The Protection of Plant Varieties and Farmers' Rights
Introduction to Plant Varieties and Farmers Rights
The TRIPS Agreement states that "Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof." In order to fulfill its obligations under the TRIPS Agreement, India has implemented the Protection of Plant Varieties and Farmers' Rights Act, 2001 (hereinafter known as the "Act"). This Act has been passed in order to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders, and to encourage the development of new varieties of plants. The Act helps to stimulate investment for research and development to produce new plant varieties. Such protection is also likely to facilitate the growth of the seed industry that will ensure the availability of high quality seeds and planting material to the farmers.
Registration of a plant variety gives protection only in India and confers upon the rights holder, its successor, agent, or licensee the exclusive right to produce, sell, market, distribute, import, or export the variety.
Who can Apply and What can be Registered
The application for protection under the Act can be made by any of the following persons:
- Any person claiming to be the breeder of the variety;
- Any successor of the breeder of the variety;
- Any person being the assignee or the breeder of the variety in respect of the
right to make such application;
- Any farmer or group of farmers or community of farmers claiming to be breeder
of the variety;
- Any person authorized to apply on behalf of farmers; or
- Any university or publicly funded agricultural institution claiming to be breeder of the variety.
A new variety shall be registered under this Act if it conforms to the following criteria:
Novelty: A new variety is deemed to be novel if, at the date of filing of the application for registration for protection, the propagating and harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety for a certain period of time before the date of filing of the application. For sale or disposal of a new variety in India, this time period is earlier than one year. Outside of India, in the case of trees and vines, the time period is earlier than six years. In any other case in India, it is earlier than four years.
- Distinctiveness: A new variety is deemed distinct if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application.
- Uniformity: A new variety is deemed uniform if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics.
- Stability: A new variety is deemed stable if its essential characteristics remain unchanged after repeated propagation or, in case of a particular cycle of propagation, at the end of each such cycle.
A new variety cannot be registered under a given name if the denomination given to such variety:
Is not capable of identifying such variety;
Consists solely of figures;
Is liable to mislead or cause confusion concerning the characteristics, value identity of such variety or the identity of breeder of such variety;
Is not different from every denomination which designates a variety of the same botanical species or of a closely related species registered under the Act;
Is likely to deceive the public or cause confusion in the public regarding the identity of such variety;
Is likely to hurt the religious sentiments respectively of any class or section of the citizens of India;
Is prohibited for use as a name or emblem for any purposes mentioned in section 3 of the Emblems and Names (Protection of Improper Use) Act, 1950; or
Is comprised of solely or partly of geographical name.
Rights holders can apply for the registration of a new variety either directly or through their agents. The Office of the Registrar, Protection of Plant Varieties and Farmers' Rights Authority is the appropriate office for filing of the application in India. The different steps that are involved in the registration process in India are as follows:
Completing the application form and filing
The Applicant has to file the prescribed form with the requisite fee in the Office of the Registrar. The Applicant can make an application to the Registrar for registration of any variety of such genera and species as specified under sub-section (2) of Section 29 or which is an extant variety or which is a farmer's variety. An agent can complete and sign the application form, provided that the Applicant has issued a signed Power of Attorney appointing them as the agent. The application has to be in respect to a variety and state the denomination assigned to such variety by the Applicant. It has to be accompanied by an affidavit sworn by the Applicant that such variety does not contain any gene or gene sequence involving terminator technology and also a statement containing brief description of the variety bringing out its characteristics of novelty, distinctiveness, uniformity and stability. The application should also contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution, or organization in breeding, evolving, or developing the variety. It should also contain a declaration that the genetic material or parental material acquired for breeding, evolving, or developing the variety has been lawfully acquired. Copies of all the forms are available at Protection of Plant Varieties & Farmers' Rights Authority, India site.
The Applicant must, along with the application for registration under this Act, also make available to the Registrar such quality of seeds of a variety for registration of which such application is made so that the Registrar can conduct tests to evaluate whether seeds of such variety along with parental material conform to the standards as may be specified by regulations. The Applicant should also deposit the requisite fees for conducting such tests.
Review by the Registrar
After the application has been filed, the Registrar will accept the application absolutely or subject to certain conditions or limitations, after reviewing the application and making such inquiry as he deems fit. Should the Registrar not be satisfied with the particulars as mentioned in the application, he can either direct the Applicant to amend the application or in the alternative reject the application.
