Why is it so difficult to protect the original innovation of the seed industry after repeated "legal infringements"
[It is necessary to strengthen the protection of intellectual property rights in the seed industry at the legal system level, increase the enforcement of illegal and infringement, and create an environment that encourages innovation and fair competition, in order to completely improve the innovation and development ecology of the seed industry in my country, and promote the prosperity of the industry. ]
Produced by Deep Eye Studio
Written by: Our reporter Yu Huiyou
Planning: Lin Lijun
415,800 yuan!
This is an infringement compensation payment received by Hunan Yuanchuang Super Rice Technology Co., Ltd. (hereinafter referred to as Yuanchuang Company).
More than two years ago, Yuan Chuang Company discovered that the super rice variety it had commissioned to produce seeds in Sanming City, Fujian Province had been infringed and misappropriated.
Under the circumstances that the compensation and liability are "unclear", Yuan Chuang Company filed a lawsuit against Fujian Tianli Seed Co., Ltd. and Anhui Quanyin Hi-Tech Seed Co., Ltd., which were involved in the infringement, to court.
In the first instance, the defendant refused to accept the appeal, and the Supreme People's Court mediated in the second instance...Finally, more than a year later, the lawsuit ended with compensation and litigation costs totaling 415,800 yuan.
"This is the first time we have sued for infringement." Yang Yasheng, chairman of Yuan Chuang Company, told the reporter of Science and Technology Daily, his tone was rather helpless, and the reason was very bitter: it was really unbearable for various "fancy" infringements and various twists and turns to protect rights.
"It is necessary to rely on scientific and technological innovation to fight the seed industry's turnaround. It is imperative to strengthen the motivation of scientific and technological innovation and strengthen the protection of intellectual property rights!" Ning Gaoning, member of the Standing Committee of the CPPCC National Committee and Chairman of Sinochem Group, said at the just-concluded National Two Sessions. It is necessary to strengthen the protection of intellectual property rights in the seed industry at the legal system level, increase the enforcement of violations of laws and infringements, and create an environment that encourages innovation and fair competition in order to completely improve the innovation and development ecology of China's seed industry and promote the prosperity of the industry."
Ning Gaoning's words are in the heart of many breeders who are committed to original innovation.
"If imitation innovation and modified breeding are always protected, everyone's enthusiasm for original innovation will be frustrated." said Deng Qiyun, director of the State Key Laboratory of Hybrid Rice.
Heart-stuck!
Original varieties encounter "fancy" cottage
"From 2011 to 2019, incomplete statistics, we have invested about 1.4 billion yuan in scientific research on variety breeding. Up to now, we have developed a series of high-quality, high-yield and disease-resistant hybrid rice varieties. However, we have developed a series of high-quality, high-yield and disease-resistant hybrid rice varieties. , The 78 texts of the current Plant Variety Protection Regulations (China’s current Plant Variety Protection Regulations follow the 1978 text of the International Union for the Protection of Plant Varieties Convention), which only protect varieties, and do not protect germplasm resources, innovative traits, and genetic products. Original Sexual achievements are easy to be infringed. Companies invest a lot of manpower, financial resources, time, and energy in breeding research and development. In the end, even our varieties have not yet come out, they have been “legally infringed” by others. In the long run, corporate R&D investment and R&D personnel innovation Passion will be greatly reduced." said Yang Yuanzhu, vice president of Longping Hi-Tech and chief expert of rice.
Longping Hi-Tech is a leading enterprise in my country's seed industry, with fruitful scientific research results, but it has also become a "key target" for plagiarism and infringement.
Yang Yuanzhu talked about the "Xianglong 628S", a high-quality short-stalk-resistant sterile line developed by the company for more than ten years.
"We recommend it to participate in the fertility identification test of the two-line sterile line in Hunan Province. During the experiment, it was illegally crossed and improved by others. As a result, our varieties had not yet entered the market, and the improved varieties came out, and they were still legal. Yes." Yang Yuanzhu was a little bit dumbfounded about it.
This is not alone.
