SUI GENERIS PROTECTION TO THE PLANT VARIETIES:

FARMER’S RIGHTS V. BREEDER’S RIGHTS

(Project Report towards the partial fulfilment of assessment in the subject of

Introduction to IPR)

Submitted By: Submitted To:

Devesh Bajpai Ms. Debmita Mondal
LL.M- IstTrimester Assistant professor
 DECLARATION

I, Devesh bajpai hereby declare that, the project work entitled, ‘Sui Generis Protection To The
Plant Varieties: Farmer’s Rights vs. Breeder’s Rights’ submitted to H.N.L.U., Raipur is record of
an original work done by me under the able guidance of Ms. Debmita Mondal, Assistant
Professor, H.N.L.U., Raipur.

Devesh bajpai

Roll No.17

Trimester I

25/10/2019

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 CERTIFICATE

This is to certify that the research project “Sui generis protection to the plant varieties:
Farmers Rights vs. Breeders rights” submitted by Devesh bajpai is a bonafide work which
has been carried under my supervision and has been submitted for award of any other degree.

Date: Ms. Debmita Mondal

Assistant Professor(Law)

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 ACKNOWLEDGEMENT

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty.

I would like to sincerely thank Ms. Debmita Mondal mam for giving me this topic and guiding
me throughout the project. Through this project I have learned a lot about the aforesaid topic and
this in turn has helped me grow as a student.

My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project.

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 TABLE OF CONTENT

DECLARATION...........................................................................................................................1

CERTIFICATE..............................................................................................................................2

ACKNOWLEDGEMENT............................................................................................................3

CHAPTER-1: INTRODUCTION AND RESEARCH METHODOLOGY.............................6

CHAPTER-2: WHY THE PROTECTION IS REQUIRED?...................................................9

BREEDERS RIGHTS......................................................................................................................9
FARMERS RIGHTS.....................................................................................................................11

CHAPTER-3: SUI GENERIS PROTECTION AND THE PROTECTION GRANTED

UNDER THE PATENT REGIME.............................................................................................14

CHAPTER-4: CONFLICT OF INTEREST IN THE PLANT PROTECTION....................15

CONCLUSION............................................................................................................................16

BIBLIOGRAPHY........................................................................................................................17

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 CHAPTER-1: INTRODUCTION AND RESEARCH
METHODOLOGY

Introduction:

When Britisher left India, gross domestic product rate was at 0.3% it signifies plight of Indian
state and its citizen. Largely economy based on agriculture income, which is in hand of landlord
and farmer receive meager wages. Constitution framers were aware of situation so they have
duly adopted the concept of welfare state which was facet of affirmative jurisprudence.
Constitutional obligation on state to protect right of farmer therefore several legislations were
enacted. Such as abolition of zamindari act and tax exemption on agriculture income. In 1990,
several policies were adopted to matched up Indian economy at globalize level and established
open market economy.1 TRIPS were drafted in 1995 to protect rights and provide reasonable
protection at international arena. Domestic Legislation should be in consonance with TRIPS. In
2001, law on plant varieties protection was enacted to ensure protection to farmer with respect to
informal breeding of new varieties of seed though it violates rights of real breed owner as farmer
producing seeds without due permission of right holder. This act particularly protects and ensure
that farmer can proceed in informal breed but they need to comply with certain rule and
regulation of said Act. Initiation of said practice would directly violate rights of seed breed
owner and against following norms of TRIPS. This act legalizes informal traditional breeding
practice of seed farming which is against the concept of sustainable development and might have
impact on health of individual therefore it should be curb. Economy has transited, headed toward
developed nation so protection of right of every individual is essential which could not be
curtailed in order to ensure welfare motive always, in globalization arena. Legally, India is
signatory of trips which ensure rights of breed owner therefore domestic legislation should not
against to it. TRIPS, the agreement pertaining to the market faced aspect of intellectual property
rights, came into force on 1st of January, 1995. It deals with various subject matters of the
intellectual property rights and one of them is the protection for plant varieties and its various

1
Agarwal, P. (2019). Problems with the Indian Plant Varieties Regime (V): Farmers’ Rights – A Myth or Reality
(I)?. [online] SpicyIP. Available at: https://spicyip.com/2018/10/problems-with-the-indian-plant-varieties-regime-v-
farmers-rights-a-myth-or-reality-i.html [Accessed 15 Aug. 2019].

