Department Of Agriculture's Agricultural Plant Variety Rights Provisions Dealing With Infringement Cases

Original Language Title: 农业部农业植物新品种权侵权案件处理规定

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(December 30, 2002 the Agriculture Department released 24th) full text first to deal effectively with new plant variety right (hereinafter referred to as variety rights) infringement cases, according to the People's Republic of China regulations on the protection of new varieties of plants (hereinafter referred to as the regulations), these provisions are formulated.
    Second variety rights infringement cases in these rules refers to without the permission of the variety rights, commercial production or sale of a protected variety propagation material and propagating material of the protected variety be reused in the production of propagation material of another variety.
    Third agriculture Administration Department is responsible for the people's Governments above provincial level variety rights infringement cases in the administrative area.
    Fourth article requests provincial above government agricultural administrative sector processing varieties right infringement case of, should meet following conditions: (a) requests people is varieties right people or interest relationship people; (ii) has clear of was requests people; (three) has clear of requests matters and specific facts, and reason; (four) belongs to by case agricultural administrative sector of by case range and jurisdiction; (five) in litigation limitation range within; (six) party no on the varieties right infringement case to court prosecution. First referred to an interested person, including the right of licensing contracts licensee, varieties of legal heirs.
    Among the varieties of a license contract for the licensee and exclusive licensing contract to the licensee may claim by itself; the exclusive licensee of the licensing contract in the case of variety right owner does not request, requests can be submitted separately unless otherwise specified in the contract, general licensing contracts licensee cannot claim by itself.
    Fifth request to deal with cases of infringement of the right of limitation of two years, since the variety right owner or other interested person learned or should have learned that date on which the infringement.
    Sixth request the people's Governments above provincial level agricultural Administration Department to deal with cases of infringement of the right shall be filed and the variety rights certificate of variety rights, and provided in accordance with the requested number of copies the request. The request shall record the following: (a) the claimant's name, address, name and position of the legal representative.
    Principal-agent, the agent's name and agency name, address, and (ii) the requested name or name and address of the person; (c) the request processing issues, facts and reasons.
    Requests shall be signed or sealed by the claimant.
    Seventh article requests meet this approach sixth article provides conditions of, provincial above government agricultural administrative sector should in received requests book of day up 7th within filed and written notification requests people, while specified 3 name above singular hosted personnel processing the varieties right infringement case; requests not meet this approach sixth article provides conditions of, provincial above government agricultural administrative sector should in received requests book of day up 7th within written notification requests people not accepted, and description reason. Article eighth of agriculture administration departments at or above the provincial level shall, from the date of filing in the 7th and its annex a copy of the written request by mail, by personal delivery or by other means to send the requested person, requires the respondent in the 15th date of receipt, in accordance with the number of requests has provided his written copy.
    Party who fails to submit the statement of Defense, does not affect the processing of agriculture administration departments at or above the provincial level.
    Of the person filing the request, people's Governments above provincial level agricultural administration in the 7th will be the date of receipt of the copy of reply by mail, by personal delivery or by other means to the requesting person. Nineth of agriculture administration departments at or above the provincial level to deal with rights infringement cases in written proceedings. If necessary, oral proceedings may be held, and 7th in the oral hearing the parties the time and place of the oral proceedings.
    Parties without any justified reason, refuses to attend or drop out without permission, according to the request to withdraw the request processing, the requested person, in the absence of treatment.
    Agriculture administration departments at or above the provincial level to hold oral proceedings, participants should record and proceedings, after they have been checked, hosted by the case officer and participant signature or seal.
    Tenth article except party reached mediation, and reconciliation agreement, requests people withdrawn requests zhiwai, provincial above government agricultural administrative sector on infringement case should made processing decided, and making processing decided book, stated following content: (a) requests people, and was requests people of name or name, and address, statutory representative people or main head of name, and positions, agent of name and agent institutions of name; (ii) party statement of facts and reason; (three) finds infringement behavior whether established of reason and according to;
    (D) decision: acts of infringement is established, shall order the claimant to stop the infringing act immediately, giving penalties; acts of infringement are not established should be dismissed claimant's request; (e) appeal against the decision may apply for administrative reconsideration or bring an administrative suit the ways and terms.
    The written decision shall be signed by the employees in cases, and stamped with the official seal of the people's Governments above provincial level agricultural administration.
    11th article provincial above government agricultural administrative sector finds infringement behavior established and made processing decided of, can take following measures, stop infringement behavior: (a) infringement people production authorized varieties breeding material or directly using authorized varieties of breeding material production another a varieties breeding material of, ordered its immediately stop production, and destroyed production in the of plant material; has get breeding material of, ordered its shall not sales;
    (B) infringer selling protected variety propagation material or sell directly using a protected variety propagation material production of reproductive material of another variety, ordered to immediately cease sales acts, and may not be sold have not yet sold the infringing variety propagation material, (iii) the confiscation of illegal income; (d) sentenced to fine illegal gains of up to 5 times, (v) other necessary measures to stop the infringing act. Article 12th on the province-above people's Government is dissatisfied with a decision made by the Administrative Department of agriculture, people's Court may apply for administrative reconsideration or bring an administrative action.
    Expiration does not apply for administrative reconsideration or bring a suit does not stop the infringing act, agriculture administration departments at or above the provincial level may apply to a people's Court for compulsory execution. 13th people's Governments above provincial level departments of agriculture administration of the infringement is established, based on the principle of voluntary, to mediation the damages caused by the infringement.
    If necessary, units and individuals could be invited to assist the mediation. A conciliation agreement, people's Governments above provincial level agricultural administrative departments shall draw up a conciliation agreement, stated the following: (a) the claimant and the claimant's name, address, name, position of the legal representative.
    Authorized agent, the agent's name and agency name, address, and (ii) responsibilities the main facts of the case and the parties; (c) the agreements and cost-sharing. Mediation agreement signed by the parties or stamped, in case employees who signed and stamped with the official seal of the people's Governments above provincial level agricultural administration.
    After the service of the mediation, the Parties shall perform the agreement.
    Mediation no agreement, the parties may suit before a people's Court according to law. Article 14th violation compensation amount of variety rights, infringement of rights caused by the loss or obtained by the infringer for infringement of interests.
    Benefits human loss or infringement of rights of people it is difficult to determine, in accordance with the variety right 1 time times the royalties of more than 5 times, if appropriate, of the following.
    15th people's Governments above provincial level agricultural administrative department or the people's Court established to deal with infringement acts decision or after the verdict, was right to the claimant in respect of the same variety once again make infringements of the same type, variety right owner or other interested person the request processing, agriculture administration departments at or above the provincial level may directly make decision ordered to stop the infringing act immediately and to take appropriate punitive measures.
    16th agriculture Administration Department in accordance with the following methods determine the breeds ' behavior in cases of illegal obtained: (a) sales of infringing or counterfeit the reproductive material of the variety, to the multiplication material price is multiplied by the number of sales as part of its illegal income, (ii) establishing infringement or counterfeiting the variety rights contract for the collection of fees as part of its illegal income.
    17th people's Governments above provincial level agricultural administration to investigate rights infringement cases and agriculture administration departments at or above the county level shall investigate and deal with cases of counterfeited variety programs, application of the regulations on the procedure of administrative penalty.
    18th article this way by the Ministry of agriculture is responsible for the interpretation.
                                                                19th article this way come into force on February 1, 2003.

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