The Intellectual Property Court of the Supreme People's Court (SPC) recently concluded three connected cases on infringement of new plant variety rights, determining the damages in cases where infringing seeds were inactivated by administrative action.

The judgments confirmed that the production of breeding materials of granted varieties without permission constitutes an infringement on variety rights and that the variety rights holders' claim for damages shall be supported by people's court apart from the liability to take inactivation measures.

Beijing Lantron Seed Co., Ltd. is the variety rights holder of "Yufeng 303" and "Zhongkeyu 505" hybrid corn seeds. The defendants, i.e. three individuals surnamed Wu, Dong and Fu bred 207 mu (equal to 13.8 hectares) of "Yufeng 303", 64 mu and 110 mu of "Zhongkeyu 505" corn seeds respectively in Wuwei, Northwest China's Gansu province, without Beijing Lantron's permission.

In response to a claim of Beijing Lantron, the agricultural comprehensive administrative enforcement department in Wuwei inactivated the matured infringing corn clusters, after which the company claimed for damages against Wu, Dong and Fu for infringement of its new plant variety rights.

The court of first instance concluded that although Wu, Dong and Fu committed infringing acts, the infringement had ceased, and thus dismissed the company's claim.

In the second instance, the SPC held that Wu, Dong and Fu produced the infringing corn seeds without permission and for commercial purposes, which infringed on the variety rights of Beijing Lantron. The SPC found them liable for infringement in accordance with the law. The infringers' liability to take inactivation of the infringing seeds does not affect their liability for damages.

Although the inactivation of the infringing breeding materials can prevent expansion of the rights holder's loss, it cannot eliminate the occurrence of losses. The infringing acts of Wu, Dong and Fu have caused losses to the variety rights holder for which they should bear the liability for damages.

Taking into account the sales price of the involved varieties, the nature and circumstances of the infringing act, and the fact that the infringing seeds had been inactivated, Wu, Dong and Fu were ordered to pay CNY212,000 ($30,811), CNY69,000 and CNY115,000 respectively for damages and reasonable costs arising from Beijing Lantron's remedies.

The judgements of the three cases clarified the relationship of law application between the two types of infringement liabilities, i.e. taking inactivation measures and damages, as well as the judgment rule that the infringers of seed variety rights should still bear the liability for damages even after inactivation of the infringing seeds or their matured crops by adminstrative action. The judgements protected the variety rights holder’s legitimate rights and interests and strengthened judicial protection of plant variety rights.