- Publication and Opposition
After the Registrar accepts the application either absolutely or subject to any conditions, it will be advertised in the prescribed manner along with its photographs or drawings. Within three months of the publication of this application, any person may give notice of his opposing the application to the Registrar in the prescribed format. Any person can oppose the application on the following grounds:
- The person opposing the application is entitled to the breeder's right as against the Applicant;
- The variety is not registerable under the Protection of Plant Varieties & Farmers' Rights Act, 2001 Act;
- The registration of this variety will not be in public interest; or
- The variety may have adverse effect on the environment.
After following the prescribed procedure of serving the Notice of Opposition to the Applicant, perusing the evidence as filed by both the parties and hearing both the parties, the Registrar will either allow or reject the opposition.
When an application for registration of a variety (other than an essentially derived variety) has been accepted and not opposed or opposed but the opposition has been rejected, the Registrar will issue a certificate of registration to the Applicant. A person aggrieved by the decision of the Protection of Plant Varieties and Farmers' Rights Authority or the Registrar can file an appeal before the Plant Varieties Protection Appellate Tribunal.
The Distinctiveness Uniformity and Stability test guidelines have been finalized for 12 notified crop species: Black gram, Bread wheat, Chickpea, Field pea, Green gram, Kidney bean, Lentil, Maize, Pearl millet, Pigeon pea, Rice and Sorghum and the registration for these crops has started
- Term of Registration
The certificate of registration issued by the Registrar is valid for eighteen years from the date of registration of the variety in the case of vine and trees, fifteen years from the date of notification of that variety (under Section 5 of the Seeds Act, 1966) by the Central Government in the case of extant varieties and for a period of fifteen years from the date of registration of the variety in other cases. However, the certificate of registration is valid for a period of nine years in the case of trees and vines and six years in the case of other crops. The Registrar may review and renew this registration for the remaining term on payment of the prescribed fee.
- Researcher's Right
Though the rights holder has the exclusive right to the use of a registered variety, no provision of the Act precludes the researcher's right to the use of any variety for conducting experiments or research or the use of a variety as an initial source for creating other varieties. However, the researcher will have to seek the rights holder's authorization where the repeated use of such variety as a parental line is necessary for commercial production of a newly developed variety.
There are certain circumstances in which the protection that has been granted to a rights holder can be revoked. These circumstances in which the same can be done are enumerated below:
- The grant of the certificate of registration has been based on incorrect information furnished by the rights holder;
- The registered proprietor is not eligible for protection;
- The rights holder has not provided the Registrar with such information and documents as are required under the Act;
- The rights holder has not provided the Registrar with an alternative denomination, which could be used in case the denomination provided by the rights holder is not available;
- The rights holder has not provided the necessary seeds or propagation material to the person to whom a compulsory license has been issued;
- The rights holder has not complied with the provisions of the Actor the accompanying Rules;
- The rights holder has not complied with the directions of the Protection of Plant Varieties and Farmers' Rights Authority; or
- The grant of the certificate is not in public interest.
The Registrar also has the authority to either cancel or rectify the registration on an application made by an aggrieved person.
- Compulsory License
Any person, after expiry of three years from the date of registration, can apply to the Protection of Plant Varieties and Farmers' Rights Authority for a compulsory license for undertaking production, distribution, and sale of the seed or other propagating material on the grounds that the reasonable requirements of the public for seeds or other propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price. This application should contain a statement of the nature of the compulsory license Applicant's interest and the facts upon which the application is based. The Protection of Plant Varieties and Farmers' Rights Authority in consultation with the Central Government and after hearing both the parties may pass an order for the registered proprietor to grant the license on such terms and conditions as the Protection of Plant Varieties and Farmers' Rights Authority deems fit. Furthermore, the Protection of Plant Varieties and Farmers' Rights Authority will determine the duration of the compulsory license on a case-to-case basis but in no event will the duration of the license exceed the total remaining period of the protection.
