Plant Varieties in IPR

PLANT PROTECTION ACT ( INDIA)

PPVFR act 2001

What is plant variety?Defined by the expression of the characteristics resulting from a given genotype of that plant grouping; distinguished from any other plant grouping by expression of at least one of the said characteristics; and considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation also includes propagating material of such variety, farmers variety, extant variety, transgenic variety, and essentially derived variety.

Criteria for Registration of varietyA new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity andstability.

NoveltyIf at the date of filing novel, 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

In India, earlier than one year; orOutside India, in the case of trees or vines earlier than six years, or in any other case, earlier than four years.

DistinctIt 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.

UniformityIf subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics

StableIf its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

Why a new act from UPOV?The UPOV system is not suited for developing countries because it embodies the philosophy of the industrialised nations where it was developed and where the primary goalis to protect the interests of powerful seed companies who are the breeders. In the UPOV system, rights are granted only to the breeder, there are no rights for the farmer.

A new act different from UPOVIn India the position is very different. We do not have big seed companies in essential seed sectors and our major seed producers are farmers and farmers cooperatives. Logically, our law will have to concentrate on protecting the interests of the farmer in his role as producer as well as consumer of seed

Why a new act?UPOV laws are formulated by countries which are industrial, not agricultural economies. In these countries the farming community is by and large rich and constitutes from 1 to 5% of the population. These countries do not have the large numbers of small and marginal farmers like we do.

Almost all agricultural research and plant breeding in India is financed with the taxpayers money. It is conducted in public institutions like agricultural universities and institutions of the Indian Council of Agricultural Research (ICAR). This research belongs to the public.The laws of UPOV on the other hand are formulated by societies where seed research isconducted more in the private domain than in public institutions; where big money is put into breeding using recombinant DNA technology which is expensive.

THE PROTECTION OF PLANT VARIETIES AND FARMERS RIGHTS ACT 2001 INDIA

Objectives:Protection of the rights of farmers for their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.Protection of Plant Breeders Rights to stimulate investment for research and development, both in the public and private sector for development of new plant varieties.Giving effect to Article 27.3(b)of the TRIPs Agreement.

Protection for plant varietyWho can apply?any person claiming to be the breeder of the variety;any farmers or group of farmers or community of farmers claiming to be the breeder of the variety; orany person authorized in the prescribed manner by a person specified above to make application on his behalf;any university or publicly funded agricultural university claiming to be the breeder of the variety

Seed DepositedThe breeder is required to deposit such quantity of seeds or propagating material of the registered variety in the National Gene Bank as may be specified for reproduction purposes at breeders expense.

Validity of registrationValidity of certificate of registration is nine years in case of trees and vines; and Six years in case of other crops It can be extended up to 18 years for Trees and Vines and 15 years for others

Entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including seed in the same manner as he was entitled earlier (Seeds for sale should not be branded) (essentially correspond to Farmers privilege in UPOV 78) Full disclosure of the expected performance of the Seeds or planting material by the plant breeder. Where these fail to perform in the manner claimed by the breeder, the farmer may claim compensation from the plant breeder.

Farmers Rights

ProtectionProtection against innocent infringement: Rightly assuming that farmers may unknowingly infringe Breeders Rights since they will not be used to the new situation, the law provides for protection from prosecution for innocent infringement

ProtectionProtection against bad seed:

This clause protects the farmer from spurious seed that may not deliver as promised by the seed company.

A separate Authority is to be set up to monitor such infringements.

i) reward the farmer who is engaged in the conservation and preservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and presentation.

(Similar to the concept of Farmers Rights in ITPGR)

Terminator TechnologyNo terminator technology: Breeders must to submit an affidavit thattheir variety does not contain a Gene Use Restricting Technology (GURT) or terminator technology.

Breeders Rights extend to Seeds and / or Propagating material of the protected variety to

ProductionSellingMarketing Distribution Export Import

(Similar to UPOV 91)

Breeders Rights

Infringement of Breeders RightViolation of a Breeders Right can apply to the variety itself, as well as to its packaging.

Penalties can range from Rs. 50,000 to ten lakh as well as a jail term ranging from three months to two years, depending on the severity of the damage caused. For repeated offence, fines can go upto Rs. 20 lakh and the jail term to three years.

Researchers RightResearchers Rights are recognised which grant them free and complete access to protected materials for research use in developing new varieties of plants. However, authorisation of the breeder is required whose repeated use of such variety as parental line is necessary for commercial production of such other newly developed variety. This provision in effect uses the formulation provided for in UPOV 78 for breeders exemption.

Protection of Public InterestThe legislation includes public interest clauses, like exclusion of certain varieties from protection and the grant of compulsory licensing. To safeguard public interest, certain varieties may not be registered if it is felt that prevention of commercial exploitation

For a variety registered as EDV, NGOs or individuals can claim a share of benefits that may arise from its commercialisation on behalf of any village or local community;iAny individual or NGO can make a claim on behalf of a village or local community for the contribution that they had made in the evolution of any variety registered under the Act.Amount of Compensation as determined by an Authority established under this legislation would be deposited by the breeder in the National Gene Fund)

Benefit Sharing

Priority attached to the public interest over the interests of commercial breeders;Granting of compulsory licences to ensure availability of seed /planting materials of the protected variety in reasonable price, if :three years have elapsed since the date of registration;reasonable requirements of the public for seeds or other propagating material have not been satisfied;seed/propagating material not available to the public at a reasonable price.

Compulsory Licensing