Plant Variety Protection

• Article 27(3)(b) of the TRIPs Agreement- obligates Members to

protect plant varieties either by patents or by an effective sui generis
system or by any combination thereof.

• India decided to protect plant varieties by a sui generis law i.e. the
Plant Varieties Act.

• Enacted the Protection of Plant Varieties and Farmers' Rights Act,

2001
The Act provides for the establishment of an effective system for
protection of plant varieties, the rights of farmers and plant breeders. It
encourages the development of new plant varieties. The Act is enacted
to achieve following objectives-
(i) to stimulate investment for research and development, both in the
public and private sector, for the development of new plant varieties
for accelerated agricultural development in the country
(ii) to facilitate the growth of the seed industry in the country which will
ensure the availability of high quality seeds and planting material to the
farmers;

(iii) to recognize and protect the rights of the farmers in respect of their
contribution made at any time in conserving, improving and making
available plant genetic resources for the development of new plant
varieties
Definitions
Sec. 2 (za)- (za) “variety”, means a plant grouping except micro-
organism within a single botanical taxon of the lowest known rank,
which can be—
(i) defined by the expression of the characteristics resulting from a
given genotype of that plant grouping;

(ii) distinguished from any other plant grouping by expression of at

least one of the said characteristics;
and (iii) considered as a unit with regard to its suitability for being
propagated, which remains unchanged after such propagation, and
includes propagating material of such variety, extant variety, transgenic
variety, farmers’ variety and essentially derived variety.
• Sec. 2 (j) “extant variety” means a variety available in India which is—
(i) notified under section 5 of the Seeds Act, 1966 (54 of 1966); or (ii)
farmers’ variety; or (iii) a variety about which there is common
knowledge; or (iv) any other variety which is in public domain;
Sec. 2 (l) “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;
Sec. (k) “farmer” means any person who—
(i) cultivates crops by cultivating the land himself; or
(ii) cultivates crops by directly supervising the cultivation of land
through any other person; or
(iii) conserves and preserves, severally or jointly, with any person any
wild species or traditional varieties or adds value to such wild species
or traditional varieties through selection and identification of their
useful properties;
• Sec 2(c) - '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.
Sec. 2 (g) “denomination”, in relation to a variety or its propagating
material or essentially derived variety or its propagating material,
means the denomination of such variety or its propagating material or
essentially derived variety or its propagating material, as the case may
be, expressed by means of letters or a combination of letters and
figures written in any language;
• The Act provides protection to rights of plant breeders, farmers and
researchers.

• Also safeguards public interest by providing for grant of compulsory

licenses in certain circumstances.
Plant Varieties Authority and Registry
• The Central Government shall, by notification in the Official Gazette,
establish an authority to be known as the Protection of Plant Varieties
and Farmers’ Rights Authority for the purposes of this Act.
General functions of Authority
• (1) It shall be the duty of the Authority to promote, by such measures
as it thinks fit, the encouragement for the development of new
varieties of plants and to protect the rights of the farmers and
breeders.

