In brief
In early June 2026, China's Supreme People's Court issued Guidelines for Ascertaining Technical Facts in Cases Involving New Plant Varieties (人民法院审理植物新品种案件技术事实查明工作指引) ("Guidelines"). The Guidelines constitute the first dedicated instrument in China to specifically address the ascertainment of technical facts in litigation concerning plant variety rights. They establish a diversified framework for technical fact-finding and provide systematic, practical, and harmonised guidance to enhance consistency in adjudication.
Background
Against the backdrop of a surge in plant variety disputes, the Guidelines address longstanding challenges in ascertaining technical facts, including the lack of clear operational guidance, inconsistent standards of review, and the absence of targeted, integrated rules.
The Guidelines set out a structured framework of 40 articles across eight chapters, aiming to enhance consistency, transparency, and efficiency in technical fact-finding, and to provide more coherent guidance for courts handling increasingly complex scientific issues.
Highlight of the Guidelines
Diversified approaches for ascertaining technical facts
To deal with technical issues such as variety identity, parentage, and derivation of plant varieties in new plant variety disputes, the Guidelines adopt a diversified multi-participant framework for fact-finding. In addition to court-commissioned appraisal, and expert opinions obtained by parties, the framework expressly allows for testimony from persons with specialized knowledge, the involvement of technical investigation officers and/or expert lay assessors, and technical consultation. This reflects a more flexible and practice-oriented approach to resolving highly technical questions in PVR litigation.
Furthermore, Article 24 of the Guidelines specifically addresses expert opinions commissioned by parties themselves, including those obtained through the engagement of professional institutions or individuals. It clarifies that such opinions will be assessed by reference to the general standards applicable to judicial appraisal opinions, while placing particular emphasis on the following factors:
- Whether the tested samples are properly linked to the alleged infringement
- Whether the source of the reference samples is clear and reliable
- Whether the testing institutions and personnel possess the requisite qualifications, expertise and experience
- Whether the testing methods are consistent with recognised practices or industry norms in the relevant field
- Whether the testing procedures are scientifically sound and properly conducted
- Whether the report is complete and free from inconsistencies
- Whether the testing institutions or personnel are independent and impartial, including the absence of any conflict of interest, misconduct history, or other circumstances that may undermine their objectivity.
From a practical perspective, this provision is highly significant for plant variety rights holders. In enforcement practice, technical reports are often obtained on an ex parte basis prior to the commencement of proceedings and are often challenged by alleged infringers on the grounds that they are unilaterally obtained and lack procedural neutrality.
Against this backdrop, the Guidelines send a clear signal that such objections will not be determinative per se. Instead, the admissibility and evidentiary weight of these reports will depend on whether they are prepared in a manner that aligns with the court's expectations as outlined above.
Accordingly, rights holders should proactively structure their testing strategy with these criteria in mind from the outset. A report that demonstrates robust sample traceability, methodological reliability, scientific testing method and institutional independence is more likely to be accepted directly and accorded substantial evidentiary weight, notwithstanding anticipated challenges from the opposing party. This approach can enhance enforcement efficiency by reducing the likelihood of court-ordered re-testing or supplemental appraisals, thereby controlling costs and streamlining the overall litigation strategy.
Establishment of a scientific testing framework
The Guidelines also introduce a structured and increasingly sophisticated framework for molecular testing in plant variety disputes, clarifying the selection and evaluation of testing methods, addressing evidentiary gaps in the absence of applicable standards, and reinforcing a hierarchy of evidence. Together, these provisions signal a more rigorous and science-based approach to technical fact-finding, with important implications for how rights holders design and present testing evidence in enforcement and litigation.
Specifically, Article 10 of the Guidelines emphasises that the selection of molecular marker testing methods should comply with the fundamental principles applicable to plant variety identification. It identifies three applicable methods — Simple Sequence Repeat (SSR), Single Nucleotide Polymorphism (SNP), and Multiple Nucleotide Polymorphism (MNP). In this context, it is notable that other emerging testing approaches, such as whole genome sequencing (WGS), are not expressly addressed under the current framework. This suggests that the recognition of such methods will depend on their acceptance within the relevant technical community and the court's assessment on a case-by-case basis. Plant variety rights holders should therefore continue to monitor regulatory developments in this area, as further guidance or formal recognition of additional technologies may evolve over time.
