1、 The current situation of intellectual property protection in China's seed industry

Firstly, from the perspective of protection system, China has basically established a legal system for the protection of new plant varieties with Chinese characteristics. A legal protection system has been formed, with Article 123 of the Civil Code as the positioning, Chapter 4 of the Seed Law as the protection foundation, and the Special Regulations on the Protection of New Plant Varieties as the protection mainline. At the same time, two detailed rules for the implementation of the regulations and three judicial interpretations of the Supreme People's Court as auxiliary axes.

Secondly, from the perspective of strategy and protection awareness, strategic enhancement and awareness enhancement. The number of applications and authorizations for the protection of new plant species rights has been increasing year by year, ranking first among UPOV members for several consecutive years. With the development of commercial breeding, the protection subject has shifted from scientific research institutions to seed enterprises. The main types of protected crops are field crops, with corn, rice, and wheat accounting for the top three, and self selected varieties accounting for nearly 94%, ensuring national food security from the source.

Once again, from the perspective of protection pattern and intensity, China has formed a "five in one" and "high protection, strict protection, large protection, and fast protection" pattern with legislative, administrative, judicial, technological, and social assistance. With the revision of the Seed Law in 2021, the protection of plant new variety rights has greatly increased, and the amount of infringement compensation has exceeded 5 million yuan, forming a full chain and all-round protection of plant new variety rights.

Fourthly, from the perspective of protection trends, gradually aligning with international standards, becoming increasingly internationalized, benchmarking against international standards, and looking at the world. On the one hand, a substantial derivative variety system has been established to create a path for joining the UPOV Convention 1991 text as soon as possible; On the other hand, we should strengthen the scientific and technological innovation and self-reliance of varieties to solve the "choke" problem. Some excellent hybrid rice varieties will gradually go abroad with the "the Belt and Road Initiative" to benefit the world.

2、 The origin of the problem

In recent years, the number of disputes over the infringement of new plant species rights has been increasing, which is all related to the increased protection and punishment of intellectual property rights in the seed industry. According to statistics, in cases of infringement of plant new variety rights disputes, the winning rate of variety rights holders or interested parties is 90%. However, in many cases of intellectual property protection in the seed industry, there are also some problems such as excessive rights protection, radical means, and inappropriate methods. Among them, the most prominent situation is through "trap evidence collection", initiating civil litigation and claiming rights. Let's take a case study as the starting point and analyze it.

Company A, Wang, will fabricate information about the commodity grain harvested from corn seeds purchased at a high price by a pastoral company in Shandong (hereinafter referred to as the pastoral company), and inform grain seller Company B. Although Company B does not operate the "Ha Mou" commodity grain, Wang informed that as long as Company B issues the so-called "traceable materials" according to its requirements and accepts telephone verification according to the predetermined language, it can help Company B sell the commodity grain that was not originally received by "Ha Mou" according to Ha Mou's commodity grain.

B company believed this and contacted D cooperative as a grower, while C distribution office as a seed and fertilizer distributor. According to Wang's request, they issued a set of "Ha" seeds for sale by C distribution office. D cooperative planted "Ha" seeds, and B company purchased the "Ha" commodity grain harvested by D cooperative and sold it to the so-called "traceable materials" of the animal husbandry company. Afterwards, the leaders of B, C, and D companies accepted a traceable telephone investigation conducted by A company staff member Yang, who disguised himself as an inspector.

Company A has filed a lawsuit with the court based on the above-mentioned "traceable materials" and the telephone recordings of the responsible persons of B, C, and D and Yang as evidence, claiming that B, C, and D constitute joint infringement and demanding joint and several compensation liability. The first instance court ruled [2] that it was presumed that the C distribution office had committed infringement and held them liable for infringement. The C distribution office appealed against the first instance judgment. In the second trial, the C distribution office submitted evidence to the court, including Wang's command of the person in charge of Company B to contact the two responsible persons of C and D to provide so-called "traceable materials" and WeChat conversation records verified by phone calls, as well as all accounts of the person in charge of the C distribution office, proving that the C distribution office had never sold "Ha" seeds, and the so-called "traceable materials" issued were entirely to help Company B obtain the fictitious commodity grain trading opportunity between Company A and Animal Husbandry Company (Company A admitted in the second trial that Animal Husbandry Company did not actually exist and was fabricated). However, the second instance court upheld the first instance judgment.

In this case, there is no direct evidence to prove that C distribution office has operated "Ha" seeds, D cooperative has grown "Ha" seed corn, and B company has sold "Ha" commodity grain. 1、 The second instance court, based solely on the "traceable materials" and telephone recordings obtained by Company A through trap evidence, directly determined that the C distribution office had committed infringement and assumed corresponding responsibility, which is debatable.

