Chapter V Examination and Approval of Variety Rights
Article 33 If one of the following circumstances occurs during the preliminary examination, substantive examination, reexamination and invalidation declaration procedure, the party or any other interested party may request to withdraw from it:
(1) being a close relative of a party or his agent;
(2) having a direct stake in the application for variety rights or variety rights;
(3) Having other relationships with the parties or their agents, which may affect the fair review and trial.
The avoidance of examiners is decided by the Variety Protection Office, and the avoidance of reviewers is decided by the director of the Plant Variety Review Committee.
Article 34 Where an application for a plant variety right includes more than two new varieties, the breed protection office shall require the applicant to file a divisional application. If the applicant has not made a division amendment to his application within a specified time limit or has not answered the application within the time limit, he shall be deemed to have withdrawn his application.
The applicant may, according to the divisional application requested by the Variety Protection Office, retain the original filing date; if it has priority, it may retain the priority date. However, the scope of the existing content of the original application document must not be exceeded.
Divisional applications shall be handled in accordance with the provisions of the Regulations and these Rules.
The request for a divisional application shall state the application number and date of filing of the original application. If the original application has priority, a copy of the original application must be submitted.
Article 35 The Variety Protection Office shall conduct a preliminary review of the following contents of the application for variety rights:
(1) whether it complies with Article 27 of the Regulations;
(b) Whether the selected approximate species is appropriate; whether the parents of the applied species or other sources of reproductive materials are publicly available.
The species protection office shall notify the applicant of the review opinions. If the breed protection office is in doubt, it may request the applicant to state its opinions or make corrections within a specified period of time; if the applicant fails to reply, it shall be deemed as having withdrawn the application. After the applicant has stated its opinions or made corrections, if the Variety Protection Office believes that it still does not meet the requirements, it shall reject the application.
Article 36 With the exception of the application documents for variety rights, any person who submits to the Varietal Protection Office the materials related to the application for the variety rights shall be deemed not to have been brought under any of the following circumstances:
(1) Failing to use the prescribed format or filling out the requirements;
(b) Failing to submit the certification materials as required.
If the parties submit materials in person, the handling personnel shall return the defects directly after explaining the defects in the materials; if submitted through the post office, the species protection office shall return the inspection opinions deemed not to have been submitted together with the raw materials; if the mailing address is unclear, the announcement shall be adopted. return.
Article 37 From the date of the application for a variety right to the date of granting the variety right, any person may have the right to a variety that does not comply with Article 8, 13 to 18 of the Regulations, and Article 4 of these Rules. Apply for an objection to the Variety Protection Office and provide relevant evidence and explanations. If no relevant evidence is provided, the breed protection office will not accept it.
Article 38 Without the approval of the Variety Protection Office, the applicant may not modify the following contents of the application documents before granting the variety rights:
(1) The name of the application variety, the parent of the application variety or the name and source of the other propagation materials and the breeding method of the application variety;
(2) The earliest sales time of the application;
(3) The specificity, consistency, and stability of the applications.
The revised part of the application documents for variety rights shall be submitted in the form of a replacement page, except for the modification or addition and deletion of individual words.
Article 39 The Variety Protection Office shall be responsible for substantive examination of the application for variety rights and notify the applicant of the review opinions. The species protection office may request the applicant to state its opinions or make corrections within a specified period of time according to the needs of the review. If the applicant does not reply within the time limit, it shall be deemed as withdrawing the application.
Article 40 In accordance with the provisions of the Regulations and these Rules, the application for a variety right shall be rejected after it has been substantively examined:
(1) failing to comply with one of the provisions of Articles 8 and 13 to 17 of the Regulations;
(2) Belonging to the provisions of Article 4 of these Rules;
(3) Failing to meet the naming requirements, the applicant did not comply with the requirements of the Variety Protection Office;
(4) After the applicant has stated its opinions or made corrections, the Variety Protection Office does not believe that it still meets the requirements.
Article 41 After the Variety Protection Office issues a notice to handle the formalities for granting variety rights, the applicant shall handle relevant procedures and pay the first annual fee within 2 months from the date of receipt of the notification. The Ministry of Agriculture grants variety rights, issues variety rights certificates, and makes public announcements. Variety rights come into effect on the date of the announcement of authorization.
