Awareness Course on

Intellectual Property
Rights
UNIT 5 INDIAN LAW ON PROTECTION OF
PLANT VARIETIES
Structure

5.1 Introduction
Objectives
5.2 What is a Plant Variety?
5.3 Registration of Plant Variety
5.4 Effect of Registration
5.5 Varieties Excluded from Registration and Reciprocal Protection
5.6 Surrender and Revocation of Registration
5.7 Farmers’ Rights
5.8 Compulsory Licence
5.9 Infringement
5.10 Offences and Penalties
5.11 Summary
5.12 Answers and Hints to SAQs

5.1 INTRODUCTION

Plants occurring or developed within a country are invaluable national resources.

Farmers contribute in conserving, improving and making available plant genetic
resources for developing new plant varieties. Plant breeders play a pioneering role in
the development of new varieties. It is therefore necessary to protect plant varieties
as also the rights of farmers and plant breeders to stimulate investment in research and
development related to new plant varieties. This makes high quality seeds and plant
material available to growers and gives a general boost to the growth and development
of agriculture in the country. Putting in place an effective system of protection of plant
varieties and rights of farmers and plant breeders is also incumbent on India in view of
its ratification of the Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS), under the World Trade Organisation (WTO).

In view of the importance of protecting the rights of farmers and plant breeders, an
inter-governmental organization called International Union for Protection of New
Varieties of Plants (UPOV) is established by the International Convention for
Protection of New Varieties of Plants. This convention was adopted in 1961 and came
in force in August 1968. It was revised in 1972, 1978 and 1991. UPOV has its
headquarters at Geneva. As on November 10, 2003, 54 states were members of
UPOV. India is not among them.

The Indian Parliament, in November 2001, passed The Protection of Plant Varieties
and Farmers’ Rights Act (PPVFRA) referred to simply as the Act in the following
text. It is a sui generis law that gives due consideration to farmers rights vis-à-vis
plant variety protection. Sui Generis means the only one of its kind. In the context of
intellectual property rights (IPR) it means a right which is derived from itself, or
which is not a part of the patent system. The Act introduces interesting approaches to
farmers’ rights and has adapted some provisions of UPOV to the Indian context.
Indian economy is largely agriculture based where contributions of both the farming
communities and private breeders with significant investments in R&D are recognized
to be important.

The Act proposes to establish an Authority to be known as the Protection of Plant

Varieties and Farmers’ Rights Authority. It shall, among other things, maintain at
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its head office a National Register of Plant Varieties. However, the Act has not yet
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been given effect to. Once it becomes effective, it will herald a new era of plant Protection of Plant
related intellectual property rights required in India. Varieties

Objectives

After studying this unit, you should be able to:

• define variety;
• state the criteria for new plant variety to be registered for protection;
• explain what are non-registerable varieties;
• list the details to be furnished along with the application for registration;
• state the periods of validity of protection in different cases;
• list the rights afforded by registration of a plant variety;
• explain the cases where registration is not allowed;
• explain what are farmers’ rights;
• explain the situations when compulsory licence is issued; and
• understand what amounts to infringement.

5.2 WHAT IS A PLANT VARIETY?

The Act does not define a plant variety, but defines variety to mean a plant grouping
except micro-organism within a single botanical taxon of the lowest known rank,
which can be

• 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;
• considered as a unit with regard to its suitability for being propagated, which
remains unchanged after such propagation; and
• it also includes propagating material of such variety, farmers’ variety, extant
variety, transgenic variety, and essentially derived variety.

A Farmers’ variety means a variety which

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 possess the
common knowledge.

An Extant variety means a variety available in India, which is

i) notified by the Central Government, where it deems it necessary or expedient to

regulate the quality of seed to be sold for the purposes of agriculture under the
provisions of the Seeds Act, 1966 (54 of 1966); or
ii) a farmers’ variety; or
iii) a variety about which there is common knowledge; or
iv) any other variety which is in public domain.

