The Supreme People’s Court has confirmed that a New Zealand company was entitled to a record amount of compensation for the unauthorised plantings and sale of its 'Scilate' apple variety in China. The Court awarded RMB 3.3 million (£319,000) in damages along with an order that the defendant destroy all illegally propagated plant materials.
Background
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| Image from MM Fotovideo via Pexels. |
The commercialisation of the variety has been managed by the New Zealand-based fruits and vegetables grower, ENZAFruit, which is a subsidiary of T&G Global. The variety is marketed under the trade mark Envy® or 爱妃®.
Envy® launched in the Chinese market in late 2023, thanks to a 2018 licensing deal with the Joy Wing Mau fruit company. But in addition to this authorised grower, ENZAFruit learned of unauthorised production and sales.
The Case
China amended its Seed Law in 2021 to strengthen its plant variety protection system. The new law entered into force on 1 March 2022. Importantly for this case, the amendments extended the scope of protection beyond the propagation materials to include harvested materials (such as fruits and cut flowers) in line with the 1991 Act of the UPOV Convention, and also increased the amount of punitive damages available in cases of intentional infringement to RMB 5 million. Since then, several PVR infringement cases have resulted in punitive damages (such as the Danyu 405 case).
The infringement allegations in this case hinged on the expanded scope of protection to include the Envy® apples themselves. The litigation began in September 2022 and the claim was initially heard by the Lanzhou Intermediate People’s Court of Gansu Province, which made a finding of plant variety infringement in November 2023. Unlike in many other jurisdictions, Chinese courts often accept DNA evidence in PVR infringement proceedings, as the court did in this case. After this ruling, plant IP lawyers heard reports that the court had granted the largest award for a civil claim for PVR infringement. However, the exact amount was not publicly available.
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| This Kat enjoyed some Spanish-grown Envy® apples while writing this post. Photo by Jocelyn Bosse. |
Many breeding companies will be excited about this ruling, given the importance of the Chinese market and past concerns about unauthorised propagation of plant varieties in China (see, for example, discussion in the IPKat here).
The ruling is another signal that China is taking plant varieties very seriously. China released its 14th Five-Year Plan in 2021, which included measures to promote its innovation system in the agricultural sector, including improving agricultural varieties and fostering an internationally competitive seed industry. China has continued to dominate the UPOV statistics in terms of the number of PVR applications received and titles issued, as well as being the top country of residence for PVR title holders.
Despite the significant developments in the last ten years, however, China is still not a member of UPOV 1991. It seems that the main barrier is the broader farmer's privilege and research exemption, which remained unchanged by the amended Seed Law in 2021. This will continue to be a pressure point, but given this latest judgment, breeding companies are probably happy enough with the scope of protection in China for now.
Reviewed by Jocelyn Bosse
on
Wednesday, March 19, 2025
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