Protect agricultural "chips", come true!
Author: reporter Wang Jinhu
"Guangming Daily" (05 edition on January 08, 2022)
【Dharma Eye View】
The new variety of rice that the three units worked hard to bred was dubbed by a company for profit.
A judgment from the Supreme People's Court made the infringer pay the price he deserved.
In September 2021, the case of Sichuan Lvdan Zhicheng Seed Industry Co., Ltd. v. Luzhou Taifeng Seed Industry Co., Ltd. for infringement of new plant variety rights was listed by the Supreme Law as a typical case of judicial protection of intellectual property rights in the seed industry.
Seeds are the "chips" of agriculture and the "lifeblood" of national food security.
In July 2021, the Central Comprehensive Deepening Reform Committee reviewed and approved the "Seed Industry Revitalization Action Plan", which requires strengthening the protection of intellectual property rights in the seed industry, comprehensively using legal, economic, technical, administrative and other means to implement full-chain and full-process supervision. It is necessary to strike hard against outstanding problems such as counterfeiting and shoddy, deck infringement, and make infringers pay a heavy price.
In December 2021, the Standing Committee of the National People's Congress passed the draft amendment to the Seed Law, which provides a clearer basis for strengthening the protection of new variety rights from various aspects.
How to "fight the seed industry to turn around"?
Protect the intellectual property rights of the seed industry, effectively deal with the increasing number of disputes over new variety rights, and make the R&D investment proportional to the output, which is worthy of in-depth discussion.
There are many "Li Gui" in the deck, attacking the whole chain
In 2017, Wang, the manager of a certain industry company in Nanchang, Jiangxi, put the fake and inferior seeds "Lingliangyou 711" that had not passed the approval of the relevant departments into a package printed with "Tyou 705" and sold them as good seeds.
After the farmers who purchased this variety planted, the seedlings failed to head and bear fruit on schedule, resulting in the failure of more than 200 farmers to harvest more than 4,000 mu of farmland, resulting in a direct economic loss of more than 4.6 million yuan.
The procuratorial organ prosecuted him for the crime of producing and selling fake and shoddy seeds. The court of second instance found that Wang constituted the crime of producing and selling fake and shoddy seeds, and sentenced him to 7 years in prison and a fine of 150,000 yuan.
"The good seed is more grain, and the inferior seedling is yellow".
Some farmers unfortunately bought fake and shoddy seeds in the market, and instead of increasing their yields at harvest, they reduced their yields or even failed to harvest them.
In addition, criminals use the brand packaging of regular seeds when selling, which also damages the interests and brand reputation of regular seed producers and operators.
"my country's criminal law has the crime of producing and selling fake and inferior seeds, which is mainly aimed at the behavior of producing and selling fake and inferior seeds of substandard quality. These seeds usually do not have the corresponding variety approval certificate. Under the criminal strike, the governance effect of such behavior is more obvious. According to Mu Ping, an associate professor at the School of Intellectual Property, Southwest University of Political Science and Law, the most common case is the infringement of seed cards.
The so-called deck infringement usually includes directly using other people's seeds with their own variety names, or using their own seeds with other people's varieties names.
These sets of seeds usually have a variety approval certificate, which is generally difficult to be punished by the criminal law. Instead, they are punished with economic compensation for infringing the new variety rights.
"Although a seed is small, it usually takes several years to develop a new variety, and it is a condensed effort of scientific researchers. The act of decking directly puts it into its own bag for sale, which is an obvious steal of intellectual achievements. Mu Ping pointed out that the dummy behavior has seriously dampened the R&D enthusiasm of breeding enterprises and scientific research institutes. And security is also extremely disadvantageous.
The emergence of a new seed often means higher yields and better economic benefits. How to effectively protect the legitimate rights and interests of breeders and prevent new breeds from being rigged by criminals?
Starting from July 2021, the Ministry of Agriculture and Rural Affairs, together with relevant departments, will launch a half-year special rectification action to protect intellectual property rights in the seed industry, and severely crack down on illegal acts such as fake brand infringement, production and sales of fake and inferior products.
The "Several Provisions of the Supreme People's Court on the Specific Application of Legal Issues in the Trial of Disputes over Infringement of New Plant Variety Rights (II)" (hereinafter referred to as "Several Provisions (II)"), which came into effect on July 7, 2021, increased the number of new plant varieties rights. The strength of protection, in particular, strengthens the crackdown on the infringement of the deck, and strictly handles the infringement of the deck with reference to the counterfeiting of registered trademarks. Compensation will be dealt with seriously.
On December 24, 2021, the draft amendment to the Seed Law passed by the Standing Committee of the National People's Congress expanded the protection scope and links of new plant variety rights, extending the scope of protection from the propagating materials of authorized varieties to harvesting materials, and reducing the protection link from production to production. , propagation, sale extends to production, propagation, processing (seed treatment for propagation), offering for sale, sale, import, export, storage, etc.