A plant variety is said to be essentially derived from an initial variety when it

i) is predominantly derived from such initial variety, or from a variety that itself is
predominantly derived from such initial variety, while retaining the expression of
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Awareness Course on the essential characteristics that result from the genotype or combination of
Intellectual Property
Rights
genotypes of such initial variety. The genotype of an individual is the sum total
of all genes the individual has received from the parents and is capable of
transmitting to progeny;

ii) is clearly distinguishable from such initial variety; and

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

Spend SAQ 1
2 min.
Which of the following is the purpose of registering the new plant varieties? Why?

a) To ensure continuous supply of new varieties by safeguarding the interests of the

plant breeder.

b) To ensure that the supply of seeds remains pure and uncorrupted.

5.3 REGISTRATION OF PLANT VARIETY

Criteria for Protection

A new plant variety shall be protected by registration if it is novel, distinct, uniform

and stable.

Novel: A new variety shall be deemed to be novel if at the date of filing of

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 the
breeder, for the purposes of exploitation of such variety (a) in India, for more that
one year or (b) outside India in the case of trees or vines, earlier than 6 years or, in any
other case, earlier than four years.

However, a trial of a new variety, which has not been sold or otherwise disposed of to
others, shall not affect the right to protection. Further, the fact that on the date of filing
of the application the propagating material or harvested material of such variety has
become a matter of common knowledge other than through the aforesaid manner shall
not affect the criterion of novelty.

The filing of an application for the granting of a breeder’s right to a new variety or for
entering such variety in the official register of varieties in any convention country
renders the said variety a matter of common knowledge from the date of the
application, in case, the application is filed before the granting of the breeder’s right
or to the entry of such variety in such official register, as the case may be.

Distinct: A new variety shall be deemed to be distinct if it is clearly distinguishable

by at least one essential characteristic from any commonly known variety.

The description of distinctiveness under the Act is quite similar to the claims in a
patent specification which distinguishes the applicant’s invention from the prior art.
The reference to common knowledge as the yardstick to measure distinctiveness under
this Act is similar to notion of prior art in the patent law. However there is no
requirement similar to the inventive step necessary to patent an invention under the
Act.

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Uniform: The new variety shall be deemed to be uniform if, subject to the variation Protection of Plant
that may be expected from the particular features of its propagation, it is sufficiently Varieties
uniform in its essential characteristics. What is required from a breeder is a degree of
uniformity in its essential characteristics and not the requirement of absolute identity
of all plants belonging to the new variety.

Stable: A new variety shall be 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 each such cycle. The requirement of stability means that a
variety must remain true to its description/character even after repeated propagation.

Non-registrable Varieties

A new variety shall not be registered if the denomination given to such variety

• is not capable of identifying such variety; or

• consists solely of figures; or
• 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
• is not different from every denomination which designates a variety of the same
botanical species or of a closely related species registered under this Act; or
• if it is likely to hurt the religious sentiments of any section of the citizens of India;
or
• is prohibited for use as a name or emblem for any of the purposes mentioned in
the Emblems and Names (Protection of Improper Use) Act, 1950; or
• is comprised solely or partly of geographical name.

However, in the case of a geographical name the Registrar may register a variety, if
satisfied that such denomination is an honest use under the circumstances of the case.

Procedure for Registration

Who can apply for registration?

An application for registration can be made either individually or jointly with any
other person by following:

• person claiming to be the breeder of the variety or his successor or assignee;

• a farmer or a group of farmers claiming to be the breeder of the variety;
• any person authorised by any of the persons specified above to make application
on their behalf;
• any university or publicly funded agricultural institution claiming to be the
breeder of the variety.

Under the Act 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.

The variety for which registration is sought must be one which is a farmers’ variety;
or an extant variety; or of such genera or species as the Central Government may
specify by notification in the official Gazette other than the farmers’ varieties and the
extant varieties.

Form of application
An application for registration of a variety must be filled in prescribed proforma. It
must be in respect of a variety, must state the denomination assigned to the variety
and must be accompanied by an affidavit stating that such variety does not contain
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Awareness Course on any gene or gene sequence involving terminator technology. It must further contain a
Intellectual Property
Rights
complete passport data of the parental lines from which the variety has been derived
along with the geographical location in India from where the genetic material was
taken. The application must also be accompanied by a statement containing a brief
description of the variety bringing out its characteristics of novelty, distinctiveness,
uniformity and stability. The application must contain a declaration that the genetic
material or parental material acquired for breeding, evolving or developing the variety
has been lawfully acquired.

The application for registration of a variety must be accompanied with prescribed fees
and enough quantity of seeds of the said variety for the purpose of conducting tests to
evaluate whether seeds along with parental material conform to the specified
standards.

