SCHOOL OF LAW, GURU GHASIDAS UNIVERSITY

BILASPUR, CHHATTISGARH

A PROJECT OF AGRICULTURE LAW

ON
Plant Variety Protection: Condition of Registration and the
criteria evaluated by the Courts

Submitted to:

Mr. Sushil Jain

Date of submission: 14/12/2020

Submitted by:
Manish Chandrakar
16001125
Manish Chandrakar
Semester IX

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Contents
ACKNOWLEDGEMENTS................................................................................................................................3
Abstract:......................................................................................................................................................4
OBJECTIVE OF PAPER...................................................................................................................................4
CHAPTERIZATION:.......................................................................................................................................5
Introduction.................................................................................................................................................5
Types of Varieties open of Registration.......................................................................................................7
Criteria For Registration..............................................................................................................................9
Application for registration of a varieties can be made by:..................................................................9
Prerequisites for application for registration of a plant variety:.........................................................10
The duration of protection depends on the plant varieties..................................................................11
Judicial Approach.......................................................................................................................................12
Conclusion.................................................................................................................................................13
BIBLIOGRAPHY...........................................................................................................................................14

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 ACKNOWLEDGEMENTS
First and foremost, We would like to thank our course teacher Mr. Sushil Jain, Faculty,
Agriculture Law, School of Law, for allotting me this topic to work on and whose help and
assistance enabled me to move ahead with this topic.

We would like to thank our friends, who gave me their precious time for guidance and helped me
a lot in completing my project by giving their helpful suggestion and assistance. I would like to
thanks my seniors for their valuable support.

Manish Chandrakar

Plant Variety Protection: Condition of Registration and the

criteria evaluated by the Courts

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 ABSTRACT:

Inventions in agriculture and plant varieties through breeding have been one of the earliest
forms of human creativity. Plant innovation plays a quintessential role in promoting sustainable
agriculture. Plant breeding has been in practice since the dawn of agricultural societies. This
has endowed the human society with genetic pool that is diverse and qualitative new plant
varieties and seeds for agriculture and nonagricultural purposes. With new advances in plant
biotechnology, technological Innovation in plant variety is also considered essential for climate
change adaptation as among the new challenges. Agricultural biotechnology has pushed the
frontiers of research and new genetically modified (GM) crops are now available, subject to
regulations pertaining to its commercial exploitation.

Keyword: Plant variety protection, sui generis, UPOV, TRIPS, Registration, Objective

AIM OF THE PAPER:The aim of the research paper is to understand Plant Variety
Protection, Condition of Registration and the criteria evaluated by the Courts

SCOPE OF PAPER:The scope of the paper is limited only to how courts have evaluated
the criteria of protection and how several limitations and exceptions in the law are
responsible for balancing protection with price and access related issues.

OBJECTIVE OF PAPER

 To understand the nature of requirements for registration

 To understand how courts have evaluated the criteria of protection
 To understand how several limitations and exceptions in the law are responsible for
balancing protection with price and access related issues

RESEARCH QUESTIONS

 What are the Criteria for registration under Indian Law ?

 What are the Farmers Rights as per the Act?

 What are the Conditions of PVP?

 What is Benefit Sharing?

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 What is the Number of applications and registration under the Act.?

 Rights, infringement and remedies

 Exceptions and limitations to rights

RESEARCH METHODOLOGY:. It uses secondary sources of data which consist of various

website and journal relating the same

CHAPTERIZATION:

Chapter 1 deals with introduction

It deals in brief about the need and context for plants variety act in India and its objective

Chapter 2 deals with types of Variety open for registration

This chapter talks about Novel Variety, Extant Variety , Farmers Variety , Essentially derived variety.

Chapter 3 deals with Criterial of Registration under Plant Variety act

This chapter in brief deals with conditions, number of applications and registration under the act ,
benefit sharing under the act and rights and remedies

Chapter 4 deals with Criterial Evaluated by Courts

This chapter analyses the Maharashtra Seed Corporation & Monsanto v. Union of India Delhi HC

INTRODUCTION

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India is largely an agrarian economy on account of the fact that it is the Prime Moving Force and
more than fifty percent of population is dependent on agriculture for employment. India has
innovated many new technologies by way of agriculture research institutes, farmers and the
industry. Private investment and trading in knowledge associated with plant innovation is also
increasing.1 As far as technical knowledge underlying such inventions, it is susceptible of being
copied, it is generally argued that some form of property-based protection must be offered to
plant breeders. At the same time, the public good character of knowledge has presented greater
questions of the possibility of monopolistic pricing and access related issues. Historically and
even more recently intellectual property protection for plant
innovation has generated phenomenal interest on availability and access to
monopolistically priced innovative plants and seeds. The underlying theory behind intellectual
property protection is product and technology differentiation. Differentiated products and
technologies are protected so as to create incentives and to induce disclosure of inventions which
would have otherwise remained secret. Although such protection in India is available primarily
through a Sui Generis Protection of Plant Variety and Farmers Rights Act, 2001
(PVPFRA),concurrent protection may be available to a limited extent by way of patents and the
common law protection for trade secrets. Trademark law allows differentiation of brands and
hence contributes to the outer layer of protection available to plant innovation.