If the application is not completed at the expiry date, it shall be deemed as a waiver of the right to obtain the variety rights.
Article 42 The Committee for Review of New Varieties of Plants of the Ministry of Agriculture shall be responsible for the review of cases of rejection of applications for the right to reject variety rights, cases of declaration of invalidation of variety rights and cases of authorized variety rebranding. Specific regulations will be formulated separately by the Ministry of Agriculture.
Chapter VI: Submission, Delivery and Duration of Documents
Article 43 All kinds of documents submitted in accordance with the provisions of the "Regulations" and these Rules shall be in Chinese, and shall adopt scientific and technical terms and specifications prescribed by the State. Where foreigner names, place names and scientific and technical terms do not have a unified Chinese translation, the original text shall be marked.
If the various documents and supporting documents submitted in accordance with the provisions of the "Regulations" and these Rules are foreign, they shall be accompanied by a Chinese translation; if they are not attached, they shall be deemed as not having submitted the supporting documents.
Article 44 The various documents submitted by the parties to the Variety Protection Office shall be printed or printed. The writings shall be black and neat and clear. The text part of the application document should be written horizontally, and the paper can only be used on one side.
Article 45 The various documents submitted by the parties and other formalities for handling shall be signed or sealed by the applicant, the variety rights holder, other interested parties or their representatives; where the agency is entrusted, the agency shall stamp the seals. Requests for changes in the names, titles, nationalities, addresses, names of agencies, and names of applicants and breeder applicants and variety rights holders shall be made to the Variety Protection Office for alteration of the description of the items, together with the reasons for the change. Evidence.
Article 46 When the parties submit various materials, they may submit the materials directly or by mail. When sending mail, a registered letter should be used, parcels must not be used, and a single letter should only contain relevant materials for the same application. In case of mailing, the postmark date on which the mail is sent is the filing date. If the date of the postmark sent on the envelope is not clear, the date of receipt by the Variety Protection Office shall be the date of filing unless the party can provide proof.
The various documents of the Variety Protection Office may be sent to the parties by mail, directly or through an announcement. If the party entrusts the agency, the documents shall be sent to the agency; if the agency is not entrusted, the documents shall be sent to the address and addressee of the addressee or the first signatory or representative. If the party refuses to receive the document, the document is deemed to have been delivered.
All kinds of documents mailed by the Variety Protection Office shall be regarded as the date on which the documents were received by the parties upon the expiration of 15 days from the date of issuance of the documents.
In accordance with the provisions of the documents that should be sent directly, the date of delivery shall be the date of service. If the address of the document is unclear and cannot be mailed, it can be served to the parties by way of an announcement. Two months from the date of the announcement, the document is deemed to have been delivered.
Article 47 The first day of various time limits specified in the "Regulations" and these Rules shall not be counted in the time limit. If the time limit is calculated in terms of years or months, the corresponding date of the last month shall be the expiry date; if the month does not have a corresponding date, the last day of the month shall be the expiry date. If the expiration date is a statutory holiday, the first working day after the holiday is the expiration date.
Article 48 If the party delays the “Regulations†or the time limit specified by the Variety Protection Office due to force majeure, resulting in the loss of its rights, within 2 months from the date of the elimination of the obstacle, the time limit expires at the latest. Within two years from the date, the reasons for the restoration of their rights can be explained to the Variety Protection Office with the supporting documents attached.
If the party delays the time limit specified in the “Regulations†or these Regulations or the period specified by the Variety Protection Office for legitimate reasons, resulting in the loss of its rights, it may explain the reasons to the Variety Protection Office within 2 months from the date of receipt of the notice and request to restore it. right.
If the party requests the extension of the designated period of the Variety Protection Office, it shall explain the reasons to the Variety Protection Office and go through relevant formalities before the expiration of the time limit.
The provisions of paragraphs 1 and 2 of this Article do not apply to Article 14, Article 23, Article 32, Article 2, Article 3, Article 34, Article 37, Article 2 of the Regulations. The period specified in the paragraph.
Article 49. In addition to the provisions of Article 22 of the Regulations, where there is priority in the application date mentioned in the Regulations, it refers to the priority date.
