DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC YEAR: 2023-24

FARMERS AND BREEDERS RIGHTS

RESEARCH PROJECT ON

Analysis of protection for plant Varieties & farmers Rights In The Context
Of Intellectual Property Regime In India

SUBMISSION TO – SUBMISSION BY –

Prof. Bhanu Pratap Singh Jyoti Gautam

Assistant Professor (Law) B.A. LL.B. (Hons.) Sem 9th

Dr. RMLNLU, Lucknow Enrollment no. 190101074

 ACKNOWLEDGEMENTS

I would like to express my special thanks of gratitude to my Professor Bhanu Pratap Singh gave
me the golden opportunity to do this wonderful project on the topic Analysis of protection for
plant Varieties & farmers Rights In The Context Of Intellectual Property Regime In India,
which also helped me in doing a lot of Research and i came to know about so many new things I
am really thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.
Table Of Contents

 Introduction…………………………………………………………………...
 A Brief History Of The Protection Of Plant Varieties And Farmers’ Rights
Legislation…………………………………………………………………….
 TRIPS Agreement related to agriculture……………………………………...
 Criteria For Registration Of A Variety……………………………………….
o Novel
o Distinct
o Uniform
o Stable
 Types Of Varieties……………………………………………………………
o New Variety
o Extant variety
o Farmer’s Variety
 Persons Who Can Apply For the Registration Of Plant Variety……………..
 Filing Requirements For The Registration Of A Plant Variety………………
 Certificate Of Registration……………………………………………………
 Duration For Registration……………………………………………………..
 Exemptions Provided By The Act…………………………………………….
 Infringement………………………………………………………………….
 Varieties Open For Registration At The Moment…………………………….
 UPOV…………………………………………………………………………
 Farmers' rights………………………………………………………………...
 Exemption from fees………………………………………………………….
 Protection against innocent infringement……………………………………..
 Compulsory licensing…………………………………………………………
 DUS testing…………………………………………………………………...
 Why India should not join UPOV ?..................................................................
 CoFaB,a developing country alternative to UPOV………………………….
 Conclusion……………………………………………………………………
Introduction
This article explores how proprietary claims to plant genetic resources (PGRs) are asserted and
constructed in drafting India’s Protection of Plant Varieties and Farmers’ Rights legislation.
These claims have assumed significance, particularly during the past two decades, at the global,
national, and local levels. Globally, they are articulated in multilateral trade negotiations and
institutions -- most notably through Article 27.3(b) of the Agreement on Trade Related Aspects
of Intellectual Property (TRIPs), through the concept of plant variety protection (PVP). But
increasingly proprietary claims to PGRS have also been articulated within global environmental
and agricultural arenas, through the International Undertaking on Plant Genetic Resources (IU)
and the Convention on Biological Diversity (CBD). Nationally, countries and regional blocs
have, independently and in response to international obligations, introduced legislative initiatives
to formalise proprietary claims to PGRs by instituting systems of intellectual property rights
(IPRs). Local initiatives, also abundant, are often directed at strengthening the claims of
indigenous and local communities to PGRs through the creation of community IPRs and
biodiversity registers.

Indian legislation takes up the issue of proprietary claims to PGRs through the Protection of
Plant Varieties and Farmers’ Rights Bill, which was passed by Parliament in the autumn of 2001.
The Bill establishes two ways through which proprietary claims to PGRs may be made. First, it
creates a system of Plant Breeders’ Rights (PBRs) that confers on the holder an exclusive right of
ownership of a plant variety for a specified period of time. Second, the Bill introduces the
concept of Farmers’ Rights to counter-balance Breeders’ Rights and address the issue of farmers’
proprietary claims to plant varieties. If the impacts of the Bill on India’s agriculture sector are to
be fully discerned, it is important to locate the Bill in the politicoeconomic context in which it
emerged and analyse the process through which it came to establish PBRs and Farmers’ Rights
as legal mechanisms for asserting proprietary claims to plant varieties.

India has ratified the TRIPS agreement and to give effect to this agreement, The Protection of
Plant Varieties and Farmers Rights Act, 2001 (PPV&FRA) was enacted.