The legal and policy basis for plant variety protection in India has been an outcome of the WTO
- TRIPS Agreement. Much has been written about the nature of TRIPS mandate under Article
27.3(b) and the implications of providing a new set of rights to plant varieties.Suffice it is to state
that i) India decided to opt for a sui generis system for protecting plant varieties and has
excluded protection of “plants” “in whole or part thereof” and “varieties” of plants and “seeds”
from the Patents Act,1970.However, as we shall see in the discussion below, such overlaps are
not free from conceptual ambiguities. Another layer of exclusion for plant varieties in the Patents
Act pertains to exclusion of inventions based on traditional knowledge.ii) In the view of UPOV
not being mandatory and for complete lack of guidance under the TRIPS Agreement,India has
sought to balance protection of breeders by protecting certain rights of farmers.

1
http://www.icar.org.in/en/taxonomy/term/155

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Thus Plant Variety act provides protection which in turn incentivise the plant breeding activities
and it requires heavy investment and is greatly influenced by the phenomenal growth in the
sector of biotechnology.
As discussed above under International Regime, Article 27.3(b) of TRIPS says that members may
exclude plants from patentability- but requires protection for plant varieties in the form of an
‘effective’ sui generis system, or through patents or through a combination of both

TYPES OF VARIETIES OPEN OF REGISTRATION

Following are the types of variety

1. Novel Variety
2. Extant Variety
3. Farmers Variety
4. Essentially Derived Variety

Novel Variety2

a. A new variety shall be deemed to be novel, if, on the date of filing of the application, the
propagating or 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-

 In India, earlier than one year; or

 Outside India, in the 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

2
https://agritech.tnau.ac.in/patents/patents_pvpfr.html

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b. 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
that application.

c. Uniform, if it is sufficiently uniform in its essential characteristics subject to the variation

that may be expected from the particular features of its propagation.

d. Stable, if 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.

Essentially derived Variety

Essentially derived variety In respect of a variety (in this clause to be called " the initial
variety"), an 'essentially derived variety' shall be said to be essentially derived from each initial
variety when it:

(i) is predominantly derived from such initial variety, while retaining the expression of the
essential characteristics that result from the genotype or combination of genotypes of such initial
variety;

(ii) is clearly distinguishable form such initial variety; and

(iii) conforms to such initial variety in the expression of the essential characteristics that result
from the genotype or combination of genotypes of such initial variety except variation in such
characteristics which result in the process of derivation.

Farmers Variety

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Farmers Variety means means a variety

i. Has been traditionally cultivated and evolved by the farmers in their fields, or
ii. Is a wild relative or land race of a variety about which the farmers possesses the
common knowledge; where farmer means any person who cultivates crop by
cultivating the land himself or cultivates crop directly suvervising the cultivation of
land through any other person
iii. Conserves and preserves , severely or jointly, with any person any wild species or
traditional varities or adds value to such wild species or traditional varities through
selection and identification of their useful properties

Extant Variety

  It includes a variety which is:

 Notified under section 5 of Seeds Act, 1966 or
 A farmer's variety  or
 A variety about which there is common knowledge  or
 Any other variety which is in public domain

CRITERIA FOR REGISTRATION

Application for registration of a varieties can be made by:

1.  any person claiming to be the breeder of the varieties.

2.  any successor of the breeder of the varieties.
3.  any person being the assignee or the breeder of the varieties in respect of the right to
make such application.
4.  any farmer or group of farmers or community of farmers claiming to be breeder of the
varieties.
5.  any person authorized to make application on behalf of farmers and

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 6.  any university or publicly funded agricultural institution claiming to be breeder of the
varieties.
Application for registration of plant varieties can be made in the office of Registrar, Protection of
Plant Varieties and Farmers’ Rights Authority (PPV&FRA), New Delhi.

Prerequisites for application for registration of a plant variety:

 State the denomination assigned to such variety.

 Accompanied by an affidavit that variety does not contain any gene or gene sequences
involving terminator technology.
Terminator Technology- No variety of any genera or species which involves any
technology which is injurious to the life or health of the human beings, animals or
plants shall be reregistered under this act
 Contain a complete passport data of parental lines from which the variety has been
derived along with its geographical location in India and all such information relating
to the contribution, if any, of any farmer(s), village, community, institution or
organization etc. in breeding, evolving or developing the variety.
 Accompanied by characteristics of variety with description for Novelty,
Distinctiveness, Uniformity and Stability.
 Contain a declaration that the genetic material used for breeding of such variety has
been lawfully acquired.
 A breeder or other person making application for registration shall disclose the use of
genetic material conserved by any tribal or rural families for improvement of such
variety.
The PPV&FR Act, 2001 provides for exclusion of following verities from registration under
the Act:
 Where prevention of commercial exploitation of that variety is necessary to protect
public order or public morality or human, animal and plant life and health or to avoid
serious prejudice to the environment.
 Which involve any technology which is injurious to the life or health of human beings,
animals or plants such as varieties developed by terminator technology and genetic
restriction use technology.
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  Whose species or genera are not listed in the notification issued by the Central
Government.
The duration of protection depends on the plant varieties.

