*AI-generated translation, for reference only.

Keywords: Administrative; Invalidation of Plant Variety Rights; Distinctiveness; Burden of Proof; Incorrect Reference Sample;

Case Facts

The breeder of the "Xikang 18" corn plant variety and the "Xishan 121" corn approved variety was [REDACTED] seed company, which transferred the rights to a [REDACTED] company in 2012. The application date for the variety right of "Xikang 18" was June 13, 2013, the grant date was May 1, 2017, and the variety right number was CNA20130494.4, with [REDACTED] Seed Industry Co., Ltd. as the holder. "Xikang 18" passed the Yunnan Provincial Crop Variety Approval on November; "Xishan 121" passed the Yunnan Provincial Crop Variety Approval on June 9, 2009. [REDACTED] company filed a request for declaration of invalidity with the Plant Variety Review Committee, arguing that "Xikang 18" and "Xishan 121" are the same variety and that "Xikang 18" lacks distinctiveness and novelty.

It was further established that on May 23, 2018, [REDACTED] Seed Industry Co., Ltd. issued a "Reply Regarding the Standard Samples of 'Xikang 18' and 'Xishan 121'" to [REDACTED] Seed Industry Co., Ltd., stating that [REDACTED] Seed Industry Co., Ltd. had mistakenly submitted the standard sample of "Xikang 18" as the standard sample of "Xishan 121."

On October 27, 2022, the Beijing Intellectual Property Court issued Administrative Judgment No. (2021) Jing 73 Xing Chu 12705, dismissing the claims of [REDACTED] company. The company appealed to the Supreme People's Court. On October 23, 2023, the Supreme People's Court issued Administrative Judgment No. (2023) Supreme Court IP Xing Zhong 132:1. To set aside the Administrative Judgment No. (2021) Jing 73 Xing Chu 12705 of the Beijing Intellectual Property Court; 2. To set aside the Decision No. 27 of 2021 of the Plant Variety Review Board on the hearing for the declaration of invalidity of the plant variety right; 3. The Plant Variety Review Board shall re-examine the request for declaration of invalidity filed by [REDACTED] company regarding the plant variety right No. CNA20130494.4, named "Xikang 18," filed by [REDACTED] company.

Judge's Opinion

The court's final judgment held that, after the grant of a plant variety right, any entity or individual may file a request for declaration of invalidity against the granted plant variety right, and the Plant Variety Review Board may also initiate invalidity proceedings ex officio.In invalidation proceedings initiated upon request, the Committee for the Review of New Plant Varieties, in principle, reviews whether the plant variety right in question meets the conditions for grant solely on the basis of the evidence and grounds submitted by the petitioner for invalidation, and does not bear the obligation to conduct a comprehensive review of the plant variety right in question, i.e., whether it meets all conditions for grant.The applicant for invalidation shall submit evidence that the plant variety right in question does not meet the conditions for grant, such as novelty and distinctiveness; where the relevant evidence establishes a high degree of probability regarding the aforementioned facts, the holder of the plant variety right shall further provide evidence that the authorized variety meets the conditions for grant.

Regarding the fact of whether there was an erroneous submission of the standard sample for "Xishan 121." The contested decision and the first-instance judgment relied solely on the "Reply Regarding the Standard Samples of 'Xikang 18' and 'Xishan 121'" issued by Xishan Seed Industry Co., Ltd. to conclude that [REDACTED] seed company erroneously submitted the "Xikang 18" standard sample as the "Xishan 121." resulting in identical standard samples for both, and consequently concluded that the identification results based on the erroneous "Xishan 121" standard sample lacked probative value. The analysis is as follows:

First, the evidence on record does not prove that [REDACTED] seed company or [REDACTED] seed company ever supplemented or submitted the standard sample of "Xishan 121", and therefore, it cannot be presumed that the standard sample of the approved variety "Xishan 121" with accession number SIG01655 was submitted in error. Second, the adverse consequences of erroneously submitting a standard sample should generally be borne by the party that submitted the sample.As an approved variety, the standard sample submitted for "Xishan 121" serves as the definitive basis for determining the variety's authenticity. Both "Xishan 121" and "Xikang 18" were both developed by the same breeding unit, [REDACTED] seed company; the former was approved in Hubei in 2009, while the latter was approved in Yunnan Province in November 2011, meaning "Xishan 121" preceded "Xikang 18." As an approved variety, the standard sample submitted for "Xishan 121" serves as the definitive basis for determining the variety's authenticity; even if the standard sample for "Xikang 18" were mistakenly used as that for “Xishan Given the fact that the standard sample for "121" was submitted, the adverse consequences of failing to submit the standard sample should generally be borne by the party responsible for the submission. If the entity responsible for variety approval is permitted to arbitrarily submit and replace standard samples without bearing the resulting adverse consequences, administrative and judicial authorities will find it difficult to verify the authenticity of the varieties actually promoted and sold, thereby harming the public interest and seriously compromising seed safety.

