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Published : December 05, 2012 | Author : Bheemabai S.Mulage
Category : Intellectual Property | Total Views : 8010 | Unrated

Bheemabai S.Mulage
Bheemabai S.Mulage, LL.M.,M.Phil.,UGC.NET(JRF), Assistant Professor in Law, Karnataka State Law University's Law School, Navanagar, Hubli.

Plant Variety Protection In India: An Alternative To Patents

Development of a new plant variety, either by “traditional’’ breeding methods or by “modern’’ molecular modification, requires a lot of time and effort. To recover the costs of this research and development, the breeder may seek to obtain exclusive marketing Rights for the new variety.

The rights of the breeders are protected by granting them a monopoly to use and sell the seeds and planting material of the new plant varieties involved by them through a system by which they are granted registration. Such registration is equivalent to a patent granted to the inventor in respect of manufacturable goods.1

In the early part of the 20th Century, in the United States and European Countries, agriculture became less important economically and governments started to progressively reduce their involvement in activities related to the development and supply of seeds to farmers. This led to the development of more significant private sector seed industries. However, its expansion was curtailed by the nature of seeds which can, once purchased, often be reused for several generations by farmers. This led to the call for a legal protection of plant varieties.2

There were several obstacles to the introduction of patents for plant varieties, firstly, from actors opposed in principle to the introduction of patents on life forms. Secondly, there was opposition to what was perceived as the progressive privatization of seeds which had been traditionally exchanged by farmers. Thirdly, there was significant opposition from advocates of the patent system who saw a new ‘plant variety’ as more like an improvement of an existing product of nature than as a scientific invention. The combination of this led to the development of a Hybrid form of intellectual property rights known as “plant breeders rights’’ which received recognition in 1961 in the UPOV Convention, revised first in 1978 and strengthened later in 19913.

European Countries Instituted separate plant variety protection laws, as patent law was considered to be unsuitable for this purpose. In 1941 and 1953 respectively the Netherland and Germany granted limited protection to breeders to exclusively market the seeds of protected varieties4.

Luther Burbank, the American Breeder of 800 new cultivars died in 1926 but, with the help of his widow, The Plant Patent Act (PPA) was passed in 1930.5 The US was the first country to institute IP protection for plant varieties in 1930,6 covered only plants produced asexually. By the 1960’s, some European Countries enacted Plant Breeders Rights Laws. It was demonstrated that sexually reproduced varieties were uniform and stable enough to be included in these Laws. During the 1960’s several attempts were made to enact similar protection in the United States, but these efforts were become unsuccessful.

Later on, covering sexually and asexually propagated plants was passed in the United Nations on Dec 24, 1970.

The history of the evolution of India’s sui generis plant variety protection can be traced back to 1999 when the plant variety bill was introduced in Dec 1999 with a view to start Parliamentary process before the TRIP’s implementation dead line of 1st Jan 2001. This draft was not at all comprehensive and was on the whole largely a plant breeder’s rights legislation. After a number of hearings in 2000, the parliamentary committee ended up substantially rewriting the bill and introducing an important chapter on farmers Rights7.

The Central Government shall establish an Authority to be known as the Protection of Plant Varieties and Farmer’s Rights Authority. It shall consist of a Chairperson and 15 other Members as representatives of different concerned Ministries and departments, Seed industry, farmer’s organizations, tribal communities and state level women’s organization, etc., the authority shall exercise such number of powers and functions as may be conferred by the Act.9

For a variety to be eligible for registration, it must conform to the criteria of novelty, distinctiveness, uniformity and stability (NDUS).

