The plaintiff, in this case, Syngenta Seeds (Beijing) Co., Ltd. (Syngenta for short), owns the right to a new variety of pepper named "Marceau".

In 2017, the plaintiff Syngenta discovered in the market that the defendant Beijing Boshou Seed Co., Ltd. (abbreviated as Boshou) was selling the sweet pepper product "Shenghong" (referred to as the infringing variety involved). After that, Syngenta purchased from the defendant Shouguang Ludingshuo Agricultural Technology Co., Ltd. (referred to as Ludingshuo) the seedlings of the infringing varieties produced by the Boshou Company through notarization, and also obtained the infringement from the Boshou Company. The seeds, seedlings and "Marceau" seeds and seedlings of the seeds mentioned above and seedlings were tested for DNA (SSR molecular marker detection).

In September 2017, Syngenta sued Boshou and Ludingshuo to the Beijing Intellectual Property Court and held that the infringing variety involved in the case was the same as the "Marceau" that Syngenta enjoyed the right to new plant varieties. The company's production and sales activities with Ludingshuo Company constituted an infringement of its new plant variety rights, and requested the court to order the two defendants to stop the infringement according to law, and jointly compensate for economic losses and the costs of investigating and stopping the infringement, totaling RMB 3 million.

The defendant, Boshou, believed that it also owned an authorized sweet pepper variety named "PP1201" (the name was once used as "Shenghong"), and the variety rights were acquired on April 23, 2018.

The infringing variety involved is the protected "PP1201" variety, which did not infringe on Syngenta's new plant variety rights.

The court organized DNA identification on the involved infringing varieties, "Marceau" and "PP1201", to ascertain the facts. The results showed that the number of different sites in the pairwise comparison of the three varieties was 0, similar to the variety. In July 2020, the plaintiff applied for withdrawal on the grounds of needing to organize evidence again.

On August 18, 2020, the plaintiff filed a lawsuit again and believed that the DNA identification results of the court's preliminary organization could not rule out the infringement of the rights of the new plant varieties by the actions of the two defendants, and applied for the court to organize a DUS identification to further ascertain the facts.

In this case, based on DNA testing, DUS testing should be used to further find out whether the three species involved are identical. Even if the DUS test shows that the three varieties are identical, it cannot deny the legal facts of Boshou's selection of varieties, and Boshou has not promoted and sold "PP1201" on a large scale, and has no intention to infringe on the variety rights involved, which does not constitute infringement. Lvdingshuo's planting and selling of the defendant's demonstration varieties did not constitute infringement.

Defendant Lvdingshuo Company: The defendant Lvdingshuo Company submitted a written statement expressing its waiver of participating in the court hearing on the same day and recognized the defense opinions of Boshou Company.

The case has not been pronounced in court and is being further tried.  

Source: chinaipmagazine.com