Regarding the question of whether "Xikang 18" possesses distinctiveness. During the examination procedure for the grant of plant variety rights   , the approval authority's substantive examination of whether the applied-for variety possesses distinctiveness ultimately relies on the phenotypic characteristics determined through field planting tests (DUS).There is no direct correspondence between the core primers (loci) used in genetic testing and the phenotypic characteristics assessed in DUS testing. Therefore, one generally cannot directly determine whether there are distinct differences in characteristics between varieties based solely on the results of genetic fingerprinting, and consequently make a   determination of distinctiveness to decide whether to grant plant variety rights.In the review proceedings for declaring a plant variety right invalid, the criteria for determining distinctiveness   should also be consistent with those in the plant variety right authorization review proceedings; that is, the final determination of whether an authorized variety   possesses distinctiveness should, in principle, be based on the phenotypic characteristics   identified through field trials; if genetic fingerprinting analysis shows no significant differences between the authorized variety and a known variety, this may serve as an important reference for determining that the authorized variety lacks distinctiveness. If the petitioner for invalidation provides evidence demonstrating that the number of differing loci between the authorized variety and the known variety, as determined by genetic fingerprinting, is below the threshold, thereby establishing a high probability that their characteristics are identical, it may be concluded that the petitioner has fulfilled the initial burden of proof. The burden then shifts to the plant variety right holder to submit rebuttal evidence proving that the authorized variety possesses distinctiveness.

The genetic identification report submitted by [REDACTED] company during the invalidation review proceedings features a reliable identification process and sample sources, and the company provided a relatively reasonable explanation for why it did not conduct adjacent planting comparison tests for "Xishan 121" and "Xikang 18"Based on the evidence submitted, it can be concluded that the company has met the standard of proof of a high degree of probability regarding the fact to be proven—namely, that "Xikang 18" is not distinctly different from "Xishan 121." At this stage, the variety rights holder, [REDACTED] Seed Company, should provide rebuttal evidence to prove that "Xikang 18" possesses distinctiveness.In this case, the evidence provided by [REDACTED] Company—including the breeder's statement, the breeding report, and the assignment agreement—is insufficient to conclude that "Xishan 121" and "Xikang 18" are different varieties. Furthermore, the characteristics recorded in the approval materials for "Xikang 18" and "Xishan 121" were not derived from side-by-side comparative trials conducted in accordance with DUS testing standards; therefore, they cannot be used to determine that "Xikang 18" possesses distinctness and distinctiveness relative to "Xishan 121." The first-instance judgment and the contested decision contained errors regarding the factual findings that "Xishan 121" and "Xikang 18" are distinctly different, as well as the allocation of the burden of proof, and their conclusions were erroneous.

Judge Digest

1.After a plant variety right is granted, any entity or individual may file a request for declaration of invalidity of the granted plant variety right, and the Plant Variety Review Board may also initiate invalidation proceedings ex officio.In invalidation proceedings initiated upon request, the Plant Variety Review Board, in principle, need only examine whether the authorized variety meets the conditions for authorization based on the evidence and grounds submitted by the petitioner for invalidation, and does not bear the obligation to conduct a comprehensive review—that is, to examine whether it meets all conditions for the grant of a plant variety right.

2.In the examination procedure for the confirmation of plant variety rights, the criteria for determining distinctiveness shall be consistent with those in the examination procedure for the authorization of plant varieties; that is, the final determination of whether an authorized variety possesses distinctiveness, the determination should, in principle, be based on the characteristics identified through field cultivation tests; where genetic fingerprinting analysis reveals no significant differences between the authorized variety and known varieties, such analysis may serve as an important reference for determining that the authorized variety lacks distinctiveness.

3. For approved varieties, the submitted standard samples serve as the final basis for determining the authenticity of the variety; the adverse consequences of incorrectly submitting standard samples shall generally be borne by the entity that submitted them.

Related Index

Articles 14 and 15 of the Regulations of the People's Republic of China on the Protection of New Plant Varieties (The provisions applicable to this case are Articles 14 and 15 of the Regulations of the People's Republic of China on the Protection of New Plant Varieties, which came into effect on March 1, 2013)

First Instance: Beijing Intellectual Property Court Administrative Judgment No. (2021) Jing 73 Xing Chu 12705 (October 27, 2022)

Second Instance: Administrative Judgment No. (2023) Supreme Court IP Admin Final 132 of the Supreme People's Court (October 23, 2023)