The main aim of this Act is to establish an effective system for the protection of plant varieties
and, the rights of the breeders and to encourage the development of new varieties of plants.

Any variety that fulfills the DUS criteria and that is "new" (in the market) is eligible for this kind
of protection, and there is no need to demonstrate an inventive step or industrial application, as
required under a patent regime.

A DUS examination involves growing the candidate variety together with the most similar
varieties of common knowledge, usually for at least two seasons, and recording a comprehensive
set of morphological (and in some cases agronomic) descriptors.
Plant varieties present in wilderness cannot be registered, under PPV&FR Authority. However,
any traditionally cultivated plant variety which has undergone the process of domestication /
improvement through human interventions can be registered and protected subjected to
fulfillment of the eligible criteria.

A Brief History Of The Protection Of Plant Varieties And Farmers’ Rights

Legislation
The process of drafting the Protection of Plant Varieties and Farmers’ Rights Bill lasted more
than 10 years and generated a considerable amount of public debate and controversy. The first
initiatives taken to develop Indian legislation on PVP occurred in the late 1980s. The first draft
of the Bill was produced in 1993 by the Ministry of Agriculture, the nodal Ministry throughout
the Bill’s development. Three drafts have since followed, in 1997, 1999, and 2000, although
only the latter two were introduced in Parliament.

TRIPS Agreement related to agriculture

Article 273 of the TRIPs Agreement states that all qualifying inventions in all fields of
technology, whether products or processes, shall be eligible for patents.1

Article 27.3 of TRIPS allows members to exclude from patentability, plants and animals other
than micro-organism, and essentially biological processes for the production of plants and
animals other than nanobiological and microbiological processes2. This actually means that:

• All types of genes can be patented as long as an inventive step has been involved to
identify, isolate, modify and/or transfer them. Plants and their offspring containing
patented genes, and possibly the entire transformed plant may be protected. Plant related
inventions which are considered against the moral order may not have protection.
• Plants found in the wild and other land races cannot be protected under an IPR system, as
they do not meet the requirements for protection.
• Plant varieties and inbred lines may be patentable or protected under an effective sui
generis system. Members of the WTO can, in principle, design this system. Members
have to provide protection for plant varieties either through patents or effective sui
generis3 system or combination thereof. Thus, TRIPS offers three options for protection
of plant varieties:
1. Not to exclude plant varieties from patentability.
2. To exclude plant varieties from patentability and grant sui generis rights for the
protection of plant varieties.
3. Provide protection to plant varieties through patents and sui generis system.

1
TRIPS Agreement art 27, sec 5
2
TRIPS Agreement art 27.3 (b)
3
Latin for ‘unique’ or ‘of its ownkind’.
Criteria For Registration Of A Variety:

Novel:If at the date of filing an application for registration for protection, the propagating or
harvested material of such variety has not been sold or otherwise disposed of 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.

Distinct:A variety is said to be distinct if it is clearly distinguishable by atleast one essential

characteristic from any other variety whose existence is a matter of common knowledge in any
country at the time of filing an application.

Uniform:A variety is said to be uniform, if subject to the variation that may be expected from
the particular features of its propagation it is sufficiently uniform its essential characteristics.

Stable:A variety is said 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.

Types Of Varieties

New Variety:A new variety can be registered under the Act if it conforms to the criteria for novelty,
distinctiveness, uniformity and stability.

Extant variety: An extant variety can be registered under the Act if it conforms to the criteria
for distinctiveness, uniformity and stability. Thus novelty is not considered while going for the
protection of plant varieties.

The PPV&FRAu/s 2 (j) (iii) and (iv) defines extant variety as any variety "which is in public
domain or about which there is a common knowledge.

Farmers' Variety: Under section 2 (l) farmers variety means a variety "which has been
traditionally cultivated and evolved by the farmers in their fields".

Persons Who Can Apply For the Registration Of Plant Variety

Application for registration of a variety can be made by:

1. Any person claiming to be the breeder of the variety;

2. Any successor of the breeder of the variety;
 3. Any person being the assignee or the breeder of the variety 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
variety;
5. Any person authorized to make application on behalf of farmers and
6. any University or publicly funded agricultural institution claiming to be breeder of the
variety.

