Research On The Identification Of Infringement Of New Varieties Of Plants

With the continuous development of society, economic changing rapidly, knowledge ismore important for individuals and enterprises.Intellectual property has become a mainstay enterprise remain invincible, and provides astrong backing for the development of enterprises. So, In order to obtain greater benefits,Intellectual property infringement cases showed linear upward trend.All countries pay moreattention to the infringement of intellectual property rights and efforts to crack down oninfringement of intellectual property rights has been enhanced. The new plant varietiesinfringement cases as a new type of intellectual property infringement cases, food as thesurvival of the country, governments are increasing the degree of attention. As a largeagricultural country, how to strengthen the protection of new plant varieties and the researchof breeders, encourage breeders to increase innovation, improve the ability of innovation,promote the rapid and stable development of China’s agricultural economy should pay moreattention to the government. Our law has no clear provisions for the standard of new plantvarieties right infringement and the district courts hearing the case don’t have a uniformstandard. For new plant variety rights infringement behavior can not be subjected to scathingsanctions. So the identification standard of new varieties of plants infringement has a veryactive role for the protection of breeders’ rights. This paper starting from a case of intellectualproperty disputes, raises the question of identification of new varieties of plants infringementcases in China and analyzes and discusses the related problems which from the judicialperspective on infringement.This paper mainly discussed from four aspects.The first part is mainly through the introduction of new varieties of plants in cases ofinfringement(Beijing LIAN Seed Co. v. Gaotai Dakang companies about new plant varietyright infringement case).According to the focus of dispute between both parties, a detailedanalysis of the case of plant new varieties of infringement related problems from whether isbreed right person, whether it constitutes infringement, whether the results can be used asevidence, whether there is a legal basis is advanced.The second part mainly discusses problems of the new plant variety right infringementstatus, characteristics and the focus of the judicial trial. Through the development of thenumber of new plant variety right infringement cases to show the development process of new plant varieties right infringement, Descripting the new plant variety right infringement statusof our country and courts in judicial practice due the lack of experience to not mature. Finally,setbacks meeting from the trial practice of our court illustrate controversy in the trial practiceof our country court.The third part mainly introduces the characteristics of new varieties of plants in Chinainfringement. Then discusses the characteristics of trial infringement cases about newvarieties of plants in China,which discusses mainly from the infringement of the time, subject,form, distribution, infringe upon the interests as well as taking of evidence, Providing a cluefor the identification of the new plant variety right infringement.The fourth part is discussed from the two aspects of the new plant variety rightinfringement type and elements. According to the “People’s Republic of China on theprotection of new varieties of plants “and “Some provisions of the Supreme People’s Courton the trial of new plant variety right infringement disputes on the concrete application of lawproblem” describe the types of new varieties of plants and constitutive elements of tort ofnew varieties of plants, which provides effective scale for the identification of new varietiesof plants tort and convenient conditions for the court of new plant variety right infringementcase.The fifth part focuses on the identification standard of infringement of new varieties ofplants, which are discussed in detail mainly from the new plant variety rights, the scope ofprotection of new varieties of plants, tort evidence identification and so on, especially detailedanalysises and compares with the evidence cognizance of DUS testing method and DNAmolecular marker technology of two kinds of identification technology. Author analysises theadvantages and disadvantages of two kinds of identification technology, and provides theauthor’s suggestions and comments about how to make full use of two kinds of identificationtechnology.The sixth part focuses on restrictions on the rights of people are described, mainlyapplying in farmer exemption, research exemption, mandatory disclaimer, exhaustion ofrights principle and the principle of priority and in the trial court in judicial practiceapplication. The author thinks that although some restrictive provisions are not the laws of ourcountry, but from the needs of China’s national conditions and social development point ofview, we should appropriate limit the rights of related rights of new varieties of plants.