Acceptance and Advertisement of Registration Application

The Registrar may accept the application absolutely or with limitations on being
satisfied about the particulars contained in such application. If the Registrar is
satisfied that the application does not comply with the requirements of this Act, the
application may be either rejected by him or the applicant may be required to amend
the application to the satisfaction of the Registrar. However, the Registrar cannot
reject the application for registration without affording an opportunity to the applicant
to defend the case.

Once the application for registration of a plant variety is accepted, the Registrar will
advertise the application with limitations, if any, and the specifications of the variety
including its photographs or drawing in the prescribed manner for calling objections
from the persons interested in the matter.

Opposition to the Acceptance

After the advertisement of acceptance, within three months from the date of the
advertisement, any person, on payment of the prescribed fees, may give notice of
opposition to Registration, in writing, to the Registrar. The grounds for opposition
may be any of the following:

• the person opposing the application is entitled to the breeder’s right as against the
applicant; or
• the variety is not registrable under this Act; or
• the grant of certificate of registration may not be in public interest; or
• the variety may have adverse effect on the environment.

The Registrar is empowered to pass an order upholding or rejecting the application by

giving reasons for the same after considering all the grounds on which the application
has been opposed.

Registration and Term of Protection

Once the application for registration of a variety, other than an essentially derived
variety, has been accepted with or without opposition, the Registrar shall register the
variety; issue a certificate of registration to the applicant sealed with the seal of the
Registrar.

The 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 breeder’s expense.

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The period of validity of certificate of registration is nine years in case of trees and Protection of Plant
vines; and six years in case of other crops. Varieties

This validity period can be reviewed and renewed on payment of the prescribed fees
subject to a maximum period of validity, which is

• in case of tree and vines, eighteen years from the date of registration of the
variety;
• in the case of extant varieties, fifteen years from the date of notification of that
variety by the Central Government under Section 5 of the Seeds Act, 1966; and
• in other cases, fifteen years from the date of registration of the variety.

Registration of Essentially Derived Variety

The procedure for registration of an essentially derived variety is different from that of
a variety. However, the provisions as to who can make an application for registration
and the manner of making application are similar to that for a variety. The application
will be accompanied by the prescribed documents and fees and shall be made to the
Registrar, who on being satisfied about the compliance of the requirements specified,
shall forward the application with his report and all the relevant documents to the
Authority. The Authority has to get such essentially derived variety examined by
conducting the prescribed tests and following the prescribed procedure so as to
determine whether the essentially derived variety is a variety derived from the initial
variety. On being satisfied in the matter, it will direct the Registrar to register such
essentially derived variety. However, if the Authority is not satisfied on the report of
the test that the essentially derived variety has been derived from the initial variety, it
shall refuse the registration application. An essentially derived variety shall be
registered only if it satisfies the requirements of novelty, distinctiveness, uniformity
and stability. After registration, the Registrar will issue a certificate of registration to
the applicant in the prescribed form sealed with the seal of the Registry and send a
copy of it to the Authority.

5.4 EFFECT OF REGISTRATION

Breeder’s Rights

The certificate of registration issued by the Registrar in respect of a variety confers on

the breeder or his successor, agent or licensee, an exclusive right to sell, market,
distribute, import or export the variety subject to the provisions of the Act. However,
in case of an extant variety, unless a breeder or his successor establishes his right, the
Central Government, or the State Government shall be the owner of such right.

A breeder of a registered variety can authorise any person to produce, sell, market or
otherwise deal with the variety registered under this Act. The person so authorised
will apply to the Registrar, for registering his title and the Registrar on proof of the
title to his satisfaction, register him as an agent or a licensee in the register and issue a
certificate of registration to the applicant. The registered agent or registered licensee
shall not have a right to transfer such right further.

Researcher’s Rights

The Act permits the use of any registered variety for purpose of conducting
experiment or research and for using the said variety as an initial source of variety for
creating other variety. But where the repeated use of such variety as a parental line is
necessary for commercial production of such other newly developed variety, the
authorisation of the breeder of the registered variety is required.
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Awareness Course on Rights of Communities
Intellectual Property
Rights
If the people of any village or local community have contributed in the evolution of
any variety then any person, group of persons or any governmental or non-
governmental organisation may on behalf of that village or local community file any
claim attributable to the contribution of the people of that village or local community.
The Authority, after making necessary enquiry, if satisfied, will grant compensation to
the applicant, which shall be deposited by the breeder of the variety in the National
Gene Fund, which is constituted under this Act.