Article 19 of the Guidelines addresses situations where no national or industry standards have been established for molecular marker detection (such as gene fingerprinting) for a particular plant variety. In such cases, the People's Court is required to conduct a holistic assessment of the available evidence when reviewing expert opinions, with a particular focus on factors including the representativeness and quantity of primers used, whether the construction of the gene fingerprinting complies with scientific principles, and whether the methodology applied is sufficient to distinguish varieties in a scientifically accurate and reliable manner. In practice, this is particularly relevant to genus such as Vaccinium and Rosa, where standardized molecular testing frameworks remain under development. The emphasis placed under Article 19 suggests that courts will scrutinize the robustness of the underlying methodology, including whether the number of loci amplified by the selected primers is sufficient and whether primer design adequately captures the genetic diversity of the target population. In light of this, rights holders should carefully consider the scientific rigor of their testing approach, including ensuring that primer selection provides representative and comprehensive genomic coverage so as to minimize the risk of inaccurate or inconclusive findings in enforcement proceedings.
In addition, the Guidelines reaffirm a hierarchy of evidentiary value by providing that, where discrepancies arise, field observation results should prevail over molecular testing, reflecting the principle that plant variety protection is primarily based on observable characteristics rather than purely genetic data. The framework further supports analyses of parentage and derivation, enabling courts to more accurately determine whether an allegedly infringing variety originates from a protected variety.
Strengthened reliability through sample and procedural controls
Apart from methodological guidance, the Guidelines emphasise the importance of ensuring the reliability of technical fact-finding through strict controls over samples and procedural safeguards. They require that test samples be authentic, traceable, and directly related to the alleged infringing conduct, and that appropriate preservation and cultivation methods be adopted to maintain their integrity.
The selection of reference samples is also standardised. Article 11 provides a clear hierarchy for the selection of reference samples in plant variety rights disputes, addressing a common point of contention between parties as to whether the comparison sample genuinely corresponds to the authorised variety at issue. As a starting point, the Guidelines give priority to standard samples maintained by the relevant administrative authority, particularly those preserved by the authority responsible for granting plant variety rights. Where such samples are unavailable, the court permits reliance on samples held by other official institutions, including testing bodies involved at the grant stage. Only in the absence of such official sources may the rights holder provide its own propagating material or genetic fingerprint, subject to a requirement to substantiate its authenticity to the court, including by demonstrating the sample's source, chain of custody, preservation process, consistency with the authorised variety's characteristics, and the absence of material alteration such as transplanting, crown replacement or other changes.
For plant variety rights holders, this highlights the importance of carefully selecting and documenting the source of reference samples at an early stage, in line with the priority framework under Article 11, to reduce evidentiary challenges and strengthen the credibility of technical testing.
Furthermore, the Guidelines strengthen procedural review by mandating cross-examination of appraisal and expert opinions, verification of underlying materials, and comprehensive scrutiny of the qualifications, methods, and conclusions of appraisal institutions. These measures ensure that technical findings are not only scientifically sound but also procedurally credible, thereby enhancing the evidentiary weight of appraisal conclusions and the overall reliability of judicial outcomes.
Conclusion
Overall, the Guidelines mark an important development in clarifying how technical facts are determined in new plant variety litigation in China. They introduce a comprehensive and structured framework covering key issues such as diversified fact-finding mechanisms, scientific testing methods, sample authenticity, reference sample selection and the review of expert and appraisal opinions. By promoting consistent standards, procedural safeguards, and the coordinated use of technical expertise, the Guidelines strengthen courts' ability to address complex scientific issues and enhance the reliability of judicial outcomes.
For plant variety rights holders, the clearer evidentiary expectations make it easier to plan evidence collection, engage experts, and structure enforcement or defence strategies with greater confidence. By reducing uncertainty around admissible methods and sample requirements, the framework helps minimise the risk of re testing and technical disputes. More broadly, the Guidelines support more consistent court decisions and administrative enforcement, providing stronger and more reliable institutional support for protecting and defending plant variety rights in the seed industry.
Notably, the Guidelines largely reflect and consolidate existing judicial practice on key issues and cannot be expected to resolve all technical questions that may arise in plant variety disputes. As scientific methodologies continue to evolve and enforcement scenarios become increasingly complex, further clarification and refinement will likely be required.
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For further information and to discuss what the Guidelines may mean to you, please get in touch with your usual Baker McKenzie contact.
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Jacqueline Wang, Associate, FenXun, have co-authored this legal update. FenXun established a joint operation office with Baker McKenzie in China as Baker McKenzie FenXun, which was approved by the Shanghai Justice Bureau in 2015.
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