"These regulations provide more opportunities for breed rights holders to claim their rights, reduce the difficulty of proof for rights protection, and constitute a full-chain attack on infringements." Mu Ping believes that the improvement of laws and regulations will continue to form a system synergy, and the counterfeit infringement will continue to be strengthened. The crackdown has provided a legal basis for the orderly development of the seed market.
"Original work" and "adaptation", how to resolve disputes
A certain subsidiary company reported that after a long-term investment in research and development of new varieties, it found that some "suspicious seeds" were circulating in the market, which were similar to the seeds it developed.
After investigation, those "suspicious seeds" were "new varieties" bred based on their own seeds.
"Compared with the copying infringement, which directly sells other people's improved seeds in their own packaging, the seed counterfeiting infringement is to steal the research and development results of others by 'cultivating new varieties'. Generally speaking, 'imitation seeds' or illegally obtaining parents Afterwards, hybridize and breed so-called new varieties, or directly mix and use various varieties with higher reputation and better market conditions to launch so-called new varieties, etc.” Yang Fan, an associate professor at the Department of Law of Beijing Forestry University, said that criminals fine-tune the seeds and “ Improvement”, in an attempt to gain higher market recognition with a lower cost input, this is actually a speculation of “free rider” and “shortcut”.
The new varieties cultivated by scientific researchers have been counterfeited by criminals in a relatively short period of time at a very low cost, and put into the market at a lower price, obtaining huge illegal profits, while the market share of regular new varieties will be higher. be diluted.
Yang Fan pointed out that this kind of behavior disrupted the normal order of the seed market, and in the long run, it will have a serious adverse impact on the development of my country's seed industry scientific research.
The characterization of counterfeiting and infringement is not only a legal issue, but also a professional issue.
At present, my country has not yet established a complete and comprehensive seed gene information database and detection technology system. When determining whether a seed is a counterfeit and infringing product, it may face technical difficulties.
"Seed testing and identification technology should be strengthened to improve the quality and efficiency of testing and identification, so that counterfeit seeds have nowhere to hide." Speaking of which, Yang Fan also admitted that building a complete testing technology system is a long-term systematic project that requires capital investment , technical support and multi-party cooperation.
In response to the current prominent problems such as counterfeiting in the seed industry, my country has issued judicial interpretations in a timely manner, in order to form a high-pressure crackdown situation and make infringers pay a heavy price.
The new seed law established a substantial derivative variety system.
Substantially derived varieties refer to varieties that are substantially derived from the original variety, or derived from substantially derived varieties of the original variety, which are significantly different from the original variety.
Substantially derived varieties can apply for new plant variety rights and can obtain authorization, but when they are used for commercial purposes, the consent of the owner of the plant variety rights of the original variety shall be obtained.
According to Yang Fan, this is similar to the relationship between the original novel under copyright law and the stage script adapted from it.
The establishment of this system aims to encourage original innovation and solve problems such as the damage of seed homogenization to the legitimate rights and interests of variety rights holders.
However, the implementation of the new system still needs the support of many supporting measures.
"First of all, it is necessary to form an effective deterrent to lawbreakers, and to maximize the cost of counterfeiting and infringement. The new seed law has a positive response to this, which is a very good direction. Second, agricultural administrative departments, market supervision departments and consumers. The association should cooperate and supervise the seed market in an all-round way without dead ends. For example, the seeds in the market are regularly sampled, and various channels are open to actively accept reports and complaints from the society on seed infringement. Finally, in order to protect the rights of new varieties, Counterfeiting and infringement should be solved from the root cause, strict verification should be carried out on the application for certification, and the varieties with little difference should be strictly imported and strictly exported, so as to avoid the problem of homogenization in the seed market.” Yang Fan said.
Self-propagation and infringement, the boundary is very clear
Qin, a farmer in Jinhu, Jiangsu Province, obtained more than 900 mu of farmland through land transfer. Without the permission of the seed company, he used the "Nanjing 9108" rice seeds he kept for large-scale production and operation, and was sued by the seed company. infringement.
The court did not support Qin's defense claim that it belonged to the situation of "farmers' self-propagation and self-use", and ordered him to compensate the seed industry company for economic losses of 100,000 yuan.
In my country, farmers have the habit of keeping their own seeds.
After the crops are harvested, farmers keep the full grains as seeds for the next season, which has a history of thousands of years in my country.
With the advancement of agricultural science and technology, the seed market has prospered, and many new varieties with high yield and resistance to diseases and insect pests have been developed, becoming the choice of more and more farmers.
New varieties are the intellectual achievements of scientific researchers, and the holder of the variety rights enjoys exclusive rights.
Under such circumstances, does our country's thousand-year-old tradition of farmers' self-cultivation meet the current legal requirements?
