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Monish   27 May 2022

Plant varities and farmers right in intellectual property law

PLANT VARITIES AND FARMER’S RIGHTS IN INTELLECTUAL PROPERTY LAW

-MONISH J

19113022

 

ABSTRACT:

Intellectual property rights are rights granted by a government authority to certain products of human ingenuity and intellectual effort. Plant breeding has not always been protected by property rights, owing to the amount of intellectual effort and ingenuity involved. Plants and other living organisms were considered products of nature, rather than fruits of human ingenuity, until the beginning of the twentieth century, when the prevailing view was that IPRs were not suitable for plant protection. Biotechnology advancements, as well as various national laws and court rulings, later mitigated this viewpoint. With the Plant Patent Act of 1930, the United States became the first country to grant plant patents.Following that, in 1961, a group of European countries formed the International Union for the Protection of New Varieties of Plants (UPOV), which establishes breeder's rights, a type of intellectual property. Several questions arise naturally: Why did countries' attitudes toward plant protection shift? Are plants natural products or the result of human ingenuity? Is protecting plants and their varieties beneficial to society? Several authors have already looked into the historical, legal, and economic aspects of the above topics. In light of recent developments in plant breeding, this paper adds to the existing literature by analyzing the legal and practical concerns about plant-related intellectual property protection.This research paper first talks about the meaning of plant varieties and its purposes then it answers the main question of why plant varieties does not fall under the category of patents, then it fully analyze the Plant Varieties and Farmers right Act,2001.

KEY WORDS:

Plant Varieties, Breeder’s Rights, Farmers Rights, Protection, Plant Breeders, Seeds, Species.

 

PLANT VARIETY:

Plant variety is nothing but a variety of any higher plant genus or species that is clearly distinguishable from other known plant varieties by a minimum margin of descripttors and by its own denomination, is homogenous and stable in its descripttors throughout successive generations and belongs to a species useful in farming and forestry, being described in a publicly available and accessible specialized publication, including the component lines of hybrids;

 

PLANT VARIETY PROTECTION AND THE PURPOSE:

  • Plant variety protection provides a breeder with legal protection in the form of Plant breeder's rights.

  • Plant Breeder's Rights are intellectual property rights that give a registered variety's breeder exclusive rights.

WHY PLANT VARIETIES DO NOT FALL UNDER THE PURVIEW OF PATENT?

Because of the WTO's commitment, most developing countries that have not yet extended intellectual property rights to their agricultural sector will be forced to do so. It was a requirement for India as a WTO member and TRIPS signatory.

Plant varieties should be protected by a patent, a sui generis system, or both. India, like most developing countries, decided to ban plant and animal patents.Plant varieties were used, but the sui generis option was used. The term "sui generis" refers to a system that is unique.Plant varieties are effectively protected. 'The Protection of Plant Varieties and Farmers' Rights Act (PPVFR) of 2001 governs plant variety registration.

What is the Protection of Plant Varieties and Farmers' Right Act, 2001?

The Protection of Plant Variety and Farmers Right Act, is an Act enacted by the Parliament of India in 2001 to provide for the establishment of an effective system to protect the:

  • Plant varieties

  • The rights of farmers and

  • Protection of Plant breeders

And also to encourage the development and cultivation of new varieties of plants.

Protection of the plant varieties under the Act accelerates agricultural development and stimulates investment for research development for the development of new plant and varieties which in turn facilitates the growth of the seed industry and ensures the availability of high quality seeds and plant material to the farmers.

WHY PROTECTION FOR PLANTS IS REQUIRED IN INDIA?

WTO members are required to implement the TRIPS Agreement "Plant variety protection system that is effective The TRIPS agreement states in Article 27 (3):

Member countries may make exceptions "Other than microorganisms, plants and animals, and essentially biological processes for the production of plants and animals, other than non-biological and microbiological processes Members, on the other hand, must provide for the protection of plant varieties through patents, an effective sut generis system, or a combination of the two. The Protection of Plant Varieties and Farmers Rights Act, 2001, made India one of the first countries in the world to pass legislation granting farmers rights .