The reporter learned that the infringement in my country's seed industry is more serious, and the infringement method is also very "fancy": some directly use other popular varieties to exchange their own varieties or the name of the approved varieties; some use unapproved varieties to put the approval number; Some varieties are still in the process of review, or when they are about to be promoted in a rational and standardized way, it is discovered that the resources have been stolen and become "new varieties" waiting to be listed on the market...
"These actions not only affect the source of experts' innovation and R&D motivation, but are extremely detrimental to the industrialization of the seed industry and orderly competition in the market. They will affect the implementation of the country's modern seed industry strategy and the precise transformation of the results of the seed industry." Guangdong Xianmei Seed Ye Yuanlin, chairman of Miao Co., Ltd. (hereinafter referred to as Xianmei Company), said.
He also talked about a strange phenomenon in the market: usually, all kinds of regular inspections and sampling are mainly aimed at more standardized enterprises.
Some small-scale enterprises are prone to missed inspections, which indirectly contributes to the aggravation of infringement.
"Speaking of which, my country organizes and conducts variety certification in a variety of ways. There are many new varieties that pass the review every year, but how many truly original varieties are among them?" Ye Yuanlin asked rhetorically.
Distressed!
Copycat infringement "reasonably confident"
Xianmei Company and the Rice Research Institute of Guangdong Academy of Agricultural Sciences jointly launched a new high-quality indica rice product in Guangdong—Simiao Rice "19 Fragrant".
But just after they completed the trial last year and passed the review, they discovered that various "relatives" of "19 Fragrant" appeared on the market in the neighboring province, and an infringing unit not only refused to admit the infringement, but also planned to "fight against it."
"Formally listed or regulated companies, the original technology is usually strong, but this increases the probability of their infringement, is another sense of the "vulnerable group." Ye Yuanlin said with a wry smile.
Why is it difficult to stop seed industry infringement?
A reporter from Science and Technology Daily found in an investigation that experts generally believe that the legal text referred to in the protection of intellectual property rights in the seed industry in my country is too low.
Chen Hong, director of the Plant New Variety Testing Division of the Science and Technology Development Center of the Ministry of Agriculture and Rural Affairs, introduced that on April 23, 1999, the Chinese government joined the International Union for the Protection of New Varieties of Plants (UPOV), following the 1978 text of the UPOV Convention.
The lack of a substantive derivative breed system and insufficient protection of original breeding innovations have resulted in the proliferation of imitative and modified breeding behaviors.
"To a certain extent, it really hit the enthusiasm of scientific researchers for original innovation and the enthusiasm of enterprises to invest in research and development. The industry even spread the saying that "whoever engages in original innovation is taken advantage of."
Take Deng Qiyun’s team’s major original achievement Y58S parent as an example. Others only need to modify some non-main characters of Y58S slightly, or use it as the parent to breed new varieties. These "derivative varieties" are in the 78 text, the same as the original innovative varieties. , All belong to the legal category.
But how difficult is original innovation?
Still taking Y58S as an example, Deng Qiyun introduced that he began to work on hybridization in 1989. This scientific research achievement did not achieve genetic stability until 2001. It was only approved in 2005, and it took 16 years.
And this is on the premise that his scientific research progresses smoothly.
However, it takes only three or four years to “derive” the Y58S.
"The original varieties that breeders have developed after more than ten or even twenty years are'legally infringed', which can easily discourage the original innovation enthusiasm." Wu Jun, deputy director of the State Key Laboratory of Hybrid Rice, said he was worried. .
"In the past five years, our average annual R&D investment accounted for about 15% of our main business. With large R&D investment, our own results have not had time to realize profit in the market, and other people's imitation products have entered the market first. For companies that are committed to original innovation, the blow is great." Yang Yasheng said.
"The breeding industry has a long scientific research cycle and high risks. It is difficult to research, but it is easy to stolen the results. The seed industry is like an'open-air factory'. Except for auxiliary work that can be done in the laboratory, the selection of varieties will eventually have to be done. In the field. The protection of intellectual property rights in the seed industry is much more difficult than in the industrial field. It requires the state to protect it with coercive force, restrict it with legal rigidity, compel derivative varieties to quote original varieties, and give necessary recognition and return of benefits." Said Yuan Guobao, chairman of the Hubei Technology Market Association.
