Let’s imagine a brand-new Christmas tree whose needles naturally fluoresce in the dark and never fall off, sparing us both power consumption and vacuuming. Better still, suppose this miraculous tree would last years after it has been cut off – the ultimate eco-friendly decoration.
A festive fantasy? Certainly. But from an IP perspective, it raises a series of very interesting questions.
For example, could such fluorescent Christmas tree be protected by a patent in China? If the answer is negative, would it be possible to protect it through the methods used to obtain it? Unless these methods are not patentable? Would it be possible to protect parts thereof (cut tree, needles, seeds, or branches)? If a patent is not available, what other rights could safeguard such an innovation?
This imaginary glowing tree will serve in this article as a practical illustration for examining the protection of innovative plants in China and the key differences with the European system.
The starting point for assessing patent protection for plants in China is Article 25.1 of the Patent Law, which expressly excludes several categories of inventions from patentability :
Article 25.1 – No patent right shall be granted for:
- scientific discoveries;
- rules and methods for intellectual activities;
- methods for the diagnosis or treatment of diseases;
- animal orplant varieties;
- the processes of nuclear transformation and the substances obtained by means of nuclear transformation; and
- designs mainly used for marking patterns, colours or their combinations on prints.
For plants, two exclusions are immediately relevant:
1.
Wild plants can be excluded as being “scientific discoveries” – Article 25.1(1)
Although it is rather unlikely that anyone would stumble upon a naturally glowing Christmas tree during a dark winter walk in the forest, let’s assume for one moment that such a miracle occurs. In that case, the tree would fall squarely within the notion of a “scientific discovery” under Article 25.1(1) – and would therefore be excluded from patent protection in China.
The 2026 Examination Guidelines that have been pre-published on 13 November 2025 make this point very clear:
Wild plants found in nature that have not undergone technical processing and that exist naturally belong to scientific discoveries as specified in Item (1) of Paragraph 1, Article 25 of the Patent Law, and shall not be granted patent rights.
As in China, a naturally occurring fluorescent tree discovered in nature is not patentable in Europe (Article 52(2)(a)EPC).
2.
Exclusion of plant as being “plant varieties” – Article 25.1(4)
The second barrier concerns the concept of “plant varieties” mentioned in Article 25.1(4).
Under the 2010 Examination Guidelines that were in force until December 2025, a “plant variety” encompassed any “single plant and its reproductive material, which maintains its life by synthesizing carbohydrate and protein from the inorganic substances, such as water, carbon dioxide and mineral salt and so on through photosynthesis”(Part II, Chapter 10, Section 9.1.2.3)
The new Guidelines that entered into force on 1 January 2026 have significantly narrowed this definition to plants that have been artificially selected or discovered and subsequently improved, exhibiting uniform morphological and biological characteristics, as well as relatively stable genetic traits (Part II, Chapter 10, Sections 9.1.2.3 and 9.1.2.4 of the Guidelines).
Any plant meeting these criteria – whether or not it is formally registered as a new plant variety – is considered in China to constitute a “plant variety” under Chinese patent law and therefore remains excluded from patentability pursuant to Article 25.1(4) of the Chinese Patent Law.
In order to determine whether the claimed plant is excluded from patentability, Examiners must therefore take into account the description of the application and assess whether the claimed technical characteristics are uniform (i.e. present in all individuals of the targeted plant population) and stable (i.e. remaining unchanged in the progeny obtained through successive propagation cycles).
The uniformity criterion newly introduced in the Guidelines now appears to make it possible to obtain patent protection for transgenic plant populations that are not limited to a plant variety. In our example, claims directed to transgenic fir trees belonging to the same genus (e.g. Picea) or to the same species (e.g. Picea abies), without being limited to a “plant variety” as defined above, would therefore now be accepted by the Chinese Patent Office.
This Chinese approach is now more consistent with the European system:
Under the EU regime (cf. Art. 4 of the EU Regulation 2100/94 and G1/98), inventions directed to plants are patentable as long as their implementation is not confined to a single plant variety. In other words, a plant defined by a genetic feature that can appear across multiple varieties can be patented by the EPO.
