Research On Judicial Protection Of Plant Variety Rights In China

Plant varieties as an important means of production of agricultural development and play an important role in people's life.The cultivation of fine plant species not only promote the development of agriculture in China,but also play an important link to improve the core competitiveness.Breeders spent several years of hard work to cultivate high-quality crop varieties,and this new varieties must also comply with requirements of the consistency,novelty and specificity to grant of plant variety protection certificate.Plant variety rights as an important intellectual property in the field of agriculture,is a kind of legal recognition of breeder's intellectual innovation activities.In recent years,with the increase in the number of varieties for applications and authorization,the behavior of the infringement of right is also increasing year by year,especially for field crops such as corn,wheat and other crops.The situation has become increasingly complex,not only plant varieties of unauthorized production and sales,also with the name of infringing the plant variety right to identify and fake authorization of plant varieties.The legal protection of plant varieties in China starts late,and the legal norms are not perfect.China promulgated the "Regulations on the protection of new varieties of plants",which is the highest effect on protection of new plant varieties and regulations.With the rapid development of agricultural science and technology,the relevant laws and regulations are difficult to adapt to the new situation and new requirements in the seed industry,which leads to the judge at the trial of the relevant cases at a loss,especially for the principle to define the scope of protection of plant varieties right and the right of prior use and the principle of exhaustion of rights.Owing to the legal provisions is not clearly defined,the judges are generally based on the experience of the trial or the relevant provisions of other intellectual property law to inquisition of disputes over the right to plant new products,so that the courts around the same case may make different judgments."Regulations on the Protection of New Varieties of Plants" is a lack of effective convergence between the patent law and the criminal law so that the court can not directly apply the relevant provisions to investigate the responsibility of the infringer.Therefore,this paper suggests that we should strengthen the system design,refine the relevant laws and regulations,including the expansion of plant variety rights protection and the introduction of the right to use first and the exhaustion of the system.At the same time,we should coordinate the relationship with other regulations so that we can give more perfect and systematic legal support in the judicial practice.On the other hand,due to the particularity of the plant species,the identification of the blood nature between the accused and the protected varieties is an important link to determine whether the infringement constitutes.At present,the methods of forensic identification mainly include field planting DUS test and DNA fingerprint detection.The current judicial identification system is lack of unified standards and professional accreditation bodies,and the limitations of the method for identification of plant species also increased the difficulty of the trial.Therefore it is becoming more and more important to improve the forensic identification system of new plant varieties.At the same time,the dispute over the infringement of the right to plant new varieties is a civil case,and the relevant evidence must be submitted to the court by the obligee.In reality,because of the concealment of the place of tort and the characteristics of seasonal influence.It is difficult for obligee to testify the subjective psychological state of the infringer and the damage caused by the infringing.The claimant receives the damage from the infringer too low and therefore can not effectively safeguard the interests of the variety rights.In this connection,for the common infringement behavior,we should increase the intensity of punishment,make clear the specific calculation method of the amount of damages and use the principle of presumption of fault in order to distribute the burden of proof reasonably to the party who has the ability to provide evidence.At the same time,it is recommended to establish an effective system of punitive damages for the serious infringement of plant variety rights to increase the protection of the rights of the species.