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No.6 of Model Cases Published by the Supreme People's Court Regarding Judicial Protection of Intellectual Property Rights in the Seed Industry by People's Courts Published by the Supreme People's Court (First Batch): Jiangsu Gaoke Seed Technology Co., Ltd. v. Qin Yonghong (dispute over infringement of new plant variety rights)
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最高人民法院发布10起人民法院种业知识产权司法保护典型案例（第一批）之六：江苏省高科种业科技有限公司诉秦永宏侵害植物新品种权纠纷案
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【法宝引证码】
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| No.6 of Model Cases Published by the Supreme People's Court Regarding Judicial Protection of Intellectual Property Rights in the Seed Industry by People's Courts Published by the Supreme People's Court (First Batch): Jiangsu Gaoke Seed Technology Co., Ltd. v. Qin Yonghong (dispute over infringement of new plant variety rights) | | 最高人民法院发布10起人民法院种业知识产权司法保护典型案例（第一批）之六：江苏省高科种业科技有限公司诉秦永宏侵害植物新品种权纠纷案 |
| Second instance: No. 407 [2019], a final civil judgment on IP of the Supreme People's Court | | 二审：最高人民法院（2019）最高法知民终407号 |
| First instance: No. 1453 [2018], a first instance civil judgment of the Intermediate People's Court of Nanjing City, Jiangsu Province | | 一审：江苏省南京市中级人民法院（2018）苏01民初1453号 |
| [Basic Facts] Jiangsu Gaoke Seed Technology Co., Ltd. (hereinafter referred to as "Gaoke Company") was the exclusive licensee of the new rice variety "Nanjing 9108" and held the right to take any legal action in its own name against entities and individuals that infringed its new plant variety rights in respect of the rice "Nanjing 9108" liable. Gaoke Company was of the opinion that Qin Yonghong infringed its exclusive license by producing and selling the seed of the rice "Nanjing 9108" without permission, and thus filed an action, requesting the court to order Qin Yonghong to cease infringement and pay 500,000 yuan in compensation for economic losses. Qin Yonghong argued that his use of the seed retained by him to produce commodity grains fell under the circumstance of "propagation by farmers for their own use" under the law, and did not constitute an infringement of the new variety rights in respect of the rice "Nanjing 9108." | | 【基本案情】 江苏省高科种业科技有限公司（以下简称高科种业公司）为水稻新品种“南粳9108”的独占实施许可人，有权以自己名义对侵害水稻“南粳9108”植物新品种权的单位和个人追究法律责任。高科种业公司认为秦永宏未经许可擅自生产、销售“南粳9108”水稻种子的行为侵害了其独占实施的被许可权，诉请判令秦永宏停止侵权并赔偿经济损失50万元。秦永宏辩称，其利用自留种子生产商品粮的行为属于法律规定的“农民自繁自用”情形，不构成对“南粳9108”水稻新品种权的侵害。 |
| [Judgment] The Intermediate People's Court of Nanjing City, Jiangsu Province held at first instance that through land transfer, Qin Yonghong obtained rights to agricultural operations on 973.2 mu of rural land assigned and was a new type of agricultural production business (commonly known as a large grain grower), instead of a farmer who signed a rural land contract under the household contract responsibility system. If such business entity uses a protected variety in respect of which another person has variety rights for its production and operating activities, it shall be licensed by the right holder of such variety, otherwise it commits infringement. Therefore, Qin Yonghong was ordered to cease infringement and pay compensation for economic losses. The Supreme People's Court held at second instance that Qin Yonghong conducted agricultural operations on land covering an area up to more than 900 mu, on which his act of farming and harvesting grains to earn profits was no longer just for suiting his personal and family life needs, but for commercial purposes. In terms of the area of land on which Qin Yonghong had rights to agricultural operations, scale of farming, grain output, and use of harvested grains, he operated far beyond the practice that ordinary individual farmers contracted rural land for farming on a household basis according to the household contract responsibility system. The court of first instance had a factual basis and legal basis in determining him as a new type of agricultural production and operation entity. If Qin Yonghong were allowed to produce and retain the propagating material required to sow the land covering the above area without paying any fee to the right holder of the variety, significant economic losses would have been undoubtedly caused to the right holders of the variety involved in the case including Gaoke Company, and their lawful rights and interests would have been injured. Since Qin Yonghong's act of farming the land of 973.2 mu on which he obtained the right to agricultural operations by subcontract, producing the seed of the rice "Nanjing 9108" without permission, and retaining the seed for sowing the next year did not fall under the circumstance of "propagation by farmers for their own use" under the law, he should obtain the consent of the right holders of the variety involved in the case and pay a fee to the right holders or licensed enterprise or individual. Given that existing evidence was sufficient to prove Qin Yonghong's act of production, rather than his act of selling infringing seed, the amount of compensation as determined in the original judgment was adjusted as appropriate. | | 【裁判结果】 江苏省南京市中级人民法院一审认为，秦永宏通过土地流转，获得经转包的土地经营权达973.2亩，已不是以家庭联产承包责任制的形式签订农村土地承包合同的农民，而是一种新型的农业生产经营主体（俗称种粮大户）。该类经营主体将他人享有品种权的授权品种用于生产经营活动的，应当取得品种权人的许可，否则构成侵权。故判令秦永宏停止侵权并赔偿经济损失。最高人民法院二审认为，秦永宏经营的土地面积高达900余亩，其在该面积土地上进行耕种、收获粮食后售出以赚取收益的行为，不再仅仅是为了满足其个人和家庭生活的需要，而是具有商业目的。从秦永宏享有经营权的土地面积、种植规模、粮食产量以及收获粮食的用途来看，其已远远超出普通农民个人以家庭为单位、依照家庭联产承包责任制承包土地来进行种植的范畴，原审法院将其认定为一种新型农业生产经营主体，具有事实依据和法律依据。若允许秦永宏播种上述面积土地所使用的繁殖材料均由自己生产、自己留种而无需向品种权人支付任何费用，无疑会给包括高科种业公司在内的涉案品种权利人造成重大经济损失，损害其合法权益。由于秦永宏在其通过转包获得经营权的973.2亩土地上进行耕种，未经许可生产“南粳9108”水稻种子并留作第二年播种使用的行为，不属于法律规定的“农民自繁自用”情形，应当取得涉案品种权利人的同意，并向品种权人或经授权的企业或个人支付费用。因现有证据仅能证明秦永宏存在生产行为，不能证明其实施了销售侵权种子的行为，故对原审判决赔偿数额予以酌情调整。 |
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