Thus, a claim to “a conifer comprising transgene X conferring fluorescent needles,” potentially spanning multiple species or cultivars, may be allowable in Europe and now also in China.
3.
What about plant parts ?
Under Chinese patent law, plant parts were unpatentable only if they are capable of reproducing, i.e., of developing into a complete plant. As a consequence, seeds, embryos, reproductive tissues, meristematic cells, and undifferentiated plant cells were all considered as non-patentable.
By contrast, processed plant material that could no longer regenerate was not regarded as propagating material. Such non-viable plant parts remained therefore patentable under the Chinese Patent Law.
This was clearly expressed in the 2010 Examination Guidelines, which specified (Part II, Chapter 10, Section 9.1.2.3) that:
“If a cell, a tissue and an organ of a plant do not possess the above-mentioned characteristic [namely, to maintain its life by synthesizing…], they cannot be regarded as “plant variety”, therefore they do not belong to the subject-matters excluded according to the provisions of Article 25.1(4).”
Accordingly, a cut Christmas tree or a cut branch would not have been qualified as a “plant” or “plant variety” within the meaning of Article 25.1(4), because it was neither propagating material nor capable of forming a population exhibiting stable hereditary traits.
Under European patent law, no distinction is drawn between reproductive plants and non-reproductive plant parts. The same patentability criteria therefore apply to plant parts as to plants themselves.
4.
What about the method to produce plants ?
As in Europe, under Chinese patent law, the patentability of plant-production methods depends on whether the production process can be qualified as being “essentially biological” or not.
The 2021 Guidelines state explicitly (Part II, chapter 1, section 4.4.) that:
According to Article 25, paragraph 2 of the Patent Law, methods for the production of animals and plant varieties may be granted patent rights. However, the production methods referred to here mean non-biological methods and do not include methods that are mainly biological for producing animals or plants.
Whether a method constitutes a “method mainly of a biological nature” depends on the degree of human technical intervention involved in the method. If human technical intervention plays a primary or decisive controlling role in achieving the intended purpose or effect of the method, such a method does not fall within the scope of a “method mainly of a biological nature.”
The underlying logic is that such processes ultimately rely on natural biological mechanisms, with human action merely guiding the selection rather than providing the decisive technical contribution.
Essentially biological processes are therefore excluded from patentability in China, as they are in Europe.
However, it appears that, in China, a plant obtained by an essentially biological process may nonetheless be claimed as such, provided that it does not constitute a plant variety excluded under Article 25.1(4) of the Patent Law. Indeed, the new Guidelines do not seem to explicitly exclude this possibility. This contrasts with the European approach following the introduction of Rule 28(2) EPC in 2017, pursuant to which plants obtained by essentially biological processes are excluded from patentability (G 3/19).
Conversely, methods involving microbiological steps, genetic engineering techniques, genome editing, or other biotechnological interventions are patentable under both Chinese and European patent law. It is therefore now possible to claim a plant obtained by such a non-essentially biological process, provided that it does not constitute a plant variety.
It should be recalled that a patentable method confers, in both China and Europe, protection not only over the method itself, but also over the products directly obtained by that method, including products (such as plant varieties) that, if claimed as such, would be excluded from patentability.
Conclusion
In conclusion, patent protection for plants has now largely converged in China and Europe, following the relaxation of the Chinese system, which no longer systematically excludes viable plants from patentability. As in Europe, only “plant varieties”- that is, groups of plants exhibiting sufficiently uniform and stable characteristics within the meaning of plant variety protection law – remain excluded from the scope of patent protection.
These varieties are not, however, devoid of protection in China. In practice, they may be effectively protected under the plant variety rights system (“Plant Variety Rights” or “PVR”, also referred to in China as “New Plant Variety rights” or “NPV”), a regime that is particularly well developed and is currently experiencing rapid growth in China.
As this issue goes beyond the scope of the present study, it will be addressed in a forthcoming article. See you soon !
January 2026
Contributing author
Gabrielle Faure-André
European Patent Attorney
