From knock-off luxury clothing to replica iPads, trademark and copyright infringement come in many forms. More recently, copycats are turning to plant breeders’ highly crafted innovations: fruits and vegetables.
Specifically, in China, there are a growing number of cases where local farmers are found to be illegally growing patented fruits such as apples, kiwifruits, or grapes for commercial purposes. This can have a huge knock-on effect on operators who spend millions of pounds researching the perfect fruit for their customers.
Thankfully, to protect the IP of these crunchy, refreshing goods breeders can turn to their Plant Variety Rights (PVR). In March 2022, China revised its Seed Law to empower PVR holders to combat infringers. This has already resulted in a 6-billion-yuan ($839 million) investment by seed R&D companies and is echoed as a move that will boost the entire Agrifood industry in China – here’s why.
What is Seed Law?
Originally drafted in 2000, China’s Seed Law is legislation that safeguards the lawful rights and interests of seed producers. It includes the protection of everything from the rational use of germplasm resources to protecting the right to new varieties of plants. Designed to push forward the industrial management of seeds and guarantee grain safety of the state, this law promotes the development of agriculture and forestry.
Before the last revision, Seed Law only protected propagation materials such as trees, branches, and seeds. In March 2022, fruits were found to be illegal as a form of harvested materials generated from illegal propagation materials. Not only that, but the Seed Law revisions also extended the protection chain from simply covering production, propagation, and sales to production, propagation, and treatment for disposing, offering for sale, selling, importing, exporting, and storage – covering nearly the entire supply chain.
Using the law to sow and yield protection
Thanks to these revisions, PVR holders have more power than ever. For patent lawyers looking to use the Seed Law to their advantage, they need to get their evidence collection right.
To convince a judge of PVR infringement of such a highly specialized subject, you need to get granular. That means expertly collecting evidence from Orchard sites to capture the necessary propagation and harvested materials needed i.e., saplings and fruits.
Once such material is collected, take it a step further and conduct DNA analysis – in close cooperation with your local law – to be presented as evidence in court. If the plant breeding process is extremely complex and time and resource heavy then we must demonstrate the challenge it takes to create any new plant, fruit, or vegetable variety.
Remember, the new Seed Law means that the protection scope is wider and of a higher protection level in China. For example, in a recent case involving ENZAfruit and its PVR known as Scilate and branded as ENVY apples, the New Zealand-based operator was awarded the highest compensation amount in the vegetative plant field in a PVR infringement case as well as punitive damages – something entirely uncommon in PVR cases up until now.
Similarly, we also saw International Fruit Genetics (IFG) protect 13 of its grape varieties in China, where the local Ministry of Agriculture and Rural Affairs (MARA) imposed significant administrative fines against the infringer.
Impact on the agriculture industry
The revised Seed Law and PVR-related regulations reflect the Chinese Authority’s determination to protect PVR rights in China. Now that both propagation material and harvest materials are protected, more and more agricultural companies can safeguard themselves from copycats.
The knock-on effect of this could positively benefit not only plant breeders but everyday Chinese citizens as well. Given the wider protection scope and level, food businesses exporting goods into China will be encouraged to ramp up activity.
That means both foreign and local PVR owners will actively provide high-quality propagation materials such as fruit. With the food security issue the Chinese state has been attempting to tackle since 2020 this is a huge step in the right direction.
For plant breeders, it’s crucial to look at strategies that can prevent illicit actors from copying their IP and profiting from years of R&D. Thanks to revisions in China’s Seed Law, specialist IP lawyers are now in the right position to shield PVR holders’ IP.
As such, our best piece of advice is to look to China for protection. The law has empowered organizations to more actively protect their PVR rights – should there be any infringement, the law will be on your side and will punish infringers appropriately. Should it escalate to that point, it’s important to closely monitor the market, collect evidence as early and effectively as possible, bring specialist IP legal experts in, and take legal action in a timely matter.
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