Guiding Case 92

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Category: SinoInsights™

Image: Andrew Schmidt, Corn On The Cob (Publicdomainpictures.net)

Guiding Case No. 92 provides guidance on an important issue frequently encountered in cases involving infringement of rights to new plant varieties: how to determine whether two plants are of the same variety, when the related DNA fingerprinting test result cannot provide a clear answer.  According to this Guiding Case, when this happens, the allegedly infringing party, i.e., the defendant, has the burden to prove that the allegedly infringing plant is different from the plant for which variety rights have been granted.  How did the court justify the shifting of the burden to the defendant?Read more

Plants

Date:
Category: SinoInsights™

Image: George Hodan, Agriculture (Publicdomainpictures.net)

The Supreme People’s Court of China released Guiding Case Nos. 92, 100, and 160 to clarify fundamental issues related to the protection of rights to new plant varieties that were left unanswered by the country’s legislation and judicial interpretations.  Yet, have these three Guiding Cases essentially lost their significance, considering that their guiding principles, as analyzed in this article, have already been incorporated into the Supreme People’s Court’s latest judicial interpretation related to new plant varieties?  Dr. Mei Gechlik explains why the answer is negative and discusses related implications. Read more