Filing Requirements For The Registration Of A Plant Variety

 Name, address and Nationality of Applicants as well as the address of service of their
agent.
 Denomination assigned to such variety.
 Accompanied by an affidavit that variety does not contain any gene or gene sequences
involving terminator technology.
 Complete passport data of parental lines 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.
 Characteristics of variety with description for Novelty, Distinctiveness, Uniformity and
Stability.
 A declaration that the genetic material used for breeding of such variety has been
lawfully acquired.

Certificate Of Registration
The maximum time taken for issuing certificate of registration is three years from the date of filing of the
application for registration of a plant variety.

Duration For Registration

 For trees and vines (Perennials)- 18 years from the date of registration of the variety.
 For other crops (Annuals) – 15 years from the date of registration of the variety.
 For extant varieties – 15 years fromthe date of notification of that variety by the Central
Government under section 5 of the Seeds Act, 1966.

Exemptions Provided By The Act

 Farmers' Exemption: Farmer shall be entitled to produce, save, use, sow, resow,
exchange, share or sell his farm produce including seed of a variety protected under this
Act.
 Researcher's Exemption: (i) the use of registered variety for conducting experiment. (ii)
the use of variety as an initial source of variety for the purpose of creating other
varieties.

Infringement
Following acts may be a case of infringement under the PPV&FRAct:

 If a person who is not a breeder of a variety registered under this act or a registered agent or a
registered licensee of that variety, sells, exports, imports or produces such variety without the
permission of its breeder or within the scope of a registered license or registered agency without
their permission of the registered license or registered agent.
 If a 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 already
registered under this act in such a way that it causes confusion in the mind of general people in
identifying the registered variety.

Varieties Open For Registration At The Moment:

 Black Gram
 Bread Wheat
 Cotton(Tetraploid)
 Cotton(Diploid)
 Chickpea
 Field Pee/Green gram
 Jute
 French Bean
 Lentil
 Maize
 Pearl Millet
 Pigeon pea
 Rice
 Sorghum
 Small Cardamom
 Sugarcane
 Turmeric
 Ginger
 Black pepper
 Indian Mustard
 Rapeseed
 Sunflower
 Safflower
 Castor
 Sesame
 Line seed
 Ground nut
 Soyabean
 Chrysanthemum

UPOV

UPOV is an abbreviation of Union pour la Protection des ObtentiousVegetals (Union for

protection of new varieties of plant). It is an international convention which provides a common
basis for the examination of plant varieties in different member States of UPOV for determining
whether a plant variety merits protection under UPOV or not. The convention has undergone
revisions in 1972, 1978 and 1991 and has as on today 53-member states.4

Farmers' rights
In response to the developed countries’ insistence on excluding IPR – protected plant varieties
from application of the common heritage principle, the “Farmers’ Rights” concept was included
in the Undertaking from 1989.5

In case of UPOV 1991, the farmer's right to save the seeds for subsequent use is actually
forbidden and is conditional upon 'legitimate' interests of the breeders, i.e. the royalty that should
be paid to the breeder. The Indian PVP Act goes beyond allowing the farmers this privilege since
it explicitly recognizes community and farmers rights by including a specific clause on the
subject. Nothing shall affect the right of a farmer to save, use exchange, share or sell his farm
produce of a protected variety except in case where the sale is for the purpose of reproduction
under commercial marketing arrangement (Ch. VII, section 31). The Farmers' right also include
the rights arising from conserving, improving and making available the genetic resources.
However, the concept of farmers' rights suffers from the weakness that at present no
internationally accepted instrument exists which can address problems such as who should be
compensated, how, with how much and for precisely what.6

Officially “Farmers’ Rights” is an attempt to acknowledge, “the contribution farmers have made
to the conservation and development of plant genetic resources, which constitute the basis of
plant production throughout the world.”7

Exemption from fees

Further protecting farmers from the new set of provisions being put in place, the Act stipulates
that if farmers wish to examine documents and papers or receive copies of rules and decisions
made by the various authorities, they will be exempt from paying any fees. Such fees would be
payable by all other people wanting to examine documents and receive copies of decisions from
the National Authority, the Registrar, the Tribunal and various other committees.