1. Trees and vines – 18 years

2. For other crops – 15 years.
3. For extant varieties notified – 15 years from the date of notification under section 5 of
the Seeds Act, 1966
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.

Benefit Sharing

The Indian law has provisions for benefit-sharing when farmer varieties are used in breeding. A
share of profits made from new varieties is required to be paid into the National Gene Fund. For
this to happen, farmers’ landraces need to be registered. The Indian law allows any person,
governmental or non-governmental agency to register a community’s claim and have it recorded
at an official centre.

Exceptions and limitations of Rights

Acts which are not considered infringement

i. Researcher Rights
ii. Use of Variety for research and experimental purpose allowed
iii. Use of variety as an initial for the creation for a new variety allowed
iv. Repeated use of the variety for commercial production of a new variety is not
allowed without the authorization of the breeder of the registered variety

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 JUDICIAL APPROACH
The Delhi HC, in its recent judgment in Maharashtra Hybrid Seed Co and Anr v. Union of India and Anr,
interpreted S. 15(3)(a) of Protection of Plant Varieties and Farmers’ Rights Act, 2001 (“Act”)3

Background:
petitioners impugned a common order dated 24.05.2012 passed by the Registrar, Protection of
Plant Varieties and Farmers’ Rights Authority, which held that parent lines of known hybrid
varieties cannot be registered as “new” plant varieties  under  the Act. It was held that if the
hybrid falls under the category of “extant variety” about which there is common knowledge,
then its parental lines cannot be treated as novel. 
It was not in dispute that parent lines are plant varieties within the meaning of Section 2(za) of
the Act. If the said varieties are found compliant with the conditions under Section 15 of the Act,
they will be registerable under the Act.

Relevant Provision
  “15. Registerable varieties.—(1) A  new variety shall be registered under this Act if it conforms to the criteria
of novelty, distinctiveness, uniformity and stability.
  (2) Notwithstanding anything contained in sub-section (1), an extant variety shall be registered under this Act
within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be
specified under the regulations.
(3) For the purposes of sub-sections (1) and (2) as the case may be, a new variety shall be deemed to be—

3
Maharashtra Hybrid Seed Co. vs Union Of India And Anr on 9 January, 2015

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(a)   novel, if, at the date of filing of the application for registration for protection,  the propagating  or
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—
(i)  in India, earlier than one year; or
(ii)   outside India, in the 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:
Provided that a trial of a new variety which has not been sold or otherwise disposed of shall not affect the
right to protection:
Provided further that the fact that on the date of filing the application for registration, the propagating or
harvested material of such variety has become a matter of common knowledge other than through the
aforesaid manner shall not affect the criteria of novelty for such variety;

The Delhi HC, in its recent judgment in Maharashtra Hybrid Seed Co and Anr v. Union of India
and Anr, interpreted S. 15(3)(a) of Protection of Plant Varieties and Farmers’ Rights Act, 2001
(“Act”) evergreening of PVP protection , involved a hybrid variety already registered, parental
lines involving the same cannot be further registered as a new variety The petitioners appealed
on an order passed by the Registrar, Protection of Plant Varieties and Farmers' Rights Authority
holding that parent lines of known hybrid varieties, could not be registered as "new" plant
varieties under the Protection of Plant Varieties and Farmers' Rights Act. It was held by the
registrar that if the hybrid falls under the category of extant variety about which there is common
knowledge then its parental lines cannot be treated as novel.

CONCLUSION
India is the first country which has included farmers' rights in its protection of plant varieties.
The 2001 Act provides that a farmer who has bred a new variety is entitled for registration and

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protection as a breeder of a new variety. The definition of breeder also clarifies this position by
including within the fold of breeder, farmer or group of farmers. But then also conflict and
overlapping can be between the Seed Act, PPVFR Act and the Patent 3(j) can be witnessed.

BIBLIOGRAPHY

STATUTE REFERRED

 Plants Variety Protection Act

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BOOK REFERRED

 M.K. Bhandari, Law Relating to IPR, Central Law Agency, 5th Edition, 2017

JOURNAL REFERRED

 Kochupillai, Mrinalini, India's Plant Variety Protection Law: Historical and

Implementation Perspectives (December 15, 2010). Journal of Intellectual
Property Rights, Vol. 16, No. 2, 2011. Available at
SSRN:http://ssrn.com/abstract=17802

WEBSITE REFERRED

 This website is Protection of Plant Varieties and Farmers Rights Act, 2001
Available at: http://agricoop.nic.in/PPV&FR%20Act,%202001.pdfvisited on 27
Nov 2020 at 08: 30 AM
 Thiswebsite is Guidelines
http://www.ipindia.nic.in/whats_new/biotech_Guidelines_25March2013.pdfvisite
d on 27Nov 2020 at 09: 30 AM
 This website ishttp://www.fao.org/3/y5714e/y5714e03.htmvisited on 27 Nov. 20
2020 at 11: 00 AM

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