3、 Trap evidence collection and its impact

Faced with the hidden nature of intellectual property infringement, a large number of "trap based evidence collection" situations have emerged in judicial practice. The above case illustrates that trap evidence collection has spread to cases of intellectual property protection in the seed industry.

（1） About Trap Evidence Collection

Trap evidence collection is a relatively special situation in intellectual property civil litigation, and special treatment should be given in the rules of evidence. It is related to whether the facts to be proven are established, and stricter review responsibilities should be imposed on this situation. Specific issues should be analyzed in detail. In judicial practice, trap evidence collection methods can be divided into "opportunity providing type" and "criminal intent inducing type" [4]. The evidence collection method stipulated in Article 7, Paragraph 1 of the "Several Provisions of the Supreme People's Court on Evidence in Intellectual Property Civil Litigation" (hereinafter referred to as the "Provisions on Intellectual Property Evidence") is the "opportunity provision type" evidence collection. This provision aims to indicate that the physical objects, bills, etc. obtained by the right holder, on their own or on behalf of an ordinary purchaser, from the accused infringer to discover or prove intellectual property infringement can serve as evidence for suing the accused infringer for infringement. Its purpose is without unjustifiability. Based on the concealment of infringement, the right holder, in order to better obtain evidence of infringement, carries out evidence collection in the name of an ordinary buyer on their own or on behalf of others, under the premise of the existence of infringement opportunities and without harming social public interests and the legitimate rights and interests of others. This is in line with the judicial policy of strengthening intellectual property protection, and the evidence formed can be used as evidence for the right holder to sue for infringement. The evidence collection method stipulated in Article 7, Paragraph 2 of the Regulations on Intellectual Property Evidence is "criminal intent induced" evidence collection. The infringement situations under this provision need to be treated differently, and based on the different subjects that induce the intention to commit the crime, it is decided whether to include the behavior induced by others in the scope of joint infringement. This provision provides that "evidence formed by the accused infringer's infringement of intellectual property based on the actions of others" can be used as evidence for the right holder to sue for their infringement. The right holder can use this evidence to sue the accused infringer and a third party for joint infringement. At the same time, this provision has a proviso that "the accused infringer only engages in intellectual property infringement based on the evidence collection behavior of the right holder" is excluded. In this regard, it can be understood that actions induced solely by the right holder should be excluded from infringement, and the evidence obtained from this should not have evidentiary capacity.

Based on the above case, the author believes that the evidence formed by the rights holder's claim falls into the category of evidence collection in the trap of "criminal intent inducement". Briefly describe it.

Firstly, the rights holder has no apparent or substantive connection with the three accused infringers. B. The joint infringers of C and D and the right holder A have no relationship with each other before the right holder obtains evidence. The varieties involved in the case have not been acquired, planted, or operated, and there is even no substantial business relationship between them.

Secondly, the occurrence of this case was solely based on the inducement of the rights holder. Company B was originally a grain purchaser and never engaged in seed trading. Under the influence of Company A's agent Wang, they facilitated grain trade transactions. Based on Wang's instructions, Company C's seed distribution office was designated as the operator of Ha's seeds, and D's professional cooperative was designated as the purchaser and planter of Ha's seeds. Company B also established itself as the purchaser of Li's commodity grain from D's cooperative. From the entire process of the incident, Company B acted as a matchmaker, and Wang was the initiator of the trap for evidence collection. However, there were no accused infringing objects, namely Ha's seed physical object, throughout the entire process. In other words, the C seed distribution office did not operate Ha seeds, the D cooperative did not plant Ha seeds, and the B trader did not purchase Ha commodity grain. The three parties fabricated the entire fact of operation, planting, and acquisition with the aim of gaining the trust of Company A, the rights holder, and ultimately achieving B company's trade.

Once again, the facts to be proven in this case only include false bills and well-designed transcripts, lacking the accused infringing property. According to the proviso to Article 7, Paragraph 2 of the Intellectual Property Regulations, the evidence collection behavior of right holder A should exclude infringement behavior. Without sufficient evidence support, the evidence formed by its induced evidence collection cannot be used as the basis for determining the facts of the case.

（2） The adverse effects of trap evidence collection

The above cases not only fail to have a positive effect on the protection of intellectual property rights in the seed industry, but also bring many negative impacts and even harm.

Firstly, collecting evidence through traps can easily lead to a large number of imitative cases, resulting in unnecessary litigation burden and wastage of judicial resources.

