People’s High Court of Fujian, Civil Judgment (No. 436 (2010))

December 19, 2010

Summary:

LIN Jinshan brought a case at People's Intermediate Court of Fuzhou (hereinafter referred to as “Intermediate Court” or trial court) against the Institute of Fruit Trees of Fujian Academy of Agriculture Science (“Institute of Fruit Trees”), Lu Xiumin, and Lu Xinkun, demanding a judgment that acknowledges LIN as a co-owner of a plant variety right of “red-fleshed honey pomelo”.

The Institute of Fruit Trees and LU Xiumin did not accept the judgment made by the trial court and appealed to People’s High Court of Fujian (“High Court” or appellate court). The appellate court held that the reasons, facts and legal basis presented by the appellants were not sufficient, and thus dismissed the appealing. When hearing the case, the appellate court made an analysis on how to determine the ownership of a plant variety right.

Facts:

LIN Jinshan discovered that the flesh of a Guanxi honey pomelo in his garden was red. LU Xiumin, an agronomist in the Science and Technology Office of Pinghe County, determined that the red-fleshed honey pomelo resulted from natural variance, and might be used as excellent breeding material, which enabled LIN Jinshan et al. to graft the red-fleshed honey pomelo.

According to the statement of LIN Jinshan, they started grafting in 1998, and succeeded in 2003 when the trees began to bear fruits; they started top-grafting in 1999, and the trees began to bear fruits in 2005 with the flesh of fruits being red just like the seed tree.

On July 18, 2003, the Institute of Fruit Trees submitted an application for a project named “Studies of novel variant line breeding of red-fleshed honey pomelo”, which was granted in August, 2003. Thereafter, the Institute of Fruit Trees conducted various studies necessary for filing an application of new plant varieties, filed an application for a “non-main crop identification of Fujian Province” in the Fujian Non-Main Crop Varieties Identification Committee in September 2005，and obtained the identification. At the same time, the Institute of Fruit Trees applied for and obtained the certification of new plant variety right of “red-fleshed honey pomelo” issued by the Ministry of Agriculture on March 1, 2007, with the Institute of Fruit Trees, LU Xiumin LU, and LU Xinkun as the co-owners of the new plant variety right.

According to the trial court, LIN Jinshan discovered the source of the variant, which could be used to breed the new plant variety of “red-fleshed honey pomelo”, and made important contribution to the subsequent breeding of the new variety; moreover, LIN Jinshan not only discovered the variant but also succeeded in grafting and breeding on the variant, LIN Jinshan successfully bred the variety of “red-fleshed honey pomelo” before the Institute of Fruit Trees was involved in 2003; the labor of LIN Jinshan as a breeder, therefore, should be protected by the law. The trial court  held that LIN Jinshan shall share the new plant variety right of “red-fleshed honey pomelo”.

The Institute of Fruit Trees appealed the judgment of the trial court to the High Court, arguing that LIN Jinshan was not commissioned, under Article 7 of PRC Regulations on Protection of New Varieties of Plants, as the breeder of the plant variety, nor was LIN specified as a co-owner of the variety right in the agreement on joint breading, and nor was LIN Jinshan the entity to perform the project “Studies of new red-fleshed honey pomelo variety breeding”; rather, LIN Jinshan, merely the owner of the seed tree of red-fleshed honey pomelo variant, was not involved in the offspring breeding and did not assist in any other experimental work during the whole studies carried out by the Institute of Fruit Trees. LU Xiumin made supplemental pleading that LIN Jinshan was not involved in the whole course of the new plant variety breeding, and LIN Jinshan did not even have necessary professional knowledge.

LIN Jinshan counter-argued that the appellants were not able to provide any evidence that he was not involved in the offspring breeding, and all of the agreements concerning the breeding of “red-fleshed honey pomelo” listed LIN Jinshan as a member of the project team, a breeder, the person who provided the seedlings, or a shareholder. The 80 Mu test field definitely included the garden of LIN Jinshan, the test data were collected from the garden of LIN Jinshan, and the test fruits were gathered from the garden of LIN Jinshan.

The appellate court discovered that on December 28, 2003, to accelerate the breeding of “red-fleshed honey pomelo”, the Institute of Fruit Trees and the Red Pomelo Science and Technology Demonstration Farm of Pinghe County made an “Agreement on technological cooperation”, in which the “breeder list” listed 8 persons including LU Xiumin, LU Xinkun, LIN Jinshan, and LIN Haiqing et al. In 2005, the “breeder list” column of the “Application for non-main crop variety identification of Fujian Province” filed by the Institute of Fruit Trees listed 11 persons including LU Xiumin, LU Xinkun, LIN Jinshan, and LIN Haiqing et al. The “Certification of Fujian Province Non-Main Crop Variety” issued by the Fujian Non-Main Crop Variety Identification Committee for the “red-fleshed honey pomelo” records that the breeder entity was the Institute of Fruit Trees, and the main breeders were 11 persons including LU Xiumin, LU Xinkun, LIN Jinshan, and LIN Haiqing et al.

Issues:

Whether LIN Jinshan is the joint breeder;

Whether LIN Jinshan shall share the new plant variety right of “red-fleshed

honey pomelo” .

Holding:

Appeal dismissed;

Trial court’s judgment affirmed.

Reasoning:

The appellate court held:

LIN Jinshan discovered the source of the variant that could be used to breed the new plant variety of “red-fleshed honey pomelo”, and thus Lin Jinshan made his share of contribution to the subsequent breeding of the variety of “red-fleshed honey pomelo” as well as the application and eventual procurement of the new plant variety right of “red-fleshed honey pomelo”. After the application of the project named “Studies of novel variant line breeding of red-fleshed honey pomelo” submitted by the Institute of Fruit Trees was granted, LIN Jinshan was listed as one breeder in the “Agreement on Technological Cooperation” signed by the Institute of Fruit Trees and the Red Pomelo Science and Technology Demonstration Farm of Pinghe County. Thereafter, LIN Jinshan was listed as a breeder in the “application for identification of Fujian Province non-main crop varieties” filed by the Institute of Fruit Trees in the Fujian Non-Main Crop Variety Identification Committee. The “Certification of Fujian Province Non-Main Crop Variety” issued by the Committee records that LIN Jinshan is one of the breeders.

It can be seen that during breeding of the variety of “red-fleshed honey pomelo”, the Institute of Fruit Trees consistently treated LIN Jinshan as a joint breeder. Under Article 7.2 of PRC Regulations on Protection of New Varieties of Plants, which provides that “for commissioned breeding or jointly-conducted breeding, the ownership of the variety right shall be agreed upon by the parties with a contract; absent such an event, the variety right shall belong to the entity or person commissioned to conduct or jointly-conduct the breeding”, LIN Jinshan therefore shall be identified as a joint breeder of the new plant variety right of “red-fleshed honey pomelo” .

Due to insufficiency of facts, the statement of the Institute of Fruit Trees and LU Xiumin that LIN Jinshan did not have any necessary knowledge, and was not involved in the breeding of the “red-fleshed honey pomelo” variety is not accepted. The judgment of the trial court that the labor of LIN Jinshan as a breeder should be protected by the law and LIN Jinshan shall share the new plant variety right is based on sufficient fact finding, and thus shall be affirmed.