Nine rights are given to farmers under the Act including the rights to save, exchange and (to a limited extent) sell seeds and propagating material, to register varieties, to recognition and reward for conservation of varieties, to benefit sharing, to information about expected performance of a variety compensation for failure of variety to perform, availability of seeds of registered variety, free services for registration, conducting tests on varieties, legal claims under the Act, and protection from infringement.

REGISTERABLE PLANT VARIETIES IN INDIA:

  • New Varieties: A variety that has not been in the public domain in India for more than one year prior to the date of filing, or outside India for more than six years in the case of trees or vines, or in any other case for more than four years.

  • Extant Variety: An Extant Variety is a variety that has been notified under the Seed Act of 1966, a variety about which there is common knowledge, a farmer's variety, or any other variety that is in the public domain.

  • Farmer's Variety: A variety that has traditionally been cultivated and evolved by farmers in their fields, or a wild relative or land race of a variety about which farmers have common knowledge.

  •  EDV (Essentially Derived Variety).

  1. Primarily derived from such initial variety, or from a variety that is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from such initial variety's genotype or combination of genotypes.

  2. Can be distinguished from the original variety, and

  3. Is consistent with such initial variety in the expression of essential characteristics.

WHO CAN APPLY FOR REGISTRATION?

Section 16 provides that an application for registration of plant varieties under section 14 is be made by anyone of the following persons either individually or jointly with any other PERSON:

(i) any person claiming to be the breeder of the variety; or person:

(ii) any successor of the breeder of the variety; or

(iii) any person being the assignee of the breeder of the variety; or

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

(v) any person authorized to make application by any aforesaid person; or 

(vi) any university or publicly funded agricultural institution claiming to be the breeder of the variety. 'Breeder' means a person or group of persons or a farmer or group of farmers or any institution which has bred, evolved or developed any variety."

APPLICATION OF REGISTRATION:

Any person who is eligible to make an application under section 16, may make an application to the Registrar for registration of any variety-

(i) of such genera and species as specified by Central Govt. under section 29(2) or

(ii)which is an extent variety or

(iii)which is a farmer’s variety.

CRITERIA FOR REGISTRATION OF A VARIETY:

According to section 15, a new variery is registrable if it conforms to the criteria of novelty,distinctiveness, uniformity and stability. However, the criterion of novelty is dropped for the conforms to such criteria of distinctiveness, uniformity and stability.

(i) Novelty

A new variety is deemed to be novel if at the date of filing of the application for mo for protection, the propagating or harvested material of such variety has not been v otherwise disposed of by or with the consent of its breeder or his successor for the p of exploitation of such variety (i) in India, earlier than one year; or (ii) In case of trees or vines earlier than six years, or in any other case, earlier than four years,before the date of filing such application.

However, trial of a new variety which has not been sold or otherwise disposed of is not to affect the right to protection. Further, the novelty of such variety is not affected from the fet that on the date of filing the application for registration, the propagating or harve material of such variety has become a matter of common knowledge other than through the aforesaid manner. 

(ii) Distinctiveness

A new variety is deemed to be distinct if it is clearly distinguishable by at least one event characteristic from any other variety whose existence is a matter of common knowledge any country at the time of filing of the application.

The filing of an application for the granting of a breeder's right to a new variery or for entering such variety in the official register of varieties in any convention country shall be deemed to render that variety a matter of common knowledge from the date of application in case the application leads to the granting of the breeder's right or to the t of such variety in such official register, as the case may be.

(iii) Uniformity

A new variety is deemed to be 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.

 (iv) Stability

A new variety is deemed to be stable if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of such cycle. Essential characteristics mean such heritable traits of a plant variety which are determined by the expression of one or more genes of other heritable determinants that contribute to the principal features, performance or value of the plant variety."