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variables. Under Article 27 of the said agreement, it provides for the options for the protection
for the plant varieties. The options are first, the member country can opt for the protection of
these varieties under the patent act or second that they can develop their own indigenous law for
the protection of the same, but that sui generis must be in the consonance with the standards of
the TRIPS agreement. In this project topic, the authors are essentially dealing with the following
aspects of the protection of plant varieties: -

a) The importance of the protection of plant varieties,

b) Why sui generis is better protection than that of protection under patent regime,
c) The various interests involved in the protection of the said subject matter, and
d) How it deals with the conflict of those interests.

Research methodology:

1. TITLE-

“ Sui generis protection to the plant varieties: Farmers Rights vs. Breeders rights

2. RESEARCH PROBLEM-

1. What is Farmer’s Rights and Breeder’s right?

2. Why sui generis protection for plant varieties is required?

3. Why sui generis protection is better than that of under patent regime?

3. RATIONALE-

Sui generis protection provides recognition for Farmers' Rights. National sui generis

system for plant variety protection should be developed in such a way as to facilitate the
realization of Farmers’ Rights. The concept of Farmers' Rights counterbalances to a certain
extent the intellectual property rights over plant varieties.

4. OBJECTIVES-

1. To study the concept of farmers and breeder’s right.

2. To study the importance of the protection of Plant varieties under Indian regime.

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 3. To study the various interests involved in the protection of the said subject matter and
conflict of interests.

4. To study the reason behind why sui generis protection is better than that of protection
under patent regime.

5. RESEARCH DESIGN-

1. Nature and type of research:

Present research work focuses on the study of the sui generis protection to the plant
varieties. The whole proposal has been divided into various chapters. The assignment thus
provides a clear picture of the understanding of protection to farmers rights and breeders rights
Keeping in view the nature of problem analytical method has been adopted. In accordance with
relevant text books, published articles, internet data etc.

2. Sources and method of data collection:

The present source of data is through primary as well as secondary source wherein
primary sources include The Protection of Plant varieties and Farmer’s Rights Act,2001 and
various conventions and secondary sources comprise of the data collected from the Library
with the help of Books, Articles, Journals and Websites.

6. CHAPTERIZATION:

Chapter 1 – This chapter deals with the introduction of the topic and research
Methodology.

Chapter 2- This chapter deals with why the protection is required.

Chapter 3- Sui generis protection and the protection granted under the patent regime
have been discussed in this chapter.

Chapter 4- Conflict of protection in the plant protection

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 6. LIMITATION OF THE STUDY:

This research project is limited to the protection of rights of Farmers and Breeders of Plant
Varieties. The research is restricted to the study of books, statutes, articles.

7. TIME LIMIT:

The time limit for the proposed research work and bringing it towards success is
approximately 20 Days.

CHAPTER-2: WHY THE PROTECTION IS REQUIRED?

Why the protection is required in the TRIPS regime. The answer lies in the need of the
time. the current world is a world of innovation and on a daily basis, today the world has moved
from the machines to human genomes and from human genomes to developing new kind of
seeds altogether. In parity with this we see various inventions and creative ideas are thrown out
in this heavily commercialized market place. Everyone wants there own piece of share by any
means and the bigger corporations and other big players, with their economies of scale, can,
theoretically, acquire the whole market. To prevent these practices and to provide an equal and
fair chance to everybody and also to protect the conventional practices of a particular
community, the protection is required. For that matter, Indian law provides for the protection of
various players namely, 

 Breeders’ rights,
 Researchers’ rights, and
 Farmer’s rights.

Breeders Rights

The TRIPS agreement stipulates member states with their patent regime to protect the seeds and
varieties, a sui generis is a system, or a hybrid combination. Most countries do this through the

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Convention-compliant laws regarding the International Union for the Protection of New
Varieties of Plants (UPOV).

The initial impetus to form UPOV came from three European organizations: ASSINSEL, a
trading group of corporate plant breeders created to protect plant varieties; Association for the
protection of the intellectual property, (AIPPI), an organization supporting industrial patents, and
the International Chamber of Commerce. With the WTO, TRIPS Agreement, a growing amount
of trade treaties is forcing developing nations to enter UPOV and enforce their laws.2

The Members of the trade organization must come together, recognize and maintain new
varieties as intellectual property rights. The 1991 convention of UPOV gives such rights to an
individual breeder, recognized as someone who discovered, gathered or produced a fresh plant
variety, someone with legal contractual ability to produce the new plant variety, or someone with
legally hereditary rights to this category of intellectual property.3

Developing a fresh range of plants is as much an innovation as a machine or product invention.

