Who was ultimately harmed by infringement? The lawsuit against the best-selling domestically produced hydrangea flower has reached the highest court

Summer is the season when hydrangeas are in full bloom. This kind of cute and brightly colored flower has become increasingly popular among the public in recent years.

The origin of embroidered balls is in China, but currently popular varieties such as "Endless Summer" and "Annabella" in the market are all imported from abroad.

Where have domestic embroidered balls gone? Just last month, the National Forestry and Grassland Administration introduced four new varieties of excellent Chinese forestry and grass plants to the world, and "Boda Blue" hydrangea is one of them. In 2015, the then State Forestry Administration granted the new variety rights to the "Boda Blue" hydrangea plant, and flower breeding expert Yang Yuyong was the only owner of the variety rights.

"Broad Blue" Hydrangea Tide News Reporter Ye Yilin Photograph

When Yang Yuyong heard that the embroidered ball he cultivated represented China going global, he was mixed in joy and sorrow.

In order to cultivate better new varieties of Chinese hydrangea, this breeding expert has invested a lot of time and effort. But in the Kunming Dounan Flower Market, known as the "largest fresh cut flower trading market in Asia," there is a type of embroidered ball flower that is very similar to "Boda Blue" and is selling well. A distributor told a trendy news reporter that this type of embroidered ball can account for about 60% of the market share in the Dounan embroidered ball fresh cut flower market, named after its deep-sea like and charming color: "Ocean Blue.".

Photo by Ye Yilin, a journalist from the "Blue Sea" Embroidery Ball Tide News in Dounan Flower Market

Since seeing this best-selling hydrangea flower for the first time, Yang Yuyong has been very certain that it is his "child". He realized that the new variety he cultivated may have been infringed upon.

Three years ago, Yang Yuyong sued three growers who had either breached or infringed on their rights, embarking on a tedious path of safeguarding their rights. The lawsuit went on one after another: both cases were won in the first instance, and one was settled out of court. At present, one of the infringement cases has entered the second instance of the Supreme People's Court and is awaiting the verdict.

In recent years, Yang Yuyong has had to repeatedly do the same proof question: "Ocean Blue" is "Broad Blue".

Behind it is the game of "plant intellectual property" that the vast majority of flower admirers are not familiar with.

Every embroidered ball merchant in Dounan Flower Market is selling "Ocean Blue"

But almost no one knows about "Bo Da Lan"

As night falls, it signals the beginning of the bustling Dounan Flower Market. In early June, a reporter from Chao News rushed to Kunming for an interview. It was around 8 pm in the evening, and the huge market was bustling with people. More than 7000 stalls began operating at the same time, with a sea of flowers and crowds that could not be seen at a glance.

During the day, fresh flowers that are open in the fields are harvested and transported to this place. At night, dealers rush into the market with small flashlights to sweep the goods. They need to take advantage of the freshest time and send the flowers to flower shops and supermarkets in major cities across the country as soon as possible.

According to statistics from relevant departments in Yunnan Province, this place, known as the "largest fresh cut flower trading market in Asia," can sell tens of billions of flowers annually. Industry insiders told Chao News reporters, "Out of every 10 fresh flowers in the country, 7 come from Dounan. This is the 'barometer' of fresh cut flowers in the country."

As night falls, the Dounan Flower Market begins trading. Photo by journalist Ye Yilin

In the Embroidery Exhibition and Sales Hall of Dounan Flower Market, there are small mountains of pink, blue, or purple embroidered ball flowers piled up. Upon closer inspection, the floor is divided into square areas of varying sizes using yellow tape, each of which represents a distributor. Roughly speaking, there are approximately 70-80 distributors.

The reporter randomly asked several companies, and each one had "Ocean Blue" for sale. According to different varieties and appearances, the wholesale price of fresh cut hydrangea flowers in the market is 6-18 yuan per piece. The largest and darkest ones are mostly "sea blue", while the pink ones are called "sea pink".

The price of "Sea Blue", which can achieve A-grade appearance, is 2-3 yuan higher than other varieties of embroidered balls in the same class. Many sellers have already sold out their "Ocean Blue" products: "They are sold out today. If you want to buy, we will start business at noon every day. You must come by 2 pm at the latest."

Fresh Cut Hydrangea in Dounan Flower Market

Mr. Zhou, who has been in the embroidery ball business for over a decade, said that he sells at least ten thousand pieces of "sea blue" embroidery balls from his hands every day. "This type of hydrangea has a large head, deep color, strong branches, and a long flowering period, making it particularly suitable for making fresh cut flowers." He recalled that around 2016, "Ocean Blue" became popular in the market, and it sold better year by year. Until now, he has posted news of the arrival of "Ocean Blue" on his social media, and many customers are rushing to make reservations.