NON-REGISTRABLE VARIETY:

A new variety is not registrable if the denomination given to such variety -

(i) is not capable of identifying such variety, or 

(ii) consists solely of figures; or

(iii) is liable to mislead or to cause confusion concerning the characteristics, value identity of such variety, or the identity of breeder of such variety, or

(iv) is not different from every denomination which designates a variety of the same botanical species or of a closely related registered species, or

(v) is likely to deceive the public identity of such variety: or cause confusion in the public regarding the identity of such variety.

(vi) is likely to hurt the religious sentiments respectively of any class or section of the citizens of India; or

(vii) is prohibited for use as a name or emblem for any of the purposes mentioned in section 3 of the Emblems and Names (Protection of Improper Use) Act, 1950; or

(viii) is comprised of solely or partly of geographical name.

 However, the Registrar may register a variety, the denomination of which comprises solely or of a geographical name, if he considers that the use of such denomination in respect of  such variety is an honest use under the circumstances of the case.

 Denomination in relation to a variety or its propagating material or essentially derived material, means the denomination of such variety or its propagating material or essentially derived variety or its propagating material, as the case maybe expressed by means of letters or a of combination of letters and figures written in any language.

 

REGISTRATION PROCESS:

1.Application

2.Examination

3.Acceptance of Application

4.Advertisement of Application in Gazette of India.

5.Certificate issuance if successful

6.Copy will be sent to the breeder of the registered variety

GROUNDS OF OPPOSITION:

Any person may give notice in writing to the Registrar of his opposition to the registration within three months from the date of the advertisement of application for registration and on payment of the prescribed fee. Opposition may be made on any of the following grounds:

 (i) that the person opposing the application is entitled to the breeder's right as against the applicant; or

 (ii) that the variety is not registrable; or

(iii) that the grant of certificate of registration may not be in public interest; or

(iv) that the variety may have adverse effect on the environment.

The Registrar shall serve a copy of the notice of opposition on the applicant for registration. The applicant is required to send a counter-statement of the grounds on which he relies for his application within two months from the receipt of notice of opposition. If he fails to do so, he shall be deemed to have abandoned his application. If the applicant sends such counter-statement, the Registrar shall serve its copy on the person giving notice of opposition.

The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he may think fit. Any evidence upon which the opponent and the applicant may rely shall be submitted to the Registrar within the prescribed time. The Registrar shall give them an opportunity of being heard, if so desired. After hearing the parties and considering the evidence, the Registrar shall decide whether and subject to what conditions or limitations, if any, the registration is to be permitted. The Registrar may take into account a ground of objection whether relied upon by the opponent or not.

The Registrar may require the applicant or opponent to give security for the cost of proceedings before him in case neither resides nor carries on business in India. Where no security is given, the Registrar may treat the opposition or application, as the case may be, as abandoned.

Duration of Protection for a Registered Variety:

  • Trees and vines – 18 years from the date of registration of the variety.

  • Extant varieties – 15 years from the date of notification of that variety by the Central Government under Seed Act, 1966.

  • Other crops – 15 years fifteen years from the date of registration of the variety.

 

EXEMPTIONS PROVIDED UNDER THE ACT:

  • Farmers Exemption: Farmer shall be entitled to produce, save, use, sow, re sow, exchange, share or sell his farm produce including seed of a variety protected under this Act.

  • Researchers Exemption: Researchers are allowed to (i) use the registered variety for conducting experiment (ii) use the variety as an initial source of variety for the purpose of creating other varieties.

 

THE RIGHTS ENJOYED BY THE OWNER OF VARIETY/BREEDER'S RIGHTS:

The owner of the protected variety has the following rights

a. To produce

b. To Sell

c. To market

d. To distribute

e. To import and

f. To export the variety.


 

REFERENCES:

BOOKS:

Intellectual Property Rights in India by V.K.Ahuja

Intellectual Property Rights Manual- Sumeet Malik

ARTICLES:

Plant variety protection by chada and chada IP

https://www.murgitroyd.com/blog/what-are-plant-variety-rights/

https://www.informea.org/en/terms/plant-variety

https://www.parkerip.com/practice-areas/plant-varieties/criteria-for-registration-variety-types/





 



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