PVP Enforcement in China: Expanding safeguard for harvested materials through Legal reform, Strategic litgation & Acceptance of DNA analysis

In China, companies are increasingly demonstrating a strong commitment of protecting Plant Variety Protection (PVP) rights by successfully pursuing cases[1] and deterring infringement activities through punitive compensation awards from courts[2]. ?These decisions hold the potential to attract greater investment in the seed sector and that was one of the objective to revise China's Seed Law in March 2022 and also revised PVP regulations. This revision is proving to be significant changes to enforce the PVP regime as it is building more confidence in the sector.? This post is to highlight one of the changes as earlier law did not extend protection to harvested material, but updated law is able to safeguards both harvested and propagating materials of protected varieties (Article 7) of revised PVP legislation. In brief, such changes are capable to establish a precedent for robust PVP protection, particularly for vegetatively propagated species.

The Case at a Glance: ?In Sep 2022, a New Zealand based company i.e. ENZAFruit has filed an infringement case of an apple variety against local grower for using variety without authorization. This apple variety `Scilate’ is being sale under brand “ Envy” under a legitimate production arrangement in China with Joy Wing Mau Fruit Technologies Corporation Limited .In this case, ENZAFruit was successfully awarded demages in a court ruling came in 2023 with in 10 months from filing of case (Sep 2022). The positive decision against infringer was possible due to many reasons, including changes in law in china, litigation strategy adopted by law firm (Lusheng) and company, Collection of evidence during different stages and, acceptance of DNA analysis by the court.

?Factors, Key takeaways & Way Forward

Several factors have influenced this decision, with key aspects outlined below:

• Membership of UPOV: China and New Zealand are members of the International Union for the Protection of New Varieties of Plants (UPOV). This membership enables companies to protect and authorize the use of plant material under standardized provisions across member states, including China. UPOV membership offers various advantages, such as access to larger markets, fostering investment and innovation in local plant breeding, providing growers and farmers with new cultivars, and facilitating global knowledge-sharing.
• Chinese Amendments in Law: This case highlights the significance of legislative chages in China to address previously existing gaps in Plant Variety Protection (PVP) laws. Earlier, PVP laws in China were limited to propagating materials, excluding harvested materials. However, amendments in March 2022 extended the scope of protection to cover both propagating and harvested materials. These changes enable comprehensive protection ?by ensuring better enforcement of rights for breeders.
• Acceptance of DNA Analysis in Infringement Cases: Proving infringement is not a simple task but strategically planned evidence collection during planting and harvesting stages is crucial to avchive expected outcomes. In this case, the use of DNA analysis proved to be a fast and reliable method for demonstrating infringement. While DUS (Distinctness, Uniformity, and Stability) testing is essential for registration, but DNA analysis provides a relaiable mechanism for resolving infringement disputes more efficiently. The court’s acceptance of DNA analysis sets an important precedent for future cases.
• Cascading Effect avaialble in law supports PVP Enforcement: This case highlights and reinforce Article 14(2) and (3) of the UPOV Convention, which establish the “cascading effect.” This principle ensures that breeders can enforce their rights in relation to harvested material only if they could not exercise those rights over propagating material. Similarly, the breeder’s rights extend to products made from harvested materials if they could not enforce rights over the harvested material itself. This layered protection strengthens breeders' ability to safeguard their innovations.
• Combining Plant Breeders' Rights (PBR) and Trademarks as long-terms strategy: Using a combination of trademarks and PVR protection is an effective strategy to create distinctive, premium products. While PVRs offer protection for plant varieties, trademarks ensure continued brand identity and market exclusivity even after PVR expiration. Strong brand loyalty allows retailers to command higher prices, enhancing profit margins. This dual approach not only secures intellectual property but also reinforces a product's market value and competitiveness. Eg. Apple variety `Scilate’ was in sold under brand “Envy”

Sharing Best Practices by New Zealand's PVP Authority: The publication of this case in the Plant Variety Journal of New Zealand's PVP authority demonstrates a commitment to promoting awareness of PVP enforceability globally. Sharing such cases encourages global collaboration and strengthens the understanding of IP rights enforcement in the agricultural sector. (Reference: PVR Journal 177, New Zealand).

Key takeaways:

1. Membership of UPOV and existence of conventional country kind of arrangement can be supportive to protect material across the geographies.
2. A country should amend laws to the extent it suitable to address challenges and protect interest of breeder and farmers. Further, it is important to decided litigation strategy and execution of the same.
3. DNA analysis to be considered by court in infringement case as fast and reliable method. Court and authorities shall not be relied more on DUS as this is procedure for the purpose of registration.
4. Scope of rights in a country's law shall be available to protect propagating as well as harvested materials. (cascading effect)
5. PVP denomination shall be allowed to associate with trademark during trade operations and this can be proved as good long terms strategy as PVP has fixed duration.
6. Authorities shall adopt and share best practices to increase awareness to build trust on PVP system by sharing case updates in the journal.
7. Company shall be determined to pursue litigation, if other remedies are not yielding results as expected.

?Way forward

The victory underscores the significance of planning and executing legal strategies in protecting intellectual property (IP) rights, particularly in agriculture. By setting a precedent for Plant Variety Rights (PVR) infringement cases, it enhances confidence among agribusinesses to actively pursue IP enforcement. This success highlights the importance of legal preparedness, legislative amendments, and strategic evidence utilization. This case also highlights that DNA analysis to be considered a vital tool to decide on informant cases. Such efforts will not only safeguard innovation but also encourage sustainable growth and competitiveness in the agricultural sector.

Protection of Plant Varieties and Farmers Rights Authority II International Union for the Protection of New Varieties of Plants (UPOV)

#PVPEnforcement #DNAAnalysis #LegislativeReforms #SustainableAgriculture #UPOV#TrademarkAndPVR #HarvestedMaterialProtection #AgricultureIP

[1] Ezafruit wins IP case in China: https://www.farmersweekly.co.nz/markets/enzafruit-wins-ip-court-case-in-china/

[2] https://rouse.com/insights/news/2024/strategic-partner-lusheng-law-firm-wins-largest-chinese-vegetative-pvr-infringement-civil-case-compensation-for-enzafruit??

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