But he had never heard of the name "Bo Da Lan", and "Da Hai Lan" was also purchased from another grower. It was not until Yang Yuyong's company approached him that he found out that this type of embroidered ball had a patent dispute.

For Yang Yuyong, this is another story.

In 2014, a flower grower in Kunming approached Yang Yuyong and wanted to buy some excellent new varieties of embroidered balls to market, including "Boda Blue".

According to the contract, this company is required to pay a certain percentage of the sales volume to Yang Yuyong for the patent fee. However, the other party did not pay the money as agreed.

The patent fee is still in arrears, but the "sea blue" hydrangea, which seems to be the same as "Broad Blue" in the market, is selling more and more. Yang Yuyong realizes that his new varieties have been planted and sold in large quantities without authorization, which is what the industry calls "stolen breeding".

In 2020, Yang Yuyong sued the defaulting grower for patent fees and compensation for losses. In addition, two other suspected illegal growers were sued, demanding cessation of infringement and compensation.

How did "Boda Blue" become "Ocean Blue"?

Yang Yuyong said that after he sold "Boda Blue" to the flower grower in 2014, they changed the name of this flower to "Ocean Blue" and sold it to the market. Later, he learned that the "Ocean Blue" planted by two other suspected illegal growers was also closely related to the company that first purchased "Boda Blue".

At present, both lawsuits have entered the second trial stage. One of the cases involves intellectual property rights, and according to regulations, the second instance will be directly tried by the Supreme People's Court. It is currently awaiting a second instance judgment.

"The lawsuit is not over yet, and the market is already full of flowers," Yang Yuyong said helplessly. "In China, patent fees cannot be collected, and breeding alone cannot make much money. I am still relying on planting to 'raise' breeding."

Six years of cultivation of "Broad Blue"

Stealing and breeding only takes one month

If you have watched the CCTV documentary "Flowers Bloom in China", you will definitely have an impression of Yang Yuyong.

This breeding expert, whose skin has been tanned by the sun, comes from Northeast China. In order to have a more suitable climate for flower growth, he moved to Yunnan and established a horticultural company. He stayed in Kunming for 25 years. In 2004, he cultivated China's first independent intellectual property rose variety "Bingqing", and has since continuously innovated. Currently, he has 39 new rose variety patents, many of which are sold overseas. In the industry, everyone calls him "Yang Rose".

Photo by Yang Yuyong and his new embroidery ball variety trend journalist Ye Yilin

Before Yang Yuyong became known as the "Yang Rose", he was only engaged in planting, not breeding.

He embarked on the path of flower breeding because of that incident over thirty years ago.

In 1990, Yang Yuyong collaborated with the world-renowned rose breeder Meion International in France to introduce more than 30 of their rose varieties, paying over 2 million yuan in patent fees. "Rose and hydrangea plants have abundant germplasm resources in China, why can't we develop new varieties ourselves?" Yang Yuyong, who loves flowers so much, thinks he can do more.

After the birth of "Bingqing", Yang Yuyong opened a gap in the flower breeding market monopolized by foreign countries. The French Maion, who once charged him high patent fees, also began to represent the varieties he cultivated and sell them to Europe.

Meion, France is a family owned enterprise that has been passed down from generation to generation and has a century of historical accumulation. Our flower breeding industry started relatively late compared to foreign countries, and it took me 30 years to achieve some results. Soon, Yang Yuyong found a new direction, or could "overtake" by starting with hydrangea and cultivating better new varieties of Chinese hydrangea.

"More than two thousand years ago in the Tang Dynasty, Chinese people planted hydrangeas as ornamental plants in their courtyards. When it came to cultivating new hydrangeas, Yang Yuyong opened his mouth." Currently, most of the hydrangeas on the market are bred abroad, and the variety is generally not many, and the defects are more obvious. For example, some can only bloom in low temperature environments, while others are particularly thin and weak, and collapse when it rains. "

Yang Yuyong believes that if there are better new varieties of embroidered balls, they will definitely sell better than foreign embroidered balls. For both himself and the domestic flower industry, it is a good thing.

However, cultivating new varieties is a long and arduous process.

The first step is to collect germplasm resources. Where to collect it? Either go abroad to buy or search in the wild.

When I saw Yang Yuyong, he was preparing for a field trip to Shangri La. For over twenty years, he has maintained the habit of conducting field investigations, going out for as little as one or two weeks and as much as one or two months. He travels all over the plateau mountains and rivers, and his annual journey can reach 50000 kilometers. "I have been to Tianmu Mountain, Tianlao Mountain, and Qiandao Lake." When Yang Yuyong heard the reporter coming from Zhejiang, he pointed out several place names, all of which have good ecological environments and a wide variety of wild plants.

