PLANT VARIETY PROTECTION AND TRIPS OBLIGATION: AN OVERVIEW

WRITTEN ASSIGNMENT

Submitted to

MADHUSUDHAN LAW UNIVERSITY

For partial fulfilment of 1st semester

MASTER OF LAW (LLM)

Submitted By:

Siddhi Tripathy

Roll NO:1111022020

DHENKANAL LAW COLLEGE

 DECLARATION

I declare that this dissertation titled, “PLANT VARIETY PROTECTION AND THE TRIPS
OBLIGATION: AN OVERVIEW”, researched and submitted by me to the Mdhusudhan Law
University in partial fulfilment of 1st semester of LLM is an original, bona-fide and legitimate
work and it has been pursued for an academic interest. This work or any type thereof has not
been submitted by me or anyone else for the award of another degree of either this university
or any other University.

Date: Siddhi Tripathy

Place: Dhenkanal Roll No:1111022020

 ACKNOWLEDGEMENT

I would further extend my deep felt gratitude to all the faculties of Dhenkanal Law College
for their constant encouragement.

I would also like to thank the library staff for the support rendered in collecting and
compiling material for this research.

Siddhi Tripathy
 PLANT VARIETY PROTECTION AND TRIPS OBLIGATION: AN OVERVIEW

ABSTRACT

The plant variety protection is a right which is related to Intellectual Property rights over
plant varieties which provides exclusive commercial rights for a specific period to right
holders. TRIPs (Trade Related Aspects of Intellectual Property Rights) Agreement which
Article 27(3)(b) create obligation on the all WTO member-states to introduce these
protections through municipal legislation by certain set time frames. But this article provides
option to member-States for protection of plant variety either they can protect by patents or
they can by an effective sui-generis protection or both. These rights imposed on the
developing countries and they must frame the law upon these obligations in their municipal
laws; and these laws relating to plant variety protection created issue of industrial patents on
biodiversity. From the legal perspective, the issue is still existing related to plant variety
protection although India adopted the UPOV convention with TRIPs Agreement and enacted
act regarding plant variety protection; ‘The Protection of Plant Varieties and Farmers’ Rights
Act, 2001’ compliance with TRIPs Agreement.

KEYWORDS: PVP, Breeders’ Right, TRIPs, Farmers’ Right.

INTRODUCTION:

Plants are the product of nature and the traditional technique to generate new plant varieties
have been used for hundreds of years. It was only recently that newer way of including
desirable features of plants have been rewarded through Intellectual Property rights. But there
is an idea that some forms of knowledge can easily be copied. In these cases, the person or
the legal entity who have not contributed to the development of the particular invention
would be in a position to benefit from the fruits of the invention of no exclusive right was
offered to the inventor.

From the ancient time in India policies for plant variety protection and the seeds depended on
the principle of common heritage of mankind. After the independence the government of
India adopted a system that largely confined to public sector because India was facing food
security issues after independence. So, government did not want to create monopoly in the
area of agriculture. So, govt. provided seeds through its own firms and provided these on very
cheap price to farmers.
In agriculture field inventiveness was traditionally based on the sharing of biological
resources and related knowledge among farmers in most part of world. In 20th century the
agriculture sector become very less important economically for the many developed countries
and the many governments started to push back their involvement in the development and the
supply of the seeds to the farmers. This led to open the area for the development of more and
more private industries in the market of the seeds. Private firms represented themselves as the
inventors and got the patent right in seeds and plant varieties. But there are some issues
occurs while giving the patent for the plant varieties.

1. To opposed in the principle to the introduction of patents on the life forms.

2. Opposition for what was perceived as the progressive privatization of seeds
which had been traditionally exchange by farmers.
3. There were significant opposition form advocates of the patent system who
saw a new plant variety as more like an improvement of an existing product
of nature than as a scientific invention.

UPOV CONVENTION:

The International Union for the Protection of New Varieties of Plants. The headquarter of
UPOV established in Geneva (Switzerland). The main objective of UPOV is to provide and
promote a very effective system of plant variety protection and encourage for the
development of new varieties of plants for the betterment of the society. The UPOV provides
legal, administration and technical basis for international cooperation in plant varieties
protection. The UPOV also assists the states and organisations to development of a better
legislation and implement the better framework for the plant variety protection. UPOV also
organised some program for the awareness about the plant variety protection. PBR (Plant
Breeder’s Rights) was introduced into plant variety protection by the UPOV which revised in
1972, 1978, and 1991. UPOV suggested the countries for the protection of plant variety by
granting patents or by suigeneris system or by the combination of patents & sui-generis
system. India adopted all the methods in their municipal law for the plant variety protection
and added farmer’s rights in its municipal law.