Protection against innocent infringement

4
UPOV has 38 member states of which 29 are parties to 1978 Act and 8 are parties to the 1991 Act; See
http://www.upov.int/en/about/members/index.htm
5
CPGR Resolution 5/89 defines farmers’ rights Available at http://www.fao.org/ag/cgrfa/IU.htm
6
As per Article 28,Treaty enters into force 90 days after deposit of the fortieth instrument of
ratification, acceptance, approval or accession. http://www.fao.org/legal/TREATIES/033s-e.htm

7
Refer Halewood, M. Indigenous and local knowledge in International Law: a preface to sui
generis intellectual property protection. McGill Law Journal 44:953-996, 1999.
The law has also attempted to address a concern voiced by several quarters, that when the new
system of Plant Breeders Rights is imposed for the first time, there may be cases of unknowing
infringement of Breeders Rights. Section 43 specifies that the farmer can not be prosecuted for
infringement of rights specified in the Act if he can prove in court that he was unaware of the
existence of such a right.

So if the farmer uses the registered name of the breeder informally, while selling seed, he is
protected if it can be shown that he did not know that there was a new law in place which places
some restrictions on his traditional rights, including the right to sell seeds.

Compulsory licensing

At any time after the expiry of three years after registration of a variety, any person may apply to
the Authority alleging that the reasonable requirements of the public for seeds or other
propagating material of the variety have either not been satisfied or unavailable at a reasonable
price and request for grant of compulsory license to produce, distribute and sell the seed or other
propagating material of a variety. (Ch. X, section 41-49).

DUS testing
There are certain requirements for making a variety eligible for protection. The variety must be
distinct, uniform and stable (DUS).

There are certain requirements for making a variety eligible for protection. The variety must be
distinct, uniform and stable (DUS). The variety must have a denomination and must be novel.
For being novel, the variety should not have been sold (offered for sale) or marketed earlier than
one year for the country and four years for other countries where protection is desired. In the
case of trees and wines it is six years.

For being distinct the variety should be clearly distinguishable from any other variety of common
knowledge. The variety shall be deemed to be sufficiently uniform (homogeneous) if, subject to
the variation that may be expected from the particular features of it propagation, it is sufficiently
uniform in its relevant characteristics. The variety shall be deemed to be stable if its relevant
(essential) characteristics remain unchanged after, repeated propagation or, in the case of a
particular cycle of propagation or, in the case of a particular cycle of propagation, at the end o f
each cycle.

In India for DUS testing, we need to set up centres, which can carry out these tests. Crop-wise
standardization of field testing parameters and table of characteristics for DUS testing needs to
be worked out. Location for testing needs to be identified. We should undertake collection of
reference varieties and other varieties as standard for phenotypic expression of a character. A
database for different plant species for the different characteristics must be developed. Storage
facilities will have to be created for storing the plant varieties. We need to create lead Centres for
facilitating DUS testing including development of appropriate technology using morphological,
biochemical and molecular markers.
A National research centre for DNA fingerprinting which is set up at National Bureau of Plant
Genetic Resources (NBPGR), New Delhi can help in the identification of a plant variety using
molecular markers. We need to identify and strengthen more centres for DUS testing.

A comparison of salient features of UPOV Acts of 1978 and 1991 with those of the PPVFRA
Act will also be presented.8

Why India should not join UPOV ?

Gene Campaign opposes India joining UPOV because UPOV does not address our needs and
because its working is totally alien to the conditions of agriculture prevailing in the countries of
the south. We believe that developing countries must create their own platform which will grant
apart from Breeders Rights, also Farmers Rights and be geared to work towards food and
nutritional security in our countries. There is no concept of Farmers Rights in the UPOV system,
rights are granted only to the breeder which in today's context are the seed companies.