Years of harvest are showcased in his southern mountain flower planting base. This flower mountain, covering an area of over 1000 acres, is also a germplasm resource bank for plants of the Rosa and Hydrangea genera. Currently, it has over 2400 domestic and foreign varieties.

Nanguo Mountain Flower Planting Base Tide News Reporter Ye Yilin Photo

With a foundation of germplasm resources, the second step is hybridization cultivation.

In 2007, Yang Yuyong began hybrid cultivation of hydrangea using the wild large leaf hydrangea collected from China as the female parent and the Borden Lake hydrangea selected from France as the male parent. "After hybridization, it is necessary to observe the stability and consistency of the variety, and then make continuous adjustments. Embroidery balls only bloom once a year, and the flowering period is about two months, so this process requires a long time."

South Country Mountain Flower Planting Base Scientific Research Experimental Zone

Five years later, Yang Yuyong successfully cultivated nine types of embroidered balls, including "Boda Blue", "Lake Blue", "Blossoming Flowers", and "Blossoming Rich and Noble". Finally, he harvested the excellent varieties he had hoped for.

At the Nanguo Mountain Flower Planting Base in Kunming, a journalist from Chao News saw this "broad blue" embroidered ball. Yang Yuyong leaned down to hold the deep blue embroidered ball flower, as if holding up a doll's face: "Look, its flowers are much larger than my two palms placed together."

"Generally, an annual hydrangea plant can only bloom 2-3 flowers, and it can bloom 4-5; it is still very strong, and it will not fall in heavy rainstorm, and has good disease resistance," said Yang Yuyong.

Chao News reporters found that compared to other embroidered balls, the flowers of "Boda Blue" are larger and denser, and the shape of the petals is also sharper. Yang Yuyong corrected, "That's not the petals, it's the sepals. If the number of sepals is less than four hundred, the flower doesn't look compact enough, and if it exceeds one thousand, it's too dense and easy to get crushed during transportation. The number of sepals in 'Boda Blue' is about six hundred, just right."

"Boda Blue" Embroidery Ball

Raising new varieties is not the last step.

After joining UPOV in 1999, China began authorizing new plant varieties. "The prerequisite for the protection of new varieties is that such plants must first enter the" List of New Plant Varieties Protection of the People's Republic of China "."

Yang Yuyong said that in order to include the Hydrangea plant in the protection list, he and other experts have been submitting proposals to the National Forestry Administration every year since 2010, explaining the necessity of protecting Hydrangea. For example, hydrangea is a traditional famous flower in China, which is the distribution center of wild resources of hydrangea plants worldwide. In terms of the global market, the development of hydrangea will be very fast in the future, and so on. Three years later, hydrangea was finally included in the protected list.

In the same year, Yang Yuyong applied for plant new variety authorization for 9 types of hydrangea, including "Boda Blue". After review by the Plant New Variety Protection Office of the State Forestry Administration, in 2015, he was officially granted the "Boda Blue" plant new variety right, and Yang Yuyong was the only variety owner.

Yang Yuyong broke his fingers and said, "Even if we don't include the preliminary work of collecting germplasm resources, it took me 6 years to cultivate 'Boda Blue', and with the application for patent rights, it would take a total of 8 years." He sighed, "But to 'steal' it, all you need to do is use a branch or tender bud to cut it, and one month is enough."

There was once a lawsuit against a tree that lasted for four and a half years

Who was ultimately harmed by infringing on "plant intellectual property rights"

"Bo Da Lan" is not the first plant to file a lawsuit.

In 2016, the intellectual property court's judicial verdict surrounding a "beautiful elm" tree was finalized, and the variety owner ultimately won the lawsuit. This lawsuit has gone through six court hearings and took four and a half years. It is known as the "first case of protecting the rights of new forestry plant varieties" in the industry, and was also rated as one of the top ten intellectual property cases by the Supreme People's Court in 2016.

Yu Renchun, a lawyer at Hebei Cape of Good Hope Law Firm, is the plaintiff's representative lawyer for the "Beauty Yu" case. He told Chao News reporters, "Ten years ago, if you told the flower farmers that planting this kind of flower was infringing, they were likely to wave their hands and ignore you."

Yu Renchun introduced that the threshold for infringement of plant variety rights is extremely low, because many plants can survive with just one cutting, and some people's awareness of intellectual property is also relatively weak. In addition, the selling price of crops such as flowers and trees is often not high. Driven by interests, most infringing parties are unwilling to pay licensing fees, which can lead to higher profits; There is another person who is aware of infringement but has a lucky mentality, believing that "the law does not hold the public accountable.".