FLEXIBILITIES UNDER THE TRIPS AGREEMENT:

In India, the plant variety protection is an output of TRIPs obligations; TRIPs create
obligations on the member-states to adopt these intellectual property rights in their local laws
for the protection of IP rights. TRIPs obligations are very strict in nature and these are not
providing any relaxations to member-states, but it provides some exceptions and flexibilities
for the plant variety protection. Art. 27(3)(b) provides some flexibilities to all the member-
states against the strict obligation on the plant variety protection by providing options to
member- states to protect these IP rights by issuing patents or by sui-generis system or the
combination of these ways. The option of suigeneris provided by the TRIPs agreement is an
alternative option against the patents system for the plant varieties as it provides flexibilities
to the developing countries to frame or design best legal framework which can fit their
circumstances and meet their goals and the objectives.

Sui-generis system described by TRIPs agreement was very necessary because developing
countries had some concerns:

1. They have to implement all these international obligations in the same

manner at the national level which bis very hard for a developing country.
2. The TRIPs agreement is just like a set of international obligations have to
run concurrently with several others, especially in the context of food
security related Intellectual Property Rights.
So, the option of sui-generis method for the plant varieties protection is became very
important and advantageous because it opposed the patent regime in plant varieties protection
(PVPs).

PLANT VARIETIES PROTECTION LAW IN INDIA:

In India, the protection of plant varieties laws was not subject of Intellectual Property of law
before coming the TRIPs Agreement enforce. Article 27.3(b) of the TRIPs agreement which
provides the member states to make laws on plant varieties protection by patent or by sui
generis or by both way of protection, on these obligations the Parliament of India made an
Act PPVFR Act in 2002, which deals with the plant varieties protection as well as protection
farmers’ rights and breeders’ rights. This Act deals the protection of varieties: the extant
varieties, new varieties, essentially derived varieties, and farmers’ varieties.

OBJECTIVES OF ACT:

There are some objectives of Act which are following:

1. Investment for R&D in public and private sectors for development of new
 plant varieties through ensuring returns on such investment.
2. By domestic and foreign investment ensure the promotion and the growth of
the seed industry.
3. Role of the farmers: a cultivator, a conserver, and the contribution of tribal
communities in agriculture; for their contribution providing reward them
through benefit sharing and protection of their transitional rights.
The protection of the plant varieties under the Act only by PBRs. The registration of new
plant varieties derived in the Act; it can be registered if the new variety fulfil the conditions
of novelty, distinctiveness, uniformity, and stability. The registration of essentially derived
varieties also permitted by the Act. The essential criteria for the registration of essentially
derived varieties are same as the criteria of the new varieties.

Time period of registration also described in the Act that is the validity of the registration for
trees and vines is 9 years which can be renew up to 18 years and for other crops is 6 years
which can be renewed up to 15 years. These rights come with the duty that is the breeder or
any other person who is entitled to produce, sell and market the seeds of the registered variety
has the duty to make such seed or that material which is registered available to farmers ‘in a
timely manner’ to satisfy their requirements and will be available at reasonable price in the
market.

The criteria of registration may be liberal in the case of registration of extant variety and
farmers’ variety there is not any need of novelty and other registration conditions will be
applicable which described under DUS guidelines.

PROTECTION OF FARMERS’ RIGHTS:

The PPVFR Act drafted for the protection of the breeders’ rights but later the farmers’ rights
are added in the Act that means the Act provides all the same rights to the farmers which are
given to breeders. The definition of breeder in the Act includes the term farmer also so, all
rights also transferred to farmers. But DUS requirements can only fulfilled with the
educational knowledge about plant variety protection. In India, the application fee for the
registration of plant variety is high in the context of farmers so only investors and researchers
apply for the registration of plant variety protection. A smaller number of applications filed
by the farmers for the plant variety protection.
The Act provides some liberty to the farmers while filling an application for the plant variety
registration or seed registration. Several provisions in the Act which directly or indirectly
recognise specific rights of, or grant entitlement to, farmers and farmers’ community:

1. The Plant Variety Protection & Farmers Rights Act provides right to
farmers to register the plant variety, and farmers are not compelled to follow
the same procedure of registration which follows for the new varieties.
2. Farmers have right to sow, resow, use, save, exchange, sell or share farm
produce in the same manner as they were entitled to sell prior of the Act.
These rights include sell of seed although that seed variety is protected but it
is not including sell of seed of branded variety.
3. If the farmers preserved and improved the genetic material is used in
developing new variety, the farmers may be entailed to get reward and the
recognition. PPVFR authority introduces two awards, first is Plant Genome
Saviour Community Award; and second is Plant Genome Saviour Farmer
Reward and Recognition, that
4. Farmers are entitled to the breeder 's compensation if the variety they have
purchased does not fulfil the breeder's disclosure.
5. If such violation is innocent, farmers shall be exempt from infringement
proceedings. It is an absence from UPOV since not UPOV 1978 or UPOV
1991 acknowledge the rights of farmers.

RESTRICTION ON REGISTRATION:

The PPVFR Act retains some power to limit the scope of registration with the government.
Only those genera or species which are notified by the government can be registered. In
addition, registration may be refused if it is 'needed to protect public order and public moral
principles or human, animal and plant life and health or to avoid serious harm to the
environment' for commercial utilization of such a variety.