Secondly, the act of collecting evidence through traps is not conducive to the healthy development of the seed industry market order, affects normal commercial transactions, and reduces or reduces the normal trust, communication, and cooperation opportunities between seed industry enterprises.

Once again, trap evidence collection exacerbates market uncertainty, making it more difficult for businesses to make business decisions.

Finally, trap evidence collection deviates from the original intention of protecting intellectual property rights in the seed industry. The original intention and purpose of strengthening the protection of intellectual property rights in the seed industry is to promote technological innovation and encourage primitive breeding. However, trap based evidence collection, especially criminal intent induced evidence collection, attempts to fabricate facts and false images of infringement, not only disrupt the normal judicial trial order, but also greatly reduce the efficiency of judicial trials, and even give rise to malicious rights protection companies, allowing true infringers to escape the law.

4、 The Path and Suggestions for Cracking Traps and Obtaining Evidence

Firstly, strengthen legal protection and deny the evidentiary effect of trap evidence collection in accordance with the law

The provision in Article 7, Paragraph 2 of the Intellectual Property Regulations negates the effectiveness of trap evidence collection. This provision has been widely applied in patent infringement cases and has formed some typical cases. The author believes that the clause in this proviso should be activated and its application rate in disputes over plant new variety rights should be improved. Only by decisively applying the proviso clause of Article 7 (2) of the Intellectual Property Regulations in the judicial protection of intellectual property rights in the seed industry can we effectively prevent the situation of using traps for evidence collection and fabricating so-called infringement facts from escalating.

Secondly, strict examination of the sources of evidence on which the presumption of infringement is based

Presumption is a method commonly used by judges to determine the facts of a case when the parties are unable to submit direct evidence to prove the facts of the case. The evidence obtained through trap collection in seed industry intellectual property cases often has formal authenticity, but the rationality of the evidence and the legitimacy of the source are often flawed. Therefore, judges should strictly examine the sources of evidence on which the presumed facts of the case are based, not only to examine the authenticity of the evidence, but also to examine its rationality and whether the sources are legitimate. For example, in the case mentioned in this article, C sales office issued a sales invoice of over 300000 yuan to D cooperative. From the perspective of authenticity, this invoice was indeed stamped with the official seal of C sales office. However, the transaction of over 300000 yuan did not have any transfer records, which is obviously unreasonable. If the judges can further examine the reasonableness of the facts proven by the evidence, they will not determine the fictitious facts of Company A.

Thirdly, fully protect the rights of the parties involved and attach great importance to the defense and rebuttal evidence raised by the accused infringer against the evidence collected in the trap

The intellectual property rights of the seed industry belong to a new field and new business format. Based on the particularity of infringement cases of new plant varieties, in judicial practice, it is recommended that judges abandon the traditional thinking of "who is the plaintiff, who is reasonable". Fully protect the rights of the parties involved, carefully listen and review the defense reasons and rebuttal evidence raised by the accused infringer, and combine common sense and trial experience to determine whether it is a trap for evidence collection and whether the evidentiary power of the evidence obtained from it is recognized.

Fourthly, improve and strengthen supervision and error correction mechanisms

In order to effectively prevent the misuse or abuse of judicial power, it is recommended to establish an effective supervision mechanism for the entire process of the case. For example, the mutual supervision among members of the collegial panel, the supervision of the court over the trial of cases in this court, and the supervision of the superior court over the subordinate court should be independent and not invalidated by colleagues, departments, or courts. Subsequently, during the supervision process, errors are discovered and corrected in a timely manner to ensure fairness and justice shine in every judicial case.

5、 Conclusion

In the context of fully strengthening the protection of intellectual property rights in the seed industry, we advocate for standardized and reasonable evidence collection, protect rights in accordance with the law, be wary of excessive and trap based evidence collection, and oppose any attempt to obtain undue benefits through the pretext of "difficult rights protection" at all costs. In the situation where it is difficult for rights holders to provide evidence and protect their rights, it is advisable to consider timely transferring and allocating the burden of proof to examine the formation and effectiveness of evidence, and further realize the reference application of inverted burden of proof in seed industry intellectual property protection cases.

References and comments (slide down to view)

[1] On March 17, 2024, Tao Kaiyuan, Vice President of the Supreme People's Court, delivered a speech at the China Seed Conference
[2] Civil Judgment of Harbin Intermediate People's Court in Heilongjiang Province (2022) Hei 01 Zhi Min Chu No. 25
[3] Supreme People's Court (2023) Supreme Law Zhi Min Zhong No. 1087 Civil Judgment
[4] Lin Guanghai, Li Jian, Wu Rong: Understanding and Application of Several Provisions of the Supreme People's Court on Evidence in Civil Litigation of Intellectual Property Rights.