Lusheng wins largest Chinese Vegetative PVR Infringement Compensation

Lusheng Press Editor

24 Jan 2024

Lusheng Law Firm has helped its client ENZAFruit New Zealand International Limited, a New Zealand-based operator of exotic fruits and vegetables, win a landmark Plant Variety Rights (PVR) infringement civil case in the Lanzhou Intermediate Court of Gansu Province. 

This landmark Court of First Instance victory in Chinese IP litigation awarded ENZAFruit its full claim for significant damages. The Plant Variety in this case is one of New Zealand’s leading apple varieties, known as Scilate and branded as Envy™ which is also legitimately grown in China with ENZAFruit’s partner, JOY WING MAU.

The success of this complex case was achieved with Lusheng’s specialist IP lawyers overseeing all the investigation, evidence collection and analysis during the saplings planting and fruit harvesting seasons, with the court hearing and litigation process taking 10 months from filing in September 2022.

Lusheng’s IP litigation team ensured all evidence was expertly collected from several orchard sites in China to capture the necessary propagation materials and conduct DNA analysis to be presented as evidence in court. This was achieved against a combination of difficult economic and logistical challenges arising from the global Covid pandemic.

This successful PVR infringement case is a significant court award since China’s revised Seed Law was implemented in March 2022. Previously, the Seed Law did not protect any harvested fruit but the new regulations now extend to both the fruit and the propagation material of any protected variety.

Jerry Zhao, Lusheng Senior Associate, Disputes Resolution, one of the leading attorneys managing the case, commented: “With rising demand for quality fruit and vegetables, especially within China and across the Asia-Pacific region, protecting the IP of agriculture businesses responsible for importing or exporting valuable patented food produce is increasingly important.

“The plant breeding process can be extremely complex, requiring a significant amount of time, financial investment and human resource to create any new plant, fruit or vegetable variety. The newly implemented Seed Law allows us to protect client’s PVR rights more comprehensively, and importantly, application of punitive compensation, in addition to statutory damages, also showed Chinese court’s determination to discourage PVR infringement with high level PVR protection. ”

Sunny Su, Lusheng principal, Digital and Commercial Team, another lead attorney on the case, added: “The fact that we were able to gather and analyse all intelligence against the seasonal constraints of planting and harvest times, to win the highest ever compensation for our client is a testament to our specialist litigation team. The Chinese Court made the right decision as it will be well-received by the wider agriculture sector and any food business who is importing or exporting goods to China.”

Morgan Rogers at ENZAFruit, addressed: “Our Scilate apples and premium Envy® brand are renowned globally, with consumers and customers in over 60 countries seeking them out. Significant research, development, marketing and sales investment has gone into creating the unique variety and building our premium Envy® brand, which is why we strongly protect and defend our IP to ensure its value flows through to consumers, customers, licensed growers and communities. We thank Lusheng Law Firm for their support in protecting our IP in China and ensuring our Chinese growing partners investment is protected, and for creating a precedent which discourages PVR infringement and provides enhanced PVR protection.”

This agriculture industry IP victory sets a precedent for future vegetative propagation plant PVR cases. The legal victory of Lusheng and ENZAfruit has helped boost the confidence of the agrifood industry in China to tackle any challenging PVR infringement cases related to produce.