Chapter 7 Fees and Gazette
Article 50 When applying for variety rights and handling other formalities, it shall pay application fees, examination fees, and annual fees to the Ministry of Agriculture in accordance with relevant state regulations.
Article 51 The fees stipulated in the "Regulations" and these Rules may be paid directly or through the post office or bank remittance.
If remittances are made through a post office or bank, the name of the variety shall be indicated. At the same time, a copy of the remittance voucher shall be faxed or mailed to the Variety Protection Office, and the application number or breeder number of the fee, the name of the applicant or the breeder’s right holder shall be stated. Name, expense name.
If remittances are made through the post office or bank, the remittance day is the payment date.
Article 52 In accordance with the provisions of Article 24 of the Regulations, an applicant may pay an application fee at the same time as he applies for a variety right application, but the application fee shall be paid within one month from the date of the application, and the application period will not expire. If paid or not paid, it shall be deemed to be withdrawn.
Article 53 After an application for a variety right that passes the preliminary examination, the applicant shall pay the examination fee within the prescribed time limit in accordance with the notice of the Varietal Protection Office. Those who fail to pay or have not paid up the time limit shall be deemed to withdraw their applications.
Article 54 The applicant shall pay the annual fee for the first year of granting the variety right before obtaining the variety right certificate. The future annual fee shall be prepaid within one month before the expiration of the previous one year.
Article 55 Where the variety right holder fails to pay the annual fee after the first year of granting the variety right, or the amount paid is insufficient, the variety protection office shall notify the applicant within 6 months from the date when the annual fee should be paid. If payment is not paid, the variety right will terminate as of the expiration of the period for which the annual fee is due to be paid.
Article 56 The Variety Protection Office shall regularly publish the Bulletin for the Protection of New Varieties of Plants, and publicize the relevant contents of the Variety Rights.
Chapter VIII Supplementary Provisions
Article 57: The act of counterfeiting a licensed variety referred to in Articles 40 and 41 of the Regulations refers to one of the following circumstances:
(1) Printing or using falsified variety right certificates, variety right titles, variety rights numbers, or other variety rights application marks and variety rights marks;
(2) Application marks or other types of application rights for printing or use of variety rights that have been rejected, deemed withdrawn or withdrawn;
(3) Variety rights certificates, variety rights numbers or other variety rights marks for the printing or use of variety rights that have been terminated or declared invalid;
(4) producing or selling the varieties marked in items (1), (2) and (3) of this article;
(5) varieties that produce or sell applications for impersonation rights or authorized varieties;
(6) Other behaviors that are sufficient to enable others to mistakenly apply for non-variety rights or unauthorised varieties as a variety right application or authorized variety.
Article 58 The administrative department of agriculture shall, in accordance with the provisions of Article 41 of the Regulations, deal with the propagation of plant material that has been seized or detained within one month.
Article 59 If a party has filed a lawsuit in a people's court due to a dispute over the right to apply for a variety or variety rights, and the people's court has accepted it, it may request the Variety Protection Office to suspend the relevant procedures.
To apply for suspension of the relevant procedures in accordance with the provisions of the preceding paragraph, an application shall be submitted to the Variety Protection Office and a copy of the relevant acceptance documents of the People's Court shall be attached.
After the judgment rendered by the people’s court has taken effect, the parties shall request the Variety Protection Office to resume the relevant procedures. Within one year from the date of suspension of the request, if the dispute concerning the right to apply for a variety or the ownership of a variety right is not settled and the relevant procedure needs to be suspended, the requester shall request an extension of suspension within that period. If no extension is requested at the expiry date, the Variety Protection Office may resume the relevant procedures on its own.
Article 60 The case file of an application for a variety right that has been deemed to have been withdrawn, rejected and voluntarily withdrawn shall not be kept after two years from the date of the expiration of the application for the right to that variety.
The variety right case file that has been declared invalid shall not be kept after three years from the date of the expiration of the variety right since the day when the variety right was declared invalid.
Article 61 These Rules shall come into force on January 1, 2008. The Regulations for the Implementation of the Regulations of the People's Republic of China on the Protection of New Varieties of Plants (Agriculture Section) issued by the Ministry of Agriculture on June 16, 1999 was repealed at the same time.
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