This article has been written by Ms. Samriddhi Vishen, a 2nd year LL.B. student of Shri Jai Narain Misra PG College (KKC), Lucknow.
Agriculture needs to be developed faster than other core industries in India because it is one of the most important economic sectors in the country. Internationally, it has been agreed that plant breeders’ contributions should not only be acknowledged, but also that a legal framework should be created to establish and defend their rights. The Protection of Plant Varieties and Farmers Rights Act, 2001 (PPV&FRA) was passed in India in order to give effect to the TRIPS agreement.
The Indian government adopted a sui generis approach when it passed “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001.” Indian law not only complies with the International Union for the Protection of New Varieties of Plants (UPOV) 1978 but also contains significant protections for farmers’ and public sector breeding institutes’ interests. The law acknowledges the roles played by farmers and commercial plant breeders in plant breeding activities and provides for TRIPs to be implemented in a way that advances the unique socio economic interests of all parties involved, including the public and private sectors, research institutions, and farmers with limited resources. Thus, this article attempts to explain the provisions related to plant varieties protection in India.
Protecting plant varieties
When multinational firms were established, it wasn’t long before it became clear that the agricultural industry also needed some type of IP protection to reduce the risks and uncertainties of the investments involved with research in the area. As a result, WTO members are required by Article 27.3(b) of the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement to provide for the protection of plant varieties through patents, an effective sui generis system, or any combination of the two.
The importance of the UPOV system stems from the fact that it offers an alternative to patent protection. Patentable inventions must satisfy the requirements of novelty, non-obviousness, and industrial applicability. However, plant breeders’ rights are assessed on a different basis under UPOV (which only applies to plant varieties), and the variety must be novel, distinct, uniform, and stable.
India was also compelled to either adopt the UPOV model or create its own sui generis law as part of its commitments to abide by the terms of the TRIPS Agreement. The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001, was passed as a result.
Objectives of the Act
- To create a framework that effectively protects plant varieties, farmer and plant breeder rights, and to promote the creation of new plant varieties.
- To acknowledge and defend farmers’ rights with regard to their ongoing efforts to preserve, enhance, and make available plant genetic resources for the creation of new plant kinds.
- Protecting the rights of plant breeders will help the nation’s agricultural development along with encouraging public and private sector investment in research and development to create new plant types.
- Encourage the development of the nation’s seed industry, which will guarantee that farmers have access to high-quality seeds and planting supplies.
Rights under the Act
- Breeders’ Rights: The protected variety may only be produced, sold, marketed, distributed, imported, or exported by breeders. Breeders may appoint an agent or licensee and pursue a civil remedy in the event that their rights are violated.
- Researchers’ Rights: Under the Act, researchers may conduct experiments or conduct research using any of the registered varieties. This includes using a variety as a starting point for the development of another variety, but repeated use requires prior consent from the registered breeder.
- Farmers’ Rights: Similar to a breeder of a variety, a farmer who has created a new variety is entitled to registration and protection. Farmers’ varieties are also eligible for registration as extant varieties. With the exception of selling branded seed of a variety protected under the PPV&FR Act, 2001, a farmer is permitted to conserve, use, sow, re-sow, share, exchange, and sell his agricultural products, including seed, in the same manner as he was before this Act came into effect. Farmers are entitled to praise and benefits for protecting the Plant Genetic Resources of land races and wild relatives of economic plants. In accordance with Section 39(2) of the Act, 2001, farmers are also entitled to compensation for variety’s performance, and they are not required to pay any fees in connection with any proceedings before the Authority, the Registrar, the Tribunal, or the High Court.
Implementation of the Act
The Protection of Plant Varieties and Farmers’ Rights Authority (PPVFRA) was established on November 11, 2005, by the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture and Farmers Welfare, to carry out the Act’s provisions. The Authority’s Chief Executive is the Chairperson. According to a notification by the Indian government, the Authority comprises 15 members in addition to the Chairperson (GOI). Eight of them are ex-officio members representing various Departments and Ministries, three are from SAUs and the State Governments, and the Central Government designates one representative for each of farmers, tribal organizations, the seed industry, and organizations of women involved in agricultural activities. The Authority’s ex-officio Member Secretary is the Registrar General.