“my country’s rice breeding technology is the world’s leading technology, and there is no “stuck neck” problem. However, if the original innovation results are always plagiarized, it will get stuck on the “neck” of the original innovation passion of scientific researchers. Over time, the variety is “how messy” and the seed industry. It is difficult to solve the problem of weak industry. We must establish a'national consciousness' to protect intellectual property rights. Protecting intellectual property rights is to protect innovation, and it is to protect the interests of the public." Deng Qiyun said.
Strenuous!
Original rights protection makes people "heart tired"
In our country’s seed industry, it is difficult to defend rights as it is easy to infringe.
"In recent years, we have often been infringed. Last year, in Hainan and Fujian, we caught a lot of companies producing our high-quality varieties. But embarrassingly, it is too difficult to defend rights." Yang Yuanzhu said.
According to Changjiang Hua from the Risk Control and Legal Department of Longping Hi-Tech, there are difficulties in investigating, obtaining evidence, claiming compensation, and high cost of rights protection in seed industry infringement rights.
"The infringing and breeding activities of varieties are concealed, and the sales of infringing varieties are also concealed. Agricultural law enforcement agencies will not easily initiate investigation procedures and take measures without a clear inspection report. If a claim is made, the amount of compensation is usually higher after the case is litigated. In most cases, it is not enough to offset the cost of rights protection. Even if a judgment is made in some cases, if the infringer lacks the ability to perform, the civil compensation judgment will not be enforced."
This is also the reason why Yuan Chuang Company has repeatedly suffered infringements but rarely appeals.
During the investigation, the reporter also learned that the current infringement cases discovered are far lower than those that have not been discovered.
"Most infringements are discovered by'incidental encounter.'" Deng Qiyun said.
"my country has established a punitive compensation mechanism, but according to the Seed Law and the New Variety Protection Regulations, compensation is only 1-3 times the amount of infringement. We believe that the actual infringements found are far lower than the actual infringements. Therefore, If one is found, they must be severely punished, and they must be announced to the public in a timely manner, causing the infringers to pay a heavy price.
In addition, Chen Hong said that the narrow scope of the existing new variety protection system is also one of the reasons why it is difficult to defend rights.
According to the Seed Law and the New Variety Protection Regulations, the production and sale of propagating materials of an authorized variety without the permission of the right holder, and the repeated use of propagating materials of another variety are defined as infringements.
It is produced in the seed base and sold in the market terminal.
In addition to these two links, there are a large number of links that are prone to rights protection and law enforcement, such as the storage, transportation, processing, import and export of seeds, and the use of authorized varieties to produce harvested materials and directly processed products, which are not included in the scope of infringement. , Resulting in the lack of smooth channels for rights protection and law enforcement.
"The conventional wheat, japonica rice, and soybeans in the warehouse can be used as seeds or grains. Are they propagation materials or harvest materials? It is not easy to define them according to existing laws and regulations. But these must be clear." Chen Hong Say.
The difficulty of safeguarding rights also involves market law enforcement and security issues at the implementation level.
The law enforcement of the protection of new varieties in our country has two approaches: administrative law enforcement and judicial protection.
Administrative law enforcement is mainly implemented by the administrative department.
But in recent years, the aspect of seed administrative law enforcement has been relatively weakened in the process of institutional reform.
For example, according to the Seed Law, agricultural administrative departments at or above the county level can carry out administrative enforcement of variety rights.
But the existing problem is that many county-level law enforcement agencies do not know much about the protection of new varieties.
Chen Hong once served as deputy county head of a county in Qinghai Province, but he has investigated this county and several surrounding counties, and overall he is not quite sure about the protection of new varieties.
"In this case, how can the right holder protect their rights after their rights are infringed? This also shows that the implementation effect of the seed law on the administrative enforcement of variety rights from'administrative departments above the provincial level' to'administrative departments above the county level' is not ideal "Chen Hong said.
