For the correct handling of infringement dispute case right new plant species, according to the "law of the people's Republic of general principles of civil law", "PRC Civil Procedure Law" and other relevant provisions, judicial experience and combined with the actual situation of new plant variety right infringement dispute case, provisions of several issues concerning the specific application of the law are as follows:
The first new plant variety right all people (hereinafter referred to breed right person) or interested party considers that the new plant variety right has been infringed, may bring a lawsuit to the people's court according to law.
Interested parties referred to in the preceding paragraph, including the implementation of new varieties of plants the licensee of the license contract, the variety right of property rights legal heir etc..
Exclusive licensing contract Licensee may bring a lawsuit to the people's court prosecution alone; mutual exclusive licensing contract licensee can breed right person, also can be in breed right person not to prosecute, their own suits; common licensing contract licensee expressly authorized by breed right person, can bring litigation.
Article second without the variety right owner permission for commercial purpose breeding material production or sales of the authorized variety, propagation materials or for commercial purpose authorized varieties of repeated use in the production of another species, the people's court shall be deemed as the rights to new plant varieties.
The allegedly infringing material characteristics, characteristics and the authorized varieties characteristics, the same characteristics, or characteristics, characteristics of different because of non genetic variation caused by the people's court shall generally be identified, the accused infringement belongs to the propagation materials produced or sold for commercial purpose authorized varieties.
The accused infringer repeat for parents and other parental breeding breeding materials with separately authorized varieties, breeding material the people's court shall generally be identified belonging to the business purpose of the propagation materials of the authorized variety repeatedly used in the production of other variety.
Third special issues of the new plant variety right infringement dispute cases involving the need for identification, identification authentication institutions, determined in consultation by both parties have the qualification of people identification; consultation fails, by identification mechanism, designated by the people's court has the qualification of people identification.
Identification authentication institution, not the provisions of the preceding paragraph who, by professional institutions, has the corresponding level detection technology of varieties of professional identification.
Article fourth for the new plant variety right infringement dispute cases involving special issues can take the field observation and measurement and genetic fingerprint detection method for identification of.
The identification of the conclusions adopted the provisions of the preceding paragraph method is made, the people's court shall cross examination, finds its probative force.
Article fifth the variety right owner or an interested party to the people's Court of new plant variety right infringement lawsuit, at the same time in advance to stop violations of the new plant variety right behavior or preservation of the evidence requested by the people's court shall examine, can first make a ruling.
The people's court to take evidence preservation measures, can according to the specific circumstances of the case, invite the relevant professional and technical personnel in accordance with the corresponding technical specifications for assistance in taking evidence.
Sixth People's court to adjudicate disputes the right of new plant variety, should be in accordance with the provisions of the general principles of the civil law 134th, combined with the specific circumstances of the case, ruling the infringer to assume stop violations, such as compensation for loss of civil liability.
The people's court may, according to the request of the infringed party, according to the infringed due to the infringement by the loss or the infringer profits to determine the amount of compensation for infringement. The infringee demands in accordance with the new plant variety licensing fees to determine the amount of compensation, the people's court may licensing according to the factors of new varieties of plants species, time and scope, with reference to the new varieties of the plant licensing fees reasonable to determine the amount of compensation.
In accordance with the provisions of the preceding paragraph is difficult to determine the amount of compensation, the people's court can consider the nature, duration and consequence of tort, the new plant variety licensing fee, new plant variety licensing types, time, scope and infringement investigation, reasonable expenses paid to stop infringement and other factors to determine the amount of compensation to 500000 yuan the following.
Seventh infringement and tort per capita money deducted agreed to tort infringer the, the people's court shall permit. The infringed or the infringer did not agree to discount deductible, the people's court in accordance with the request of the parties, to order the infringer to tort as elimination of activity so that it can not be used as breeding materials processing.
Infringing material is in the growth period or destroy the infringing material will result in significant adverse consequences, the people's court may not adopt the method of ordered the destruction of the infringing material, but the provisions of laws, administrative rules and regulations provide otherwise except.
The eighth article by agricultural or forestry planting industry person, rural contracting households receive reproductive material others entrusted for reproductive infringement of variety rights, on behalf of the fan is not know propagation material violation of the variety right and a description of the principal, shall not be liable for compensation.
