How to carry out plant protection

New plant varieties refer to new plant varieties that have been artificially cultivated or developed from wild plants that have been discovered. They are novel, specific, consistent and stable, and have appropriate names. Units and individuals that have completed breeding enjoy exclusive rights to the varieties authorized by them, that is, the right to new plant varieties. No unit or individual may, without permission, produce or sell the propagating materials of authorized varieties for commercial purposes, and may not reuse the propagating materials of authorized varieties for the production of propagating materials of another variety for commercial purposes.

The International Union for the Protection of New Varieties of Plants is an intergovernmental organization with its headquarters in Geneva. According to the principle stipulated in the International Convention for the Protection of New Varieties of Plants, member countries grant variety rights to new varieties of plants respectively.

The fourth plenary session of the ninth NPC Standing Committee of People's Republic of China (PRC) decided (1adopted on August 29th, 1998) to join the International Convention on the Protection of New Varieties of Plants (1978). China formally acceded to the Convention on April 23rd.

Protection scope of new varieties of forestry plants: trees, bamboos, woody vines, woody ornamental plants (including woody flowers), fruit trees (dried fruits) and woody oil, beverages, spices, woody medicinal materials and other plant varieties.

Protection object: plant propagation materials. Propagation materials refer to the whole plant (including seedlings) and seeds (including roots, stems, leaves, flowers, fruits, etc.). ) and any part of plants (including tissues and cells).

Five conditions for granting variety right: novelty, specificity, consistency, stability and proper name.

First, the connotation of the protection of new plant varieties

Protection of new plant varieties refers to the protection of the rights of plant breeders. The object of protection is not the plant variety itself, but the rights that plant breeders should enjoy. This right is the exclusive right granted by the government to plant breeders to use their varieties. The rights of plant breeders, like patents, copyrights and trademarks, belong to the category of intellectual property. Without the permission of the breeder, no person or organization has the right to engage in commercial activities by using the varieties cultivated and granted variety rights by the breeder. At present, the protection of plant variety rights in China is limited to the propagation materials of plant varieties. That is to say, only the owner of the variety right has the sole right to sell the breeding materials of the variety, or to produce the breeding materials for the purpose of sales. Any other organization or individual can only carry out it under the authorization of the variety owner.

Second, the purpose and significance of the protection of new plant varieties

1. The fundamental purpose of the protection of new plant varieties is to encourage the cultivation and utilization of new plant varieties and promote the development of forestry production. Generally speaking, the progress brought by new plant varieties is 30%-60%. Protected varieties are new varieties, and using protected varieties is using new varieties. A new variety is protected by the government, and its essence is to improve the popularity of this new variety and its own "worth". Therefore, this new variety is easy to be accepted by people and widely promoted in production.

2. The protection of new plant varieties is conducive to establishing a fair and just competition mechanism in China's breeding industry. This mechanism can further encourage breeders to actively participate in plant variety innovation activities. Through the protection of new plant varieties, breeders can get due benefits. In this way, breeders can not only recover their breeding capital, but also invest this capital in the cultivation of new plant varieties. This repetition can make the cultivation mechanism of new plant varieties better adapt to the market economy.

3. The implementation of the new plant variety protection system in China is the inevitable result of the development of China's socialist market economy, and it is also an indispensable link for China to participate in the process of international economic and technological integration. If China does not protect new plant varieties, countries that have protected new plant varieties will not sell their new plant varieties to China for the purpose of protecting their own interests, or only sell some varieties that have exceeded the protection period. Even in some international exhibitions held in China. Because China did not protect new plant varieties before, some countries openly said that they could not bring their new varieties to China for exhibition. In addition, the new varieties cultivated by China breeders have also been lost overseas, causing serious losses to the country. Therefore, the implementation of the new plant variety protection system can promote the international trade, international exchange and cooperation of plant varieties in China.