He believes that the Supreme Court has set up intellectual property courts, Beijing, Shanghai, Guangzhou and other cities have set up intellectual property courts to centralize jurisdiction over variety rights infringement cases from a judicial point of view, and to increase investigation and punishment is an effective method that is worth learning from administrative law enforcement management departments. .
Scream!
Strengthen the protection of intellectual property rights in the seed industry
"From a national perspective, we call for and support the publication of the 91 texts on the protection of new plant varieties. To encourage originality, we must first respect originality, use laws and regulations to regulate the incentive policies and systems for intellectual property sharing, and encourage scientific researchers to concentrate on research. Fundamentally solve the problem." said Tang Wenbang, dean of the College of Agriculture of Hunan Agricultural University.
And this is almost the common voice of breeding experts and seed companies dedicated to original innovation.
At present, 35 units of the National Rice Variety Major Scientific Research Joint Research Group have signed an agreement to take the lead in piloting the Substantial Derived Variety (EDV) system.
The reporter learned that the most important difference between the 91 version and the current 78 version is the "substantial derivative system."
In the 91 text, if the original results of others are used to imitate or modify, as long as the main characteristics are consistent with the original variety, it is recognized as a "substantial derived variety", you can apply for variety rights, but you cannot proceed without the authorization of the owner of the original variety rights. Commercial development.
As a result, the varieties with "small modifications and minor changes" can no longer legally and aggressively infringe on the original innovative varieties.
Compared with the opinions of experts calling for the publication of the 91 version, Beijing Kaiyue Law Firm, an attorney who has been specializing in the protection of new plant varieties and non-litigation activities for 18 years, Liang Shunwei believes that the 78 version has room for improvement.
"The protection of new plant varieties rights, I think, should be strengthened on'giving full play to the functions of agricultural administrative law enforcement agencies in the protection of new plant varieties'. This is also a defect in my country's current legal system." Liang Shunwei said.
He introduced that the current system for the protection of new plant varieties, regardless of the seed law or the regulations on the protection of new plant varieties, requires the administrative law enforcement department to "only when the new plant variety harms the public interest can the administrative law enforcement department impose administrative penalties." ".
Otherwise, mediation can only be carried out based on the application of the right holder or the application of interest.
Therefore, in the protection of new plant varieties, the administrative law enforcement agencies are basically in a situation where there are not many active actions.
Many administrative departments believe that seed industry infringement does not harm the public interest, but only violates the private rights of the right holder.
Therefore, the right holder basically uses the "civil protection" method to find evidence to go to the court to litigate, or according to the law, play the role of "whistleblower" in rights protection.
However, in Liang Shunwei's view, the infringement of the original seed industry results is not only the damage to the "private rights" of the right holder.
"If innovation is not protected, it will affect the enthusiasm for innovation. This seems to only affect the right holders, but in fact, from the perspective of social effects, it harms the interests of the industry and the country. my country's administrative law enforcement system is complete. Especially after the reform, all regions including Comprehensive agricultural law enforcement departments have been formed at the county and city levels. If they are given administrative powers for the protection of new varieties, the law enforcement will be much stronger.” Liang Shunwei said.
He suggested that the existing 78 texts increase law enforcement and judicial efforts, and by granting administrative powers, further urge the administrative departments to take an active role in the protection of new plant varieties, and form an administrative protection system for new plant varieties with Chinese characteristics.
Combined with judicial protection and the self-protection of right holders, this problem should be solved better.
"We call on the agricultural authorities to increase support for seed enterprises' variety rights protection and anti-counterfeiting work, and provide seed enterprises with financial support in terms of rights protection costs for successful rights protection cases." Jiang Hua said.
At the same time, he also called on agricultural law enforcement agencies to strengthen the staffing of front-line law enforcement teams to improve their professional business standards and law enforcement capabilities.
"Of course, seed companies must also take the main responsibility for protecting their own legal variety rights, enhance the awareness of intellectual property rights protection, and strengthen the protection of variety rights, including strengthening the management of variety intellectual property rights, and setting up rights protection and anti-counterfeiting teams."