 The UPOV system is not suited for developing countries because it embodies the
philosophy of the industrialized nations where it was developed and where the primary
goal is to protect the interests of powerful seed companies who are the breeders. In the
UPOV system, rights are granted only to the breeder, there are no rights for the farmer.
In India the position is very different. We do not have big seed companies in essential
seed sectors and our major seed producers are farmers and farmers cooperatives.
Logically, our law will have to concentrate on protecting the interests of the farmer in his
role as producer as well as consumer of seed.
 Once we are in the system, we shall be forced to go in the direction that UPOV goes. It is
a system headed towards outright patents. It permits dual protection of varieties, in the
UPOV system, the same variety can be protected by Plant Breeders Right (PBR) and
patents. Starting with its first amendment in 1978 when limited restrictions were placed
on protected seed, the 1991 amendment brought in very strong protection for the plant
breeder. In this version, breeders are not exempt from royalty payments for breeding
work and the exemption for farmers to save seed has become provisional.
 UPOV laws are formulated by countries which are industrial, not agricultural economies.
In these countries the farming community is by and large rich and constitutes from 1 to
5% of the population. These countries do not have the large numbers of small and
marginal farmers like we do.
 UPOV laws are framed in countries with a completely different agriculture profile to
ours. These are countries where subsidy to agriculture is of a very high order unlike
India. Because they produce a massive food surplus, farmers in industrialised countries
get paid for leaving their fields fallow. The UPOV system does not have to protect the
farming community of Europe in the way that our seed law will have to protect ours.

8
Supra 4
  In the industrialised nations agriculture is a purely commercial activity. For the majority
of Indian farmers however, it is a livelihood. These farmers are the very people who
have nurtured and conserved genetic resources. The same genetic resources that breeders
want to corner under Breeders Rights. We must protect the rights of our farmers and
these rights must be stated unambiguously in our sui generis legislation.
 Almost all agricultural research and plant breeding in India is financed with the taxpayers
money. It is conducted in public institutions like agricultural universities and institutions
of the Indian Council of Agricultural Research (ICAR). This research belongs to the
public.The laws of UPOV on the other hand are formulated by societies where seed
research is conducted more in the private domain than in public institutions; where big
money is put into breeding using recombinant DNA technology which is expensive.
Because they invest in expensive breeding methods and need to secure returns on their
investments, seed companies in Europe seek market control through strong IPRS. These
conditions do not apply in India.
 The UPOV system is far too expensive. The costs of testing, approval and acquiring an
UPOV authorised Breeders Right certificate could be in thousands, even lakhs. Such
rates will effectively preclude the participation of all but the largest seed companies.
There certainly will be no space in such a system for small companies, farmers co-
operatives or farmer/breeders.

Farmers play a significant role as breeders of new varieties. They often release very successful
varieties by crossing and selection from their fields. These varieties are released for use as such.
In addition, in almost all cases, these varieties are taken up by agriculture universities as
breeding material for producing other varieties. Such farmer/breeders would not be able to
participate in an expensive system like UPOV.

Their material along with their labour and innovation would be misappropriated by those with
the money to translate such valuable germplasm into money-spinning varieties registered in
UPOV. Poor farmers unable to pay the costs of getting an UPOV certificate, would tend to sell
their varieties for small sums to larger seed companies. This will be the ultimate irony, creating
an institution that will snatch away from the farmer his material and his opportunities.

CoFaB,a developing country alternative to UPOV

Gene Campaign along with Centre for Environment and Agriculture Development, has drafted
an alternative treaty to UPOV to provide a forum for developing countries to implement their
Farmers and Breeders Rights. This treaty s called the Convention of Farmers and Breeders,
CoFaB for short. CoFaB has an agenda that is appropriate for developing countries. It reflects
their strengths and their vulnerabilities and it seeks to secure their interests in agriculture and
fulfil the food and nutritional security goals of their people.