Ø Novel: means that the propagating or harvested material of that variety is not sold or otherwise disposed of for purposes of exploitation in India earlier than one year or in outside India earlier than four year;

Ø Distinct: means that it is not the same but is clearly different from other plants at any rate in its essential characteristics;

Ø Uniform: means all the plants of the variety shall have the same characteristics subject to variations that may be expected from the particular features of its propagation;

Ø Stable: means successive generations of the plants shall continue to have without any variation the same essential characteristic, quality and contents.10

Application For Registration:
Any person specified in section 16 may make an application to the Registrar for registration of any variety.

a) of such genera and species as specified under Sub-Section (2) of Section 29; or

b) which is an extant variety ; or

c) which is a farmers variety.11

Person Who May Make Application:
I) An application for registration of a variety can be made by,

a) any person claiming to be breeder of the variety ; or

b) any successor of the breeder of the variety; or

c) any person being the assignee of the breeder of the variety in respect of the right to make such application; or

d) any farmer or group of farmers or community of farmers claiming to be the breeder of the variety; or

e) any person authorized in the prescribed manner by a person specified under clauses (a) to (d) to make an application on his behalf; or

f) Any University or Publicly funded agricultural institution claiming to be the breeder of the variety.

II) An application under Sub Section (1) may be made by any of the persons referred to therein individually or jointly with any other person.12

Pre-Requisites For Filing An Application:
For registration of plant variety the following pre-requisites are essential

1) Denomination assigned to such variety.

2) Every application shall be accompanied by an affidavit by showing that such variety does not contain any gene or gene sequences involving terminator technology.

3) Complete passport data of parental lines with its geographical location in India and all information relating to the contribution if any, of any farmer(s), village, community, institution or organization etc., in breeding, evolving or developing the variety.

4) Characteristics of variety with description for novelty, distinctiveness, uniformity and stability.

5) A declaration that the genetic material used for breeding of such variety has been lawfully acquired.

6) A breeder or other person making application for registration shall disclose the use of genetic material conserved by any tribal or rural families for improvement of such variety.13

Procedure For Registration:
The registrar may in the first instance, accept the new plant variety as registerable in which case he shall direct the publication of the application together with the enclosures including photographs and drawings calling for objections. The Registrar will after giving due opportunity of hearing to the objectors and the applicant direct registration of the new plant variety in favour of the applicant. The proceedings in the opposition are an important part of proceedings for the registration of new plant variety. It is here all the issues involved about the eligibility of the new plant variety as well as the prohibitions against the grant of registration including issues involved in public interest come under consideration. The order of the registrar either granting or refusing registration shall contain reasons. After the grant of certificate of registration, the Registrar will make further publication of the registration granted to the breeder inviting claims for benefit sharing to the plant variety registered.14

Period Of Protection:
The duration of protection of registered varieties is different for different varieties which are given below:

1) For trees and vines 18 years
2) For other verities 15 years
3) For extant verities 15 years, from the date of notification of that variety by

the Central Government under Section 5 of Seeds Act, 1966.15

Office For The Registration:
Registration of plant varieties can be made in the office of registrar, PPV and FRA, New Delhi. The address of the office is:

The Registrar,
Protection of plant varieties and farmers rights authority,
Government of India,
Ministry of Agriculture,
NASC, Complex, DSP Marg,
Opposite, Tadapur,
New-Delhi- 110012.

Also any information regarding the protection, application, fee structure etc, can be obtained from this office. Completed forms in triplicate, with fee/charges should be submitted to Registrar with enclosures.16

Cost Of Rgistrating A Plant Vareity:
The fee structure as defined by the PPV and FR authority is as below

A. Form Charges

1) Application form charges 200/-

B. DUS Test Fee

1) Rice, Wheat, Maize, Sarghum,

Peral millet, pigeon pea, Mungbean, 20,000/-

Urdbean, Chickpea, field Pea, lentil,

Raj Mash.

C. Annual Fee.

The authority shall notify the amount separately in the official Gazette.17

Breeders Rights:
The certificate of registration for a variety issued under this Act shall confer an exclusive right on the breeder or his successor or his agent or licensee, to produce, sell, market, distribute, import or export of the variety.18

Farmer’s Rights:
The farmer’s rights of the Act define the privilege of farmers and their right to protect varieties developed or conserved by them. Farmers can save, use, sow, re sow, exchange, share and sell farm produce of a protected variety except under a commercial marketing arrangement. Further, the farmers have also been provided protection of innocent infringement when, at the time of infringement, a farmer is not aware of the existence of breeders rights.19