DISCLOSURE OF INFORMATION AND BENEFIT SHARING

The requirement for disclosure is another notable feature of the PPVFR Act. This obliges the
breeder to disclose information on the utilization by tribal and rural families of all genetic
materials used by the breeder in the development of the new species. If such information is
not disclosed, the registration request will be rejected. In the absence of information
communication, it would be extremely difficult to implement the requirement to
communicate information in close relation to the benefit sharing mechanism envisaged in the
PPVFR Act.

The PPVFR Law provides that the commercial breeder must share with farmers or traditional
rural communities that have contributed to the development of the species the benefits
resulting from the registration of the variety. The division of advantages is designed for
monetary purposes. In terms of the extent and nature of the use of the claimant's genetic
material in development of a new species and the commercial utility and demand for a new
species, the amounts to be paid in benefit sharing will be determined. Such money shall be
deposited in the National Gene Fund, as well as other payments received by the PPVFR
Authority, to implement the benefit sharing mechanism including plant genetic resource
conservations measures.

COMPULSORY LICENSE:

Upon request of any person, the competent authority shall grant a compulsory licence in
respect of a registered new uniform plant variety for reasons of public interest, particularly
when the reasonable requirements of the public for seed or other propagating material of the
variety have not been satisfied, a high proportion of the propagating material is being
imported, or the seed or other propagating material of the variety is not available to the public
at a reasonable price.

A compulsory licence shall also be granted when the right holder refuses to license it to a
third party on reasonable terms and conditions or engages in anti-competitive practices.

The right holder shall provide the necessary seeds or propagating material to the person to
whom a compulsory licence has been issued. The right holder shall receive an equitable
remuneration, to be determined by the competent authority, taking into account the reasons
for the grant of the compulsory licence, the value of the authorization and the importance of
the diffusion of the variety for food security. The right holder shall have the right to appeal
any final decision granting a compulsory licence. However, the appeal shall not suspend the
execution of the compulsory licence. The UPOV Convention allows for the restriction of the
breeder’s right of a protected variety for reasons of public interest. National laws may
determine on an illustrative basis when the circumstances that may justify a restriction to the
breeder's right arise. Compulsory licences aim at allowing third parties to use-against
payment of an ‘equitable remuneration’- a protected uniform variety without the
authorization of the right holder. There is ample flexibility to provide for the grounds and
conditions for these compulsory licences. Article 31 of the TRIPS Agreement does not apply,
as it only deals with patent-related compulsory licences.

VARIETY DENOMINATION:

Every applicant shall assign a single and distinct denomination to a variety in respect of
which the applicant is seeking registration. The denomination must enable the variety to be
identified. It may not consist solely of figures except where this is an established practice for
designating varieties for certain crops, regions, or localities. It must not be liable to mislead
or to cause confusion concerning the characteristics, value, or identity of the variety or the
identity of the applicant. In particular, it must be different from every denomination which
designates an existing variety, including unregistered traditional farmers’ varieties, of the
same plant species or of a closely related species.

The denomination of the variety shall be submitted to the competent authority. If it is found
that the denomination does not satisfy the requirements of this article, the authority shall
refuse to register it and shall require the applicant to propose another denomination within a
prescribed period. The denomination shall be registered by the authority at the same time as
the variety.

CONCLUSION & SUGGESTIONS:

In India, the Plant Variety Act is not the only legislative instrument of relevance in India in
the field of plant variety protection. There are at least two other Acts which are related. The
first is the Patents Act 1970. There is in principle a clear distinction between the two since the
Patents Act specifically prohibits the patentability of plant varieties. The PPVFR Act
showcases that farmers’ and breeders’ rights can be adequately and concurrently protected
under a single piece of legislation so as to take care of the interests of both the stakeholders
and despite its significant difference from the UPOV model which primarily focuses on
breeders’ rights. In a country such as India, ensuring food security by providing farmers’
rights is important for economic stability. The PPVFR Act is exemplary in its ability to
capitalize on the flexibilities in the TRIPS Agreement. India should now work on eliminating
a few of the loopholes in the PPVFR Act.
There should be an amendment in the PPVFR Act related to established proper relationship in
Patents Act and PPVFR Act. Thie Farmers’ Rights can only be availed by them when they
will aware about these rights. A very few numbers of farmers know about these rights which
are described in the Act. The application fees for the farmers’ can be exempted because they
didn’t get such profit like the breeders.
REFERENCES:

1. Archana K, International Journal of Scientific & Engineering

Research, Volume 4, Issue 5, May-2013 visited at 2nd June 2020.

2. Koonan Sujith, 2014, India's Sui Generis System of Plant Variety Protection.

3. Commission on Intellectual Property Rights (CIPR), ‘Integrating

Intellectual Property Rights and Development Policy’ (2002),
available at http://www.iprcommission.org.
4. Narasimhan, Savita Mullapudi, ‘Towards a Balanced “Sui Generis”
Plant Variety Regime: Guidelines to Establish a National PVP Law
and an Understanding of TRIPS-plus Aspects of Plant Rights’
(2008), United Nations Development Programme.
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