Even though there are clear regulations on the protection of new plant varieties in China, variety owners still face difficulties in safeguarding their rights. Over the past decade, Yu Renchun has handled many plant intellectual property rights protection cases, often facing the problem of how to prove that "Da Hai Lan" is "Bo Da Lan".

"Our country's judicial trial experience in this area is still insufficient." Yu Renchun said that intellectual property protection cases such as new plant varieties have strong professionalism. There are many identification methods in botany to determine whether two different varieties with the same name are the same variety. However, there is no clear regulation on which method will be used to obtain court acceptance. "Plant growth requires time, and comparison requires time. Third party evaluation and authoritative judicial appraisal institutions in this area also urgently need to be improved, which will lead to high costs for rights defenders."

"Either forget it." Like other plant variety rights holders, Yang Yuyong also had the idea of giving up his rights protection on the road of entrusting evidence collection everywhere. However, whenever he thought of his "broad blue", he still chose to persist.

"Disorderly theft and reproduction will ultimately lead to the deterioration of this variety," Yang Yuyong said. Pirates often do not understand the characteristics of the variety and cannot guarantee its quality during the planting process; In addition, the proliferation of popular varieties by a swarm of bees can also lead to rapid market saturation, with prices of varieties falling repeatedly and quality not being guaranteed. The victims are still flower farmers, distributors, and consumers.

The lack of protection of variety rights is not conducive to the further development of China's floral industry.

"If the protection of variety rights is not in place, foreign varieties will not dare to come, and domestically bred varieties will not dare to sell. Domestic consumers will only increasingly be unable to buy good products." An industry insider told Chao News reporters, looking at the market, even in a flower industry province like Yunnan, well-known breeding enterprises can be counted with just one hand. "It takes time and effort to cultivate a new variety, but the results are easily stolen and multiplied, and no one can afford to file lawsuits everywhere."

Lu Jiliang, Deputy Secretary General of the Potted Plant Branch of the China Flower Association, once wrote in an article titled "Analysis of Yunnan Flower Production and Sales Situation from 2022 to 2023": "Seed industry innovation needs to be strengthened. Although Yunnan has relative variety advantages in China, overall, its dependence on foreign new and excellent varieties is still high, with over 90% of varieties relying on imports."

Yunnan Province is also taking action. In February this year, Yunnan Province released the "Three Year Action Plan for High Quality Development of the Flower Industry", which first mentioned the implementation of flower variety innovation projects, seed industry base construction projects, and intellectual property protection projects. By 2024, we aim to promote 100 new and excellent flower varieties annually, with a self-sufficiency rate and market share of over 85% for high-quality seedlings.

On Wall Street in Dounan Flower Market

There is a new method for protecting patent rights

Yang Yuyong is not the only one who realizes the importance of protecting the rights to new flower varieties.

Kunming has found an effective solution, and trendy news reporters have also gone to the scene to take a look.

In the bustling Dounan Flower Market, there is a place that looks very "Wall Street": Kunming International Flower Auction and Trading Center. Unlike the trading scene of the flower market, which is more beautiful at night, trading here usually starts from 3 pm. The large screen in the auction hall lights up, and the 12 "big clocks" on the screen scroll in real time. Sitting in front of the 900 small screens below are all flower brokers. They need to closely monitor every quotation on the "big clock" and take pictures of the goods needed for flower buyers, of course, they also need to "work together quickly".

Photo by Ye Yilin, a trendy journalist from the auction hall of Kunming International Flower Auction and Trading Center

Every time the flower broker grabs an order, the variety rights patent fee is already included in the payment. This is due to the tripartite cooperation model of "introduction and protection of new flower varieties" launched by Kunming International Flower Auction and Trading Center in 2006. That is to say, by promoting breeding enterprises, flower producers, and auctioneers to sign agreements, producers do not need to immediately pay patent fees when purchasing patented varieties, but wait until the products are sold in the auction market to deduct patent fees from their transaction flowers.

This model has attracted more foreign rose breeders to enter the Chinese market. There are more and more new varieties of roses. "Freud", "Plateau Red", "Cappuccino" and other varieties introduced from abroad have become the "online red roses" popular with consumers, accelerating the development of the flower industry.

Every time a single order is taken in the auction hall, the warehouse outside the hall starts to be distributed.

However, this model of withholding patent fees cannot cover all flower distributors and growers. In Yunnan, more people choose to engage in traditional wholesale transactions outside auction centers. A flower broker who is "grabbing orders" at an auction trading center told Chao News reporters that most of the transactions in the auction market are roses, "embroidered balls are bought by the boss himself."

Collecting patent fees through a tripartite cooperation model to some extent reflects the path to solving the problem: the protection of patent rights requires industry consensus, and more importantly, the assistance of transaction and circulation platforms.

On March 1, 2022, the new version of Zhonghua