Benefit Sharing

Benefit sharing, in the context of registered variety, means the proportion of the
benefit accruing to the breeder of such variety for which a claimant shall be entitled.
The Authority will determine it.

Where the breeder makes use of the genetic material registered in the name of various
persons in the development or creation of a new variety, such persons can claim a
share in the benefits accruing to the breeder as a result of commercial exploitation of
the new variety. In determining the benefit sharing of the claimant, the Authority will
take into consideration the extent and nature of the use of genetic material of the
claimant in the development of the new variety and the commercial utility and
demand in the market of the variety in respect of which benefit sharing has been
claimed. The breeder of such variety shall deposit the amount of benefit sharing so
determined by the Authority in the prescribed manner in the National Gene Fund.

Spend SAQ 2
2 min.
Which of the following actions could the holder of breeders’ rights not prevent?

a) The import of seeds into country.

b) The use of the plant to breed new variety of plant.
c) The harvesting of seeds for resale.

5.5 VARIETIES EXCLUDED FROM REGISTRATION

AND RECIPROCAL PROTECTION

Certain plant varieties are excluded from the ambit of registration. These pertain to
cases where prevention of commercial exploitation of a 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. Also, variety of any genera or species which
involves any technology, which is injurious to the life or health of human beings,
animals or plants including genetic use restriction technology (GURT) and terminator
technology are not registered under this Act.

If a citizen of India is not accorded by any country, specified in the official Gazette by
the Central Government, similar rights with respect to registration and protection of a
variety as it accords to its own nationals, a national of such country will not be entitled
to apply for registration of a variety in India.

5.6 SURRENDER AND REVOCATION OF

REGISTRATION

A breeder of a variety registered under the Act can make an offer to surrender the
certificate of registration to the Registrar in the prescribed manner. The Registrar will
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registered licensee. Any agent or licensee opposed to such surrender, will give notice Protection of Plant
of opposition to the Registrar, who will in turn intimate to the breeder and after Varieties
hearing both the applicant and the opponents, the Registrar may revoke the certificate
of registration.

The protection granted to a breeder in respect of a variety can be revoked on the

application of any person interested on any of the following grounds:

• the grant has been made to a person who is not eligible for it;
• the grant has been based on incorrect information furnished by the applicant;
• the breeder did not provide the information as required;
• the breeder has failed to provide an alternative denomination of the variety in case
where the earlier denomination of such variety provided to the Registrar is not
permissible for registration;
• the breeder did not provide the necessary seeds or propagating material to the
person to whom compulsory license has been issued;
• the grant of certificate of registration is not in the public interest.

5.7 FARMERS’ RIGHTS

Under the Act the term farmer has a specific meaning. A farmer is any person who
cultivates crops either by cultivating the land himself, or by directly supervising the
cultivation of land through any other persons. A farmer can also mean any person who
conserves and preserves any wild species or traditional varieties, or adds values to
them through selection and identification of their useful properties.

A farmer who has bred or developed a new variety will be entitled for registration and
other protection in the like manner as a breeder of a variety. A farmers’ variety shall
also be entitled for registration. A farmer who is engaged in the conservation of
genetic resources of land races and wild relatives of economic plants and their
improvement through selection and preservation will be entitled for recognition and
reward from the National Gene Fund. The National Gene Fund is to be constituted by
the Central Government under the Act. The Corpus of the Gene Fund will be made up
from the benefit sharing with the breeders, the loyalty of annual fee received by the
Authority from the breeders, any compensation payable by the breeder under the
Rights of Communities, and any contributions to the fund made by different sources.

The farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or
sell his farm produce including seed of a protected variety. However, he shall not be
entitled to sell branded seed of a variety protected under this Act.