Persons who can apply for Registration of Plant Variety in India
Anyone claiming to be the breeder of the variety, any successor to the breeder of the variety, anyone being the assignee or breeder of the variety in respect of the right to submit such an application, anyone with the authority to submit an application on behalf of farmers, any farmer or group of farmers or community of farmers claiming to be the breeder of the variety, and any university or publicly funded agricultural institution claiming to be the breeder of the variety can make an application for registration of a plant variety in India.
Filing Requirements for the Registration of a Plant Variety in India
It includes information regarding the following:
- Name, address, nationality of the applicant and agent’s service address.
- An allocated denomination of such a variety
- Accompanied by an affidavit stating that the variety doesn’t include any terminator-related genes or gene sequences.
- Complete passport information for each parent line, including where they are located in India. And any information about the role that any farmers, villagers, communities, institutions, or other groups may have played in the development, evolution, or breeding of the variety.
- Description of novelty, distinctiveness, uniformity, and stability of variety
- A statement stating that the genetic material used to create this strain was obtained legally.
Certificate of Registration
From the date of filing the application for the registration of a plant variety, there can be a maximum of three years for issuing the certificate of registration.
Duration of Registration
- 18 years after the variety’s registration date for trees and vines (perennials).
- 15 years after the variety’s registration date for other crops (annuals).
- 15 years from the date at which the Central Government first notified the public about an extant variety in accordance with section 5 of the Seeds Act of 1966 for extant varieties.
Exemptions provided by the Act
- Farmers’ Exemption: Farmers are free to produce, conserve, use, sow, resow, trade, share, or sell their farm products, including any seed of a variety that is protected by this Act.
- Researcher’s Exemption: the practice of using a registered variety for experiments and a variety as a starting point for the development of additional variations.
- In Maharashtra Hybrid Seed Co and Anr v. Union of India and Anr [(2015) 217 DLT 175], the petitioners challenged the Registrar’s ruling of the PPVFRA, which said that parent lines of well-known hybrid varieties cannot be registered as “new” plant varieties. It was ruled that a hybrid cannot be considered unique if its parental lines fell under the category of a “extant variety” that is well-known.
- The Supreme Court ruled in Emergent Genetics India (P) Ltd. v. Shailendra Shivam[vii] that farmers in India have been producing their own seeds locally for centuries and that a considerable portion of the population relies on agriculture for survival and a means of subsistence. About 75% of these seeds are produced by farmers and peasants. These farmers have certain protections under the PPVFRA, including the ability to use, save, use, exchange, share, sell, sow, or resow farm products, including seeds protected by the Act. Breeders are required to inform farmers when they sell any registered material. This is done so the farmer can forecast performance and make a compensation claim if they fail to provide the same. Hence, the act does offer a decent regulatory framework for subjects the Seed Act does not cover. By prohibiting the patenting of seeds, which would have resulted in huge corporations assuming control and profiting from the royalties, it also preserves the integrity of agriculture.
- Sungro Seeds Ltd. v. Union of India- In this case, the issue of whether a plant variety’s seed should be regarded as novel if a hybrid seed is produced from it was raised. It was held that the hybrid’s parental lines cannot be considered novel if they fall into the category of an existing variety that is well-known.
A successful sui generis framework for balancing the rights of plant reproducers, ranchers, and specialists is the Protection of Plant Varieties and Farmers’ Rights Act. In India and the majority of the creative nations of Asia-Pacific, the act of little, modest ranchers trading the acquired material with others is vital for their job. The Protection of Plant Varieties and Farmers’ Rights Authority is making every effort to implement the various provisions of the Act, as well as to increase access to high-quality seeds of the varieties listed, while also assisting ranch families with the preservation and responsible use of their inherited assets, keeping in mind both in-situ and ex-situ varieties.
Rangheka. D., 2000. Intellectual property rights Agriculture: An Analysis of the Economics Impact of Plant Breeders Rights.
Jayashree Watal, Intellectual Property Rights, Oxford University Press.
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