A plant variety should therefore be considered as intellectual property, the right to benefit from it
requires legal protection. The notion of the rights of plant breeders (PBR) originated in
developed countries where private firms played a significant role in plant breeding studies, seed
manufacturing and marketing. PBR is the right given to a plant breeder or proprietor of a variety
to exclude others from creating or marketing the propagating material of that variety for 15-20
years and to exclude others from unlawful commercial use of that variety.

A distinctive element of this Act of 2001 is that it gives breeders, farmers and society three
simultaneous privileges, the details of which are provided in this section.

Section 28(1) provides is Breeders Rights. Under the above said act when the variety get
“certificate of registration” shall provides to the breeder exclusive right to market, sale,
distribute, export or import for the term of fifteen or eighteen years depending upon the variety
of registered crop. The aforementioned acts are regarded as breeders ' rights u / s 64 in the PPV
& FR Act being violated.

2
Byrne, N. (1991). Legal protection of plant varieties. 3rd ed. Macmillan Academic and Professional, p.3.
3
Luca Leone, Lost in Translation: The EU Law Reform of Organic Farming, 13 EUR. FOOD & FEED L. REV. 421,
436 (2018).

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 1- The person who sells, manufacture, export or import the registered variety without the
permission of registered breeder without having the registered license or registered agent
leads to infringement.
2- If an individual utilizes, sells, imports, exports or generates any other range that gives
such range, the denomination would be similar or identically similar to the sect of a
variety that has already been registered under this law in such a manner as to create
confusion in the minds of particular individuals in defining the registered range.4

Farmers Rights

The presumption for farmers ‘rights are the rights of' indigenous farmers,' as those who,
according to custom, mainly use' traditional' methods without modern industrial agriculture. This
involves' native' farmers who predate outsiders ' invasion. The Biological Diversity Convention
relates to' indigenous and local groups embodying traditional lifestyles,' which may not be
understood by invaders to cultivate techniques. Varieties of folk crops are the main indicators for
this type of farming. Due to their lengthy participation in the development and management of
these resources, indigenous farmers have expressed claims to traditional crop genetic resources.5

Indigenous farmers are experimenting with contemporary crop varieties, adopting them as they
demonstrate local adaptation, cultural importance and enhanced yield. The FAO defines the
rights of farmers as' rights derived from previous, present and future contributions of farmers to
the conservation, improvement and availability of plant genetic resources, especially those in the
centers of origin / diversity. The International Community has these privileges as trustees for
current and future generations of farmers. There seems to be growing international agreement
that the rights of farmers are human rights as well as rights of intellectual property.6

The World Organization for Intellectual Property (WIPO) has been studying the application of
customary laws to traditional knowledge that generates privileges for farmers. Studies by the
Food and Agriculture Organization have in part found that recognizing and protecting customary
land rights is a critical element of defending indigenous land rights.7
4
verkey, e. (2007). law of plant varieties protection. 1st ed. eastern book company, p.149.
5
ibid
6
ibid
7
See note 3

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In section 39(iv) of the Farmers ' Rights chapter, the right to sell seed – including protected seed
– has lastly been granted The farmer shall be considered to be entitled to save, utilize, sow,
resow, transfer, share or sell his farm produce, including seed of a variety protected under this
Act, in the same way as he was entitled to before this Act came into force.8