5.8 COMPULSORY LICENCE

Any person can apply to the Authority for a compulsory licence, after the expiry of
three years from the date of issue of certificate of registration of a variety on the
ground that the reasonable requirements of the public for seeds or other propagating
material have not been satisfied or that the seed or other propagating material of the
variety is not available to the public at a reasonable price and he is interested to
undertake production, distribution and sale of the seed or other propagating material
of that variety. The Authority gives an opportunity to the breeder of such variety to
file opposition, and hears both the parties. If the authority is then satisfied that the
reasonable requirements of the public with respect to the variety have not been
satisfied or that the variety is not available to the public at a reasonable price, it may
order the breeder to grant a licence to the applicant.

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Awareness Course on To determine whether the requirement of public may be deemed not to have been
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Rights
satisfied, the Authority shall take into account:

• the nature of the variety, the time which has elapsed since the grant of the
certificate of registration of the variety and the measures taken by the breeder or
any registered licensee of the variety to meet the requirement of the public; and
• the capacity, ability and technical competence of the applicant to produce and
market the variety to meet the requirement of the public.

The duration of compulsory licence cannot exceed the remaining period of protection
of the said variety. When a compulsory licence is granted the authority shall make
available to the licensee the reproductive material of the concerned variety.

5.9 INFRINGEMENT
If a person, who is not the breeder of a registered variety or the registered agent or
licensee of the breeder, sells, exports, imports or produces such variety without the
permission of the breeder or licensee/agent of the breeder, the person infringes the
right established under the Act. The right is also infringed if an unauthorized person
uses, sells, exports, imports or produces any other variety giving such variety the
denomination identical with or deceptively similar to the denomination of a variety
registered under the Act, which may cause confusion in the mind of general public in
identifying the variety.
A suit for infringement will be instituted in a District Court having jurisdiction to try
the suit.
A court can grant relief in the case of infringement. The relief can be in the form of an
injunction and either damages or a share of the profits at the option of the plaintiff.

5.10 OFFENCES AND PENALTIES

A person other than the breeder shall be held liable for prosecution if he applies the
denomination of a registered variety or applies false denomination to a variety.
The penalties imposed under the Act are as follows:
Penalty for applying false denomination
A person shall be punishable with imprisonment for a term of minimum three months
and a maximum of two years, or with a fine of minimum Rs.50,000/- and a maximum
of Rs.5 lakhs, or with both if he applies any false denomination to a variety or
indicates the false name of a country or place or false name and address of the breeder
of the variety registered.
Penalty for selling varieties to which false denomination is applied
The punishment is a term of imprisonment from six months to two years or a fine of
rupees fifty thousand to rupees five lakh, or both.
Penalty for falsely representing a variety as registered
It is imprisonment for six months to three years, or fine of rupees one lakh to five
lakh, or both a prison term and a fine.
Penalty for subsequent offence
A person who has been convicted once for an offence under the Act faces heavy
punishment for a second and every subsequent such offence: imprisonment for one to
three years or a fine of two to twenty lakh rupees or both.
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Protection of Plant
The provisions of the Act have the overriding effect. If there is anything in any other Varieties
law in force, which may not be consistent with the provisions of this Act, the Act will
prevail.

5.11 SUMMARY

• Indian Parliament passed the protection of Plant Varieties and Farmers’ Rights
Act (PPVFR) in November 2001.

• It is sui generis law providing due consideration to farmers’ rights vis-à-vis plant
variety protection.

• The variety is defined by the expression of the characteristics resulting from a

genotype of that plant grouping. It should be distinguished from any other plant
grouping by expression of at least one of the said characteristics.

• Farmers’ variety is one which is traditionally cultivated and evolved in fields by

the farmers.

• The criterion for a variety to be registered under the Act is that it should be novel,
distinct, uniform and stable.

• Period of validity of certificate of registration is 9 years (extendable up to 18

years) in case of trees and vines, and 6 years (extendable up to 15 years) in case of
other crops.

• The registration affords rights to farmers’ breeders, researchers & communities.

• If the variety is not satisfactorily available to public, the Government can issue
compulsory licence.

• The infringement can occur if a variety is sold, exported, imported or produced

without the permission of the breeder of the registered variety; or his agent, or
deceptive denomination is applied to the goods.

• The penalty for infringement can be an injunction and damages or share of profit
at the option of the plaintiff.

5.12 ANSWERS AND HINTS TO SAQs

SAQ 1

(a) ; (b) is related to quality control of the production of the seeds and plants.

SAQ 2

The researchers’ right allows use of registered variety for breeding a new variety.

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