"At present, although the scale of agricultural production and operation is constantly improving, for small-scale farmers, retaining the right to keep their own seeds can reduce production costs and stabilize production and life. Our laws have made corresponding arrangements for this. For example, farmers purchase After the regular rice seeds are harvested, the rice can be reserved for the next season of rice seeds and continue to be planted. This belongs to the situation of 'farmers' self-propagation and self-use' stipulated in Article 29 of the Seed Law, and they can be used without the permission of the variety right holder. Fees." Zhang Xixin, a judge at the Beijing Intellectual Property Court, said that this provision is based on the reality that my country is a big agricultural country.
The peasant group is huge, and as a feedback mechanism, the right of peasants to reproduce and use by themselves is reserved.
With the advancement and deepening of my country's rural land reform, new types of large-scale farmer contracting households have gradually emerged, and new types of entities such as farmer professional cooperatives and family farms are used as cover for infringement.
It is very important to determine the standards and boundaries of exceptions for farmers' self-propagation and self-use, and to achieve a balance between the interests of farmers and breeders.
"Several Provisions (2)" not only clarifies the legal boundary of farmers' self-propagation and self-use exceptions under typical circumstances, but also retains a certain degree of system flexibility in view of the complexity of the actual situation, and defines typical farmers' self-propagation and self-use behaviors.
All the farmers’ self-propagation and self-use within the scope of their family’s rural contracted management land are included in the tort exception; in addition, it also provides principled guidelines for behaviors other than the typical farmers’ self-propagation and self-use, and clarifies that the alleged infringement should be comprehensively considered. The purpose, scale and whether it is profitable or not are determined.
"This arrangement is very reasonable. It strikes a good balance between the rights of new varieties and farmers' right to self-propagation and self-use. It not only continues the tradition and ensures the reasonable use of small-scale farmers, but also keeps pace with the times, clarifies the legal boundaries and protects The legitimate rights and interests of breed rights holders." Zhang Xixin said.
Case 1
In March 2016, the "Yixiangyou 2115" rice jointly bred by Sichuan Ludan Seed Industry Co., Ltd., Sichuan Agricultural University College of Agriculture, and Yibin Academy of Agricultural Sciences obtained new plant variety rights.
In 2018, Luzhou Taifeng Seed Industry Co., Ltd. sold "Yixiangyou 2115" rice seeds without permission, and Ludan Company sued it for infringement.
In the first instance, the Sichuan Chengdu Intermediate Court ordered Taifeng to stop the infringement, compensate 700,000 yuan for economic losses and more than 80,000 yuan for reasonable expenses.
Taifeng Company expressed dissatisfaction with the opinion that the favorable inspection report submitted by the seed administrative authority for inspection was not recognized and filed an appeal.
The Supreme People's Court of second instance rejected the appeal and upheld the original judgment.
This case is a typical case of cracking down on the infringement of seed duplicity, reflecting that my country is effectively increasing the compensation for intellectual property rights infringement in the seed industry, and ensuring that innovators in the seed industry obtain economic benefits in accordance with the law.
For the sales of sets of cards, the infringer shall be sentenced to compensate the variety rights owner for economic losses and reasonable expenses while the judgment is to stop the infringement.
Increase the application of punitive damages, attack serious violations of variety rights, and impose punitive damages within the statutory range. A strong signal of the strength of judicial protection.
Case 2
Jiangsu Tomorrow Seed Company is the licensee of the wheat variety "Huaimai 33".
It was found that Jinmancang Seed Company was selling "Huaimai 33". Tomorrow Seed Company believed that Jinmancang Company's actions constituted infringement, so it petitioned to order Jinmancang Company to stop the infringement and compensate for the losses.
The Jinmancang Company argued that it sold commercial wheat grains and not wheat seeds.
The Nanjing Intermediate People's Court of Jiangsu Province held that Jinmancang Company sold the accused infringing products, and the price of the accused infringing products was significantly higher than the price of wheat commodity grains in that year, so it should be determined that it was selling "Huaimai 33" wheat seeds, so it ruled that Jinmancang Company The company immediately stopped selling the infringing seeds and compensated Tomorrow Seed Company for economic losses of 1 million yuan.
Jinmancang Company refused to accept it and filed an appeal.
The second instance of the Jiangsu Higher People's Court held that the first-instance court's determination was not inappropriate, so it dismissed the appeal and upheld the original judgment.
The wheat crop has dual properties, being both harvest material and propagation material.
As a propagation material, the production cost and sales price of wheat seeds will be significantly higher than that of commercial grains.
In practice, the production and sales behaviors that infringe upon the new plant variety rights are extremely concealed.
When the people's court makes an infringement judgment, it is of guiding significance to accurately determine whether the accused infringing seeds belong to commercial grains or seeds based on facts such as the expression of intention at the time of sale, the selling price, and the germination rate of the accused infringing variety.
——Selected from the typical cases of judicial protection of intellectual property rights in the seed industry of the people's court
(Reporter Wang Jinhu of this newspaper)