Infringement & Enforcement Remedies available under The Protection of Plant Varieties and Farmers' Rights Act, 2001
A right established under the Act is infringed by a person:
- Who not being the registered proprietor of the variety under the Act sells, exports, imports or produces such variety without the permission of the registered proprietor;
- Who uses, sells, exports, imports or produces any other variety, giving this variety, the denomination identical with or deceptively similar to the denomination of a variety registered under the Act in such a manner so as to cause confusion in the mind of the general public in identifying the variety that has been registered.
The rights holder in case of an infringement of its rights can file a civil suit in court. This court will not be inferior to a District Court. In the suit, the rights holder may seek an injunction and either damages or a share of the profits. The order for injunction could include interlocutory order for discovery of documents, preserving of infringing variety or documents or other evidence which are related to the subject matter of the suit, and attachment of such property of the infringer that the court deems necessary to recover damages, costs, or other pecuniary remedies which may be finally awarded to the rights holder.
The office of the Registrar of Plant Varieties and Farmer's Rights has drafted guidelines for the conduct of test for Distinctiveness, Uniformity and Stability for Tetraploid Cotton, Diploid Cotton, and Jute and is likely to commence accepting applications for these crops soon. Moreover the Plant Varieties Protection Appellate Tribunal is also likely to be formed soon.
Legislation and Regulation in India
The Protection of Plant Varieties and Farmers' Rights Act, 2001
The Protection of Plant Varieties and Farmers' Rights Rules, 2003
International Treaties to which India is a signatory
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
International Treaty On Plant Genetic Resources For Food And Agriculture
Plant Varieties Related Websites
- What are Farmers' rights?
A farmer who has bred or developed a new variety shall be eligible to register his variety under the Protection of Plant Varieties & Farmers' Rights Act, 2001 in the same manner as a breeder of a variety. A farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be eligible to register his variety for recognition and reward from the Gene Fund provided that material so selected and preserved has been used to donate genes of varieties registered under the Act. Moreover, a farmer shall also be entitled to save, use, sow, re-sow, exchange and share or sell his farm produce including seed of a variety protected under the act in the same manner as he was entitled before the coming into force of the Act provided that the farmer shall not be entitled to sell branded seed of a variety protected under the Act.
- What are the characteristics that may be used for distinguishing a Variety?
The new variety should be distinct from the other varieties for at least one characteristic.
- Is it necessary to submit the seed / propagating material before registration?
Yes, the breeder shall be required to deposit the seed or propagating material including parental line seeds of a registered variety to the Authority. An Applicant has to submit a fixed amount of seed sample (breeder seed) with prescribed germination percentage, physical purity and phyto-sanitary standards. The Applicant shall also submit along with the seed / propagating the seed quality test report.
- Can a person apply for registration of a variety, which is already in the market?
Any variety, which is already in the market, but not for more than one year, may be eligible for registration as a new variety. Other older varieties may be eligible for registration as extant varieties.
- What is the cost of registering a plant variety?
The fee structure as defined by the Authority is available at http://www.plantauthority.in/PDFile/Questionnare.pdf. (PDF)
- Is there any punishment if any person falsely represents a variety as a registered variety?
If a person falsely represents a variety as a registered variety, then he may be punished by imprisonment for a term not less than six months, which can be extended up to three years or by a fine not less than INR one lakh (approximately $2,500) which may be enhanced to INR five lakhs (approximately $12,500), or both.
- What species can be protected?
The Central Government has notified the following crops with their genera eligible for registration of varieties.
|S.No.||Botanical Name||Hindi Name||Common Name|
|1.||Oryza sativa L.||Chawal||Rice|
|2.||Triticum aestivum L.||Gehun||Bread wheat|
|3.||Zea mays L.||Makka||Maize|
|4.||Sorghum bicolor (L.) Moench||Jowar||Sorghum|
|5.||Pennisetum glaucum (L.) R. Br.||Bajra||Pearl millet|
|6.||Cicer arietinum L.||Chana||Chickpea|
|7.||Cajanus cajan (L.) Millsp.||Arhar||Pigeon pea|
|8.||Vigna radiata (L). Wilczek||Mung||Green gram|
|9.||Vigna mungo (L.) Hepper||Urd||Black gram|
|10.||Lens culinaris Medik||Masur||Lentil|
|11.||Pisum sativum L.||Matar||Field pea|
|12.||Phaseolus vulgaris L.||Rajmah||Kidney bean|