1- Access to seed: Farmers are entitled to save, sow, use, re-sow, transfer, share or sell their
agricultural products, including seed of protected varieties, in the same way as they were
entitled to before the PPVFR Act came into force. Farmers do not, however, have the
right to sell branded seed of a variety protected by this Act. The Act does not indicate the
amount of seed that farmers can save from a protected variety from a crop grown in their
own farms.
2- Benefit Sharing: All Indian legal entities that provide PGR to breeders for the
emergence of new varieties, including farmers, will receive a fair share of the benefits of
the registered varieties ' commercial gains. The PPVFR Act is the first of all national
plant variety protection laws enacted since 2001 to incorporate a provision for access and
benefit-sharing (ABS) with PBRs
3- Compensation: The seed which is registered necessarily be sold under recommended
management circumstances with full disclosure of its agronomic performance. If such
seed is sold to farmers but does not provide the anticipated output under recommended
circumstances of leadership, the farmer may claim compensation from the breeder
through the PPVFR Authority office.
4- Reasonable Seed Price: Farmers have the right at a sensible cost to access seed of
registered varieties. If this condition is not met, the exclusive right of the breeder over the
variety is suspended under the compulsory licensing clause and the breeder is obliged to
license a qualified legal entity to produce, distribute and sell the seed of the variety. Most
PVP regulations have clauses on mandatory licensing of protected varieties to guarantee
appropriate supply of seed to farmers, and several of them also use unfair pricing as basis
for mandatory licensing.9
5- Farmer’s recognition and reward for contributing to conservation: Farmers involved
in conservation and crop enhancement of PGR and who made significant contributions to
8
Sahai S. (2002) India’s Plant Variety Protection and Farmers’ Rights Legislation. In: Drahos P., Mayne R.
(eds) Global Intellectual Property Rights. Palgrave Macmillan, London
9
ravi, s. (n.d.). Farmer’s rights, their scope and legal protection in India. p.5.

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 the provision of genetic resources for crop enhancement receive recognition and benefits
from the domestic gene fund. The gene fund gets funds from implementing the Act,
complemented by contributions from domestic and foreign organizations. The fund's
expenditure is allocated to promote the conservation and sustainable use of PGR and can
thus be regarded as a domestic equivalent to the worldwide benefit-sharing fund.
6- Registration of farmer varieties: The Indian PPVFR Act enables for the registration of
current farmers ' varieties that meet distinction, uniformity, stability and denomination
criteria, but does not include that of novelty. This right gives farmers a one-off chance for
a restricted period of time from the moment a plant species is included for registering in
the crop portfolio under the PPVFR Act. Once registered, all PBRs are eligible for these
variants.
7- Prior authorization for the commercialization of essentially derived varieties: When
a third party uses the varieties of farmers, whether existing or new, as the source material
for the development of an essentially derived variety, the farmers must give prior
authorization for marketing it. Such a process may enable farmers to negotiate
authorization terms with the breeder, including royalties, one-off payments, benefit
sharing, etc.
8- Exemption from registration fees for farmer’s: Under the PPVFR Act, farmers have
the privilege of being totally exempt from paying any charges or other payments usually
payable for variety registration; testing for distinction, uniformity and stability (DUS) and
other services rendered by the PPVFR Authority; as well as for infringement or other
legal proceedings.
9- Farmer’s protection from accidental infringement: If a farmer can somehow prove
before the court that at the time of an infringement on any such rights he or she was not
aware of the existence of any rights, as detailed in the PPVFR Act, he or she will not be
charged. This provision is produced in account of the farmer's centuries-old unrestrained
rights over the seed of all varieties, the novel nature of the PPVFR Act, and the farmers '
low legal literacy.10

10
See 9

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 So aforesaid tells us about the various players of the protection in the plant variety
protection. the Act tries to establish the balance between the protection provided to each
player in the market. 

CHAPTER-3: SUI GENERIS PROTECTION AND THE PROTECTION

GRANTED UNDER THE PATENT REGIME

As we have discussed earlier the protection can be provided in two ways one is through the
development of a sui generis law for that matter and the other is protected under the patent law
regime. so now we shall into the protection standards of these two systems and then
we analyze which one is better than the other. So, let's have a first look towards the protection of
plant varieties under the patent regime. Under patent regime the threshold for the registration and
getting protection is quite high, the applicant has to prove the novelty of the invention, the
inventive step involved into the invention and the industrial application of the subjected
invention. Now imagine a situation wherein the applicant developed a whole new breed of a
variety. The threshold of novelty was achieved the moment the discovered the new breed, the
characteristics of that breed is different from the existing seeds, so novelty criteria is
fulfilled. now the second threshold inventive step, this can also be proved by the research and
experiments done on the part of the applicant and something non-obvious has been achieved.
now the problem starts at the third step, at the industrial step, the invention can only
be utilized when the result in every case is more or less is same, this is not possible or nearly
impossible in the case of plant varieties, because the plant cells are nothing but a living organism
so its behavior cannot be really determined.