Communities Rights:
The rights of the communities as defined, provide for compensation for the contribution of communities in the evolution of new varieties in quantum to be determined by the PPV&FR Authority.20

Compulsory License:
The authority can grant compulsory license, in case of any complaints about the availability of the seeds of any registered variety to public at a reasonable price. The license can be granted to any person interested to take up such activities after the expiry of a period of 3 years from the date of issue of certificate of registration to undertake production, distribution and sale of the Seed or other propagating material of the variety.21

Benefit Sharing:
Sharing of benefits occurring to a breeder from a variety developed from indigenously derived plant genetic resources has also been provided. The authority may invite claims of benefit sharing of any variety registered under the Act. And shall determine the quantum of such award after ascertaining the extent and nature of the benefit claim, after providing an opportunity to be heard, to both the plant breeder and the claimer.22

National Gene Fund:
The National Gene Fund to be constituted under the Act shall be credited thereto;
a) The benefit sharing from the breeder.
b) The annual fee payable to the authority by way of royalties.
c) By the compensation provided to the communities.
d) Contribution from any National and International Organization.23

Plant Variety Protection Appealate Board:
The Tribunal will be established by a gazette notification by the government to exercise jurisdiction, powers and authority conferred on it under this Act. The Tribunal will consist of judicial as well as Technical Members.24

From the foregoing discussions it can be concluded that, in India the Protection of Plant Variety and Farmers Rights Act, 2001 has not gained fully fledged momentum as is witnessed in the developed countries. The Indian legislation is the first in the world to grant formal rights to farmers in a way that their self-reliance is not jeopardized. What is significant and positive about this legislation is that it charts its own course, deviating from the norms set by the union for the protection of new plant varieties (UPOV).

Parliament by enacting the PPV & FR Act, 2001 protected the breeder’s rights and also paid attention towards the farmer’s interests, but the implementation of the Act is not so effective and there is need of awareness to the farmers regarding their rights so that they may take the full benefit of the Act.

End notes:-
*. Assistant Professor in Law, Karnataka State Law University, Navanagar, Hubli / E-mail: bheema100sm@gmail.com
1) N.K Acharya, Text book on intellectual property Rights, 4th Edn, Asia Law House, Hyderabad. P-198
2) Kameri –Mbote , A.P., 1999. Commission on genetic resources for food agriculture, possible formulas for the sharing of benefits bases on different benefit-indicators. 8th Edn. Rome. PP:19-23
3) Rangheka. D., 2000. Intellectual property rights Agriculture: An Analysis of the Economics Impact of plant Breeders Rights.
4) Jayashree Watal,Intllectual Proprty Rights,Oxford University Press. P-137
5) http://en.Wikipedia.Org/wiki/plant-breeding
6) Supra Note No. 4 P.No. 136
7) http://www.Scipub.org/fulltext/ajeba/ajeba14303-312.pdf
8) http://agritech.tnau.ac.in/patents/patents-pvpfr.html
9) Sec 3 of PPVFR Act, 2001.
10) N.K Acharya, Text book on intellectual property Rights, 4th Edn, Asia Law House, Hyderabad P-198.
11) Sec 15 of PPVFR Act,2001.
12) Sec 16 of PPVFR Act, 2001.
13) http://www. Plant authority.gov.in/pdf/questionnaire.Pdf
14) N.K Acharya, Text book on intellectual property Rights, 4th Edn, Asia Law House, Hyderabad P-198
15) Sec 24of PPVFR Act, 2001.
16) http://www. Plant authority.gov.in/pdf/questionnaire.Pdf
17) Ibid
18) Sec 28 of PPVFR Act, 2001
19) Sec 39 of PPVFR Act, 2001
20) Sec 41 of PPVFR Act, 2001
21) Sec 47 of PPVFR Act, 2001
22) Sec 26 of PPVFR Act, 2001
23) Sec 45 of PPVFR Act, 2001
24) Sec 54 of PPVFR Act, 2001

Authors contact info - articles The  author can be reached at: bheema@legalserviceindia.com

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