| The seed retention rule is an exemption rule in the Regulations on the Protection of New Varieties of Plants.Farmers obtain the varieties protected by the variety right,it is not considered an infringement to directly preserve the varieties or variety propagation materials for the purpose of planting for their own use in recent years.The seed retention rule is a concrete embodiment of the privilege of retaining seed given to farmers,which aims to realize the balance of interests between variety owners and farmers.To study the seed retention rules in the Regulations on the Protection of New Varieties of Plants and related judicial practice,the existing problems mainly include the narrow scope of seed retention subjects,the lack of separate regulations on seed retention objects,and the vague scope of limited seed retention self-use.When the empirical analysis method is used to analyze the infringement disputes of new plant varieties applying the retention rules,it is found that there are still some problems in the judgment of unclear reasoning in the application of the retention rules,mechanical reproduction of the existing restrictive conditions of the retention rules,and the different application standards of the retention rules in different cases.The reason is that the Regulations on the Protection of New Varieties of Plants do not update the regulations with the agricultural environment;In judicial practice,due to the ambiguity of the retention rules and the professionalism of the retention rules,such as the self-replication of seeds,the reproduction and use of seeds,it is difficult to determine the retention behavior in the infringement dispute of new plant varieties.Therefore,it is of great significance to improve the seed retention rules under the new plant variety protection system for both the variety owners and farmers.Reviewing the legislation and judicial practice of farmer retention rules in the new plant variety protection system,there are two different ways to improve the retention rights to the preservation of plant genetic resources.For example,in India,farmers’ seed retention behavior belongs to a traditional planting habit,and seed retention behavior plays an important role in agricultural production activities,so giving the right to breeders and farmers.According to the policy orientation of encouraging breeding innovation in China,the seed retention right in the new plant variety protection system should be regarded as a farmer privilege,and refer to the specific provisions of seed retention subject,object and number of seed retention rules in European and American,so as to improve the farmers’ seed retention rules in China.To improve the seed retention rules in the protection system of new plant varieties,we should consider the strong protection trend of new plant varieties and the reality of the separation of the three rights of rural land.Firstly,taking into account the actual planting area of farmers,farmers whose planting area is less than "10 times of the average contracted area of local households" shall be regarded as the subject of self-propagation and self-use.Secondly,according to the "Measures for the Validation of Major Crop Varieties" and the actual demand of farmers,rice,wheat,corn,cotton and soybean can be determined the objects of the seed saving rules Finally,as for the restriction conditions of seed retention,it should be clear that "the number of seed retention is limited to the annual seed consumption of farmers",and the rules of the Seed Law and the Regulations on the Protection of New Varieties of Plants should be harmonized.The role of the restriction conditions should be to judge whether the exchange or sale behavior of farmers is the behavior of selling the remaining self-retained seed in the market in good faith.It is not necessary to stick to the sales method or geographical area.In order to maintain the balance of interests between variety rights holders and farmers,and to prevent the adverse effects on breeders caused by the behavior of selling after saving seeds under the separation of the three rights of rural land by means of royalty rules and information filing,It is also suggested that the right to agricultural genetic resources should be established in addition to the Regulations to better protect farmers’ rights and interests,and play a guiding role in the rules,so as to truly realize the purpose of not only valuing the contribution of farmers in preserving precious plant genetic resources and safeguarding their seed saving tradition with farmers’ rights and interests,but also stimulating breeding innovation with the plant variety protection system. |