Then there is this second option the sui generis protection. The sui generis model obviously takes
into account the various needs and requirements of the member state. Countries like India are
mainly an agrarian state and more than anything else is needed to save its farmers and their
practices from the outside world. Taking all these things into considerations Indian legislature
went on adding a chapter in the legislation named as farmers rights this has huge implications.
First, nowhere in the world, the farmer's rights are protected. Second, the protection given by the
Indian Act is not a normal protection it is more than that, it entrenched the rights and activities of

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the farmers up to that extent where if they innocently breach any of the breeders right then they
would not be penalized for that, they just have to prove that they did it innocently.
It would not have been possible without the sui generis protection of the plant varieties. however
in the practice it has been shown that the farmers are basically not aware of
these intellectual property rights and if they are not equipped with enough resources so that they
can cope with the required technology and taking that thing into account one can majorly put out
an argument that that this sui generis protection to the farmers tends out to be of little value in
the practice, but the authors want to make an argument here that it is alright to say that they have
no or less value regarding the protection of their interests in the plant protection but it will
always be open to them in this sui generis model that they can at any time, if only they get to
know about these rights and facilitated about the production so that economies of scale can be
maintained, seek protection under this regime of protection unlike the patent regime where they
have to fulfil the highest thresholds of protection and proving.11
Hence it can be concluded that when it comes to the protection sui generis model is far better
than that of protection under the patent regime.

CHAPTER-4: CONFLICT OF INTEREST IN THE PLANT PROTECTION

Like the authors have already mentioned about the various protections granted in the Act. It also
leads to the conflicts of their interests this can be illustrated through an example. So, in
the Indian Act, the farmers have been given very overarching protection, so what a farmer can
do, he can purchase the seeds from the breeder and then sown it in the fields and produces a
yield. Of that yield, he can further create new seeds or he can turn that whole crop into the seed
and then mix it with some other seeds, very informally, and after doing all of this they can even
sell it, however, they can sell it without any brand name. For this, they need not to any
permission from anyone. What is important here is that if they are found to be an infringer of
the breeder's Intellectual property rights then they have to prove that they did this mistake
innocently and that's it, they are out of the situation. 12what's at stake here is the economic rights
of the breeders because it seems only unfair that they invested a huge sum of money in
11
See 4
Agarwal, P. (2019). The ‘Farmers’ Rights’ Law Lays the IPR Trap. [online] SpicyIP. Available at:
12

https://spicyip.com/2019/04/the-farmers-rights-law-lays-the-ipr-trap.html [Accessed 16 Aug. 2019].

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developing and nurturing the new variety altogether and the farmer does nothing but took the
medicine and add some informal tricks to it can sell it in the market. One can arrive at a proper
solution by the collaboration of seed companies and the farmers through this collaboration the
seed companies not only get the informal tactics of the farmer but also saves itself from the
effective economic loss, whereas the farmer can effectively produce his crop in agreement with
the breeders of seeds. This will necessarily create a cost-efficient and very less friction entailed
system.13

CONCLUSION

India has conceded and ratified the TRIPS agreement and as per the mandates of the agreement,
it legislated a sui generis law for the protection of the plant varieties and farmers' rights. The aim
of this legislation is to create an effective system for the protection of plant varieties and strike a
balance between the rights of breeders with that of rights of the farmers, but in doing so, it seems
that the act tilted much in the favour of the farmers, as we have discussed earlier, which can
effectively take India to the doors of WTO dispute settlement mechanism. To avoid this the
effective remedy is to seek and bring the lost balance back, it can happen through the awareness
amongst the farmers and also a partnership between farmers and breeders. If at all these can be
achieved, then the aim of legislators can effectively be harnessed. 

13
Agarwal, P. (2019). Problems with the Indian Plant Varieties Regime (II): Helping Seed Companies at the Cost of
the Farmer?. [online] SpicyIP. Available at: https://spicyip.com/2018/07/problems-with-the-indian-plant-varieties-
regime-ii-helping-seed-companies-at-the-cost-of-the-farmer.html [Accessed 17 Aug. 2019].

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 BIBLIOGRAPHY

1- Bandyopadhyay and Saurabh Bindal- Intellectual Property Law – An Introduction, Eastern

Book Company, Lucknow, 2015

2- Biswajit Dhar- Sui Generis System for Plant Variety Protection Options under
TRIPS,2002, Quaker House, Geneva.

3- Elizabeth Verkey-‘Law of Plant Varieties Protection’Eastern Book Company, Lucknow,

2007

4- Shaila Seshia- Plant Varieties Protection and Farmers’ Rights in India,

5- The Indian Patents Act 1970

6- Protection of Plant Varieties and Farmers’ Rights Act, 2001

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