with the standard being that the characteristics of the variety can be fully expressed.

Related Index

Article 25, Article 90, Item 7 of the Seed Law of the People's Republic of China (The provisions applicable in this case are Article 25, Article 92, Item 7 of the Seed Law of the People's Republic of China effective January 1, 2016)

Article 30 of the Regulations of the People's Republic of China on the Protection of New Plant Varieties

Article 21 of the Implementing Rules of the Regulations of the People's Republic of China on the Protection of New Plant Varieties (Agricultural Part)

First Instance: Beijing Intellectual Property Court, (2021) Jing 73 Xing Chu No. 835 Administrative Judgment (November 15, 2022)

Second Instance: Supreme People's Court, (2023) SPC IP Admin. Final 95 Administrative Judgment (October 23, 2023)