Third, the scope of protection of new plant varieties

The State Forestry Administration and the Ministry of Agriculture are responsible for the protection of new plant varieties in China. According to the division of labor between the two departments in the protection of new plant varieties, the State Forestry Administration is responsible for the protection of new plant varieties such as trees, bamboos, woody vines, woody ornamental plants (including woody flowers), fruit trees (dried fruits) and woody oils, beverages, seasonings and woody medicinal materials.

Four, apply for plant variety protection should have the conditions.

Protected plant varieties must be cultivated artificially or cultivated from wild plants. Such a variety should meet the following conditions: novelty, specificity, consistency, stability and proper name.

Verb (abbreviation of verb) ownership of new plant variety right

1. Breeding that individuals perform their own tasks or mainly use their own material conditions, including funds, equipment, venues, breeding materials and technical data, belongs to job breeding, and the variety right belongs to their own units. The variety right of non-post breeding belongs to the individual who has completed the breeding.

2. The ownership of the entrusted breeding variety right shall be determined by the contract between the entrusting party and the entrusted party. If there is no contract, the variety right belongs to the trustee. In other words, units or individuals who are not directly engaged in breeding can also obtain variety rights through entrusted breeding, thus obtaining economic benefits.

3. The variety right of cooperative breeding belongs to the units and individuals who jointly complete the breeding work.

4. If two or more applicants apply for the variety right of a new plant variety respectively, the variety right shall be granted to the first applicant; If an application is made at the same time, the variety right shall be granted to the person who completes it first.

5. The application right and variety right of new plant varieties can be transferred according to law. In a sense, variety right is actually a commodity, so it can also enter the market according to the principle of market economy.

Six, the protection period of new plant varieties

The protection period of new plant varieties depends on the length of time needed to cultivate plant varieties. Generally speaking, woody plants are cultivated for a long time, so the protection period is also longer. China stipulates that the protection period of variety rights of lianas, trees, fruit trees and ornamental trees is 20 years, and other plants are 15 years.

Seven, exceptions to the protection of new plant varieties

1. New variety cultivation and scientific research activities

No organization or individual may use authorized varieties for breeding and other scientific research activities. In other words, the breeding materials of authorized varieties can be used to cultivate new varieties and other scientific research activities. The rights of breeders do not include the above two aspects.

2. Farmers' privileges

In countries that protect new plant varieties, it is usually stipulated that farmers can enjoy certain rights to meet their basic needs for authorized varieties. This is also called peasant privilege. Farmers have the right to use the harvested materials of authorized varieties as breeding materials for their own land. In other words, farmers have the right to use the authorized varieties to reproduce the propagating materials of the authorized varieties for their own use.

Eight, how to protect and exercise their legitimate rights and interests.

Breeders who want to protect their legitimate rights and interests after cultivating new varieties should apply to the State Forestry Administration or the Ministry of Agriculture for variety rights. Only after the State Forestry Administration or the Ministry of Agriculture approves the granting of variety rights can the legitimate rights and interests of breeders be protected by the state. If the breeder does not apply to the state for the rights and interests of the new varieties he has cultivated, it means that he will automatically give up his rights and interests; The state does not protect the rights and interests of varieties that have not been applied for, or those that have been applied for but not approved. Only the state can identify new plant varieties that need to be protected, and provincial and below governments have no right to identify them. China breeders can apply directly to the State Forestry Administration or through an agency in accordance with the prescribed procedures. After obtaining the variety right, China breeders can use their exclusive rights to cultivate or sell their own breeding materials, or they can issue licenses to other organizations and individuals in exchange for royalties. Generally speaking, for a large number of plant varieties, breeders often do not directly control the propagation of varieties, but cooperate with distributors or other intermediary organizations to collect a certain percentage of joining fees according to the unit price of propagation materials. For high-value varieties, breeders can control the breeding or sales of varieties and get returns directly from the sales of breeding materials. Breeders may request the competent forestry authorities of the people's governments at or above the county level to deal with the acts that infringe upon their legitimate rights and interests, or they may bring a lawsuit directly to the people's court.