Unlike the provisions of the UPOV, the CoFaB treaty seeks to fulfil the following goals :
  Provide reliable, good quality seeds to the small and large farmer
 Maintain genetic diversity in the field.
 Provide for breeders of new varieties to have protection for their varieties in the market,
without prejudice to public interest .
 Acknowledge the enormous contribution of farmers to the identification, maintenance
and refinement of germplasm.
 Acknowledge the role of farmers as creators of land races and traditional varieties which
form the foundation of agriculture and modern plant breeding.
 Emphasise that the countries of the tropics are germplasm owning countries and the
primary source of agricultural varieties.
 Develop a system wherein farmers and breeders have recognition and rights accruing
from their respective contribution to the creation of new varieties .

Conclusion
Hence, the regulations/guideline was not complied according to the developing countries,
therefore India didin’t opt. the UPOV. UPOV was effective for the developed countries because
it protects the right ofpowerful seed companies who are the breeders but do not protect the
interest of Farmers. And India is mainly dependent upon the farmers instead of giant companies.

Therefore, The UNDP Human Development Report (HDR) 1999 has commended Gene
Campaign’s Convention of Farmers and Breeders (CoFaB) as an alternative to UPOV.
Describing CoFaB as a “strong and coordinated international proposal which offers developing
countries an alternative to following European legislation by focusing legislation on needs to
protect farmers’ rights to save and reuse seed and to fulfil the food and nutritional security goals
of their people.”Gene Campaign’s purpose in drafting an alternative to UPOV was to provide the
basis for a discussion on what kind of non- UPOV platform developing countries should have.
Once there is a comprehensive analysis and critique and consensus emerges among developing
countries, it will not take long to come up with a minimum operational framework with which to
start.

Ultimately, with the enfluence of CoFaB ( Convention of Farmers and Breeders ) India made the
seperate act for the protection of plant varieties & farmers which is known as “The Protection Of
Plant Varieties And Farmers Rights Act, 2001.
Annotated Bibliography

1. TRIPS Agreement art 27, sec 5.

States that” patents shall be available for any inventions, whether product or process, in all fields of
technology provided that they are new, involve an inventive step, and are capable of industrial
application”.

2. TRIPS Agreement art 27.3 (b)

states that “Members may exclude from patentability plants and animals other than microorganisms, and
essentially biological processes for production of plants and animals other than non-biological processes”.
However, it obliges member countries “to provide for the protection of plant varieties either by patents or
by an effective sui generis system or by any combination thereof. ”

3. Sui Generis -Latin for ‘unique’ or ‘of its ownkind’.

Sui Generis statutes exist in many countries that extend intellectual property protection to matter that does
not meet characteristic definitions: integrated circuit layouts, ship hull designs, fashion designs in France,
databases, or plant varieties require sui generis statutes because of their unique characteristics.

4. UPOV has 38 member states of which 29 are parties to 1978 Act and 8 are parties to the 1991
Act; See http://www.upov.int/en/about/members/index.htm

UPOV is an abbreviation of Union pour la Protection des ObtentiousVegetals (Union for protection of
new varieties of plant). It is an international convention which provides a commonbasis for the
examination of plant varieties in different member States of UPOV for determining whether a plant
variety merits protection under UPOV or not.

5. CPGR Resolution 5/89 defines farmers’ rights Available at http://www.fao.org/ag/cgrfa/IU.htm

In response to the developed countries’ insistence on excluding IPR – protected plant varieties
from application of the common heritage principle, the “Farmers’ Rights” concept was included
in the Undertaking from 1989.
 6. As per Article 28,Treaty enters into force 90 days after deposit of the fortieth instrument of
ratification, acceptance, approval or accession. http://www.fao.org/legal/TREATIES/033s-
e.htm

The Farmers’ right also include the rights arising from conserving, improving and making available the
genetic resources. However, the concept of farmers’ rights suffers from the weakness that at present no
internationally accepted instrument exists which can address problems such as who should be
compensated, how, with how much and for precisely what.

7. Refer Halewood, M. Indigenous and local knowledge in International Law: a preface to sui
generis intellectual property protection. McGill Law Journal 44:953-996, 1999

Officially “Farmers’ Rights” is an attempt to acknowledge, “the contribution farmers have made to the
conservation and development of plant genetic resources, which constitute the basis of plant production
throughout the world.