• (2) In particular, and without prejudice to the generality of the

foregoing provisions, the measures referred to in sub-section (1) may
provide for— (a) the registration of extant varieties subject to such
terms and conditions and in the manner as may be prescribed;
(b) developing characterisation and documentation of varieties
registered under this Act;
(c) documentation, indexing and cataloguing of farmers’ varieties;
(d) compulsory cataloguing facilities for all varieties of plants;
• (e) ensuring that seeds of the varieties registered under this Act are
available to the farmers and providing for compulsory licensing of
such varieties if the breeder of such varieties or any other person
entitled to produce such variety under this Act does not arrange for
production and sale of the seed in the manner as may be prescribed;
• (f) collecting statistics with regard to plant varieties, including the
contribution of any person at any time in the evolution or
development of any plant variety, in India or in any other country, for
compilation and publication;
• (g) ensuring the maintenance of the Register.
Plant Variety Registry
The Central Government shall establish, for the purpose of this Act, a
Registry which shall be known as the Plant Varieties Registry.
The head office of the Plant Varieties Registry shall be located in the
head office of the Authority, and for the purpose of facilitating the
registration of varieties, there may be established, at such places, as
the Authority may think fit, branch offices of the Registry
National register of Plant Varieties
• A Register called the National Register of Plant Varieties shall be kept
at the head office of the Registry, wherein shall be entered the names
of all the registered plant varieties with the names and addresses of
their respective breeders, the right of such breeders in respect of the
registered varieties, the particulars of the denomination of each
Registered variety, its seed or other propagating material along with
specification of salient features thereof and such other matters as
may be prescribed.
Registration of Plant Varieties
Who Can Apply For Registration?
Section 16 provides that an application for registration
of plant varieties under section 14 is to be made by
anyone of the following persons either individually or
jointly with any other person:
any person claiming to be the breeder of the variety; or
(ii) any successor of the breeder of the variety; or
(iii) any person being the assignee of the breeder of the variety; or
(iv) any farmer or group of farmers or community of farmers claiming
to be the breeder of the variety; or
(v) any person authorized to make application by any aforesaid person;
or
(vi) any university or publicly funded agricultural institution claiming to
be the breeder of the variety.
APPLICATION FOR REGISTRATION
Any person who is eligible to make an application under section 16,
may make a application to the Registrar for registration of any variety –
(i) of such genera and species as specified by Central Government
under section29(2);
or(ii) which is an extant variety;
or(iii) which is a farmers' variety.
CRITERIA FOR REGISTRATION OF A VARIETY
A new variety is registrable if it conforms to the criteria of novelty,
distinctiveness, uniformity and stability.
However, the criterion of novelty is dropped for the registration of an
extant variety. An extant variety is registrable within a specified time if
it conforms to such criteria of distinctiveness, uniformity and stability.
Novelty
A new variety is deemed to be 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.
However, trial of a new variety which has not been sold or otherwise
disposed of is not to affect the right to protection. Further, the novelty
of such variety is not affected from 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.
Distinctiveness
A new variety is deemed to be 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 of the application.
The term "essential characteristics" is defined under section 2(h) to
mean "such heritable traits of a plant variety which are determined by
the expression of one or more genes of other heritable determinants
that contribute to the principal features, performance or value of the
plant variety." Thus, "essential characteristics" can only be determined
by expression of one or more genes. If any of the genes of the plant
variety is different from the other variety whose existence is matter of
common knowledge, the requirement of essential characteristics of
distinctiveness is satisfied.
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 shall be deemed to render that variety a matter
of common knowledge from the date of the application in case the
application leads to the granting of the freeder's right or to the entry of
such variety in such official register, as the case may be.
Uniformity
A new variety is deemed Ito be uniform if subject to the variation that
may be the particular features of its propagation it is sufficiently
uniform in its essential characteristics. According to the requirement of
uniformity, it is expected that there may e certain normal variation in
the particular features propagated that expected variation in the
propagation may be caused by differences in soil, water, male,
environment, fertilizers or topography. If the variation is more than the
expected one, then the variety is not to be deemed uniform.
Stability
A new variety is 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 such cycle. Thus, the
requirement of stability is deemed to have been satisfied if the variety
repeats its essential characteristics after repeated propagation.
NON-REGISTRABLE VARIETY
A new variety is not registrable if the denomination given to such
variety –
(i) is not capable of identifying such variety; or
(ii) consists solely of figures; or
(iii) 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
(iv) is not different from every denomination which designates a variety
of the same botanical species or of a closely related registered species;
or
(v) is likely to deceive the public or cause confusion in the public
regarding the identity of such variety; or
(vi) is likely to hurt the religious sentiments respectively of any class or
section of the citizens of India; or
(v) is likely to deceive the public or cause confusion in the public
regarding the identity of such variety; or
(vi) is likely to hurt the religious sentiments respectively of any class or
section of the citizens of India; or
(vii) is prohibited for use as a name or emblem for any of the purposes
mentioned in section 3 of the Emblems and Names (Protection of
Improper Use) Act, 1950; or
(viii) is comprised of solely or partly of geographical name.
However, the Registrar may register a variety, the denomination of
which comprises solely or partly of a geographical name, if he considers
that the use of such denomination in respect of such variety is an
honest use under the circumstances of the case.
Denomination' in relation to a variety or its propagating material or
essentially derived variety or its propagating material, means the
denomination of such variety or its propagating material or essentially
derived variety or its propagating material, as the case may be,
expressed by means of letters or a combination of letters and figures
written in any language. A denomination may, therefore, be
alphanumeric.
Effect of Registration & Benefit Sharing
• TERM OF PROTECTION
The certificate of registration for a variety including the essentially
derived variety valid for a period of nine years in the case of trees and
vines and six years in the other crops. The term may, however, be
reviewed and renewed for the remaining per payment of such fees as
may be fixed.
• The total period of validity shall not exceed(1) eighteen years from
the date of registration of the variety in case of trees and (ii) fifteen
years from the date of the notification of that variety under the Seeds
Act, 1966 in case of extant varieties, and (iii) fifteen years from the
date of registration of the variety in other cases
DETERMINATION OF BENEFIT SHARING
Section 26 provides that on receipt of copy of the certificate of registration,
the Au is to publish contents of the certificate and invite claims of benefit
sharing registered variety in the prescribed manner. On invitation of the
claims, any person or group of persons or firm or government non-
governmental organization shall submit its claim of benefit sharing to such
variety the prescribed form and within prescribed time and with prescribed
fee. Such claim however, be submitted by any (1) person or group of persons,
if such person one person constituting such group is a citizen of India, or (ii)
firm or governmental governmental organization , if such firm or organization
is formed or established inOn receiving a claim, the Authority shall send a
copy of such claims to the bread the registered variety.
The breeder may, on receipt of such copy, accept the clam accordingly
intimate the same to the Authority within a period of three months. He
also submit his opposition to such claim within a period of three
months in the pre manner. In the eventuality of the breeder failing or
defaulting to tender the int within three months, it shall be presumed
that he has no opposition to such claim dhe claim shall be decided
accordingly.
Factors to be taken into consideration for determining the amount-
The Authority shall dispose of the claim after giving an opportunity of
being heard parties. While disposing of the claim, the Authority shall
explicitly indicate in its order the amount of the benefit sharing, if any,
for which the claimant shall be entitled.
• The Authority shall take into consideration following matters at the
time of determining the(i) the extent of the variety the use of genetic
material of the claimant in the development of the variety relating to
which the benefit sharing has been claimed:(i) the commercial utility
and demand in the market of the variety relating to which the benefit
sharing has been claimed.
Deposit of amount in National Gene Fund-
The amount of benefit sharing to a variety shall be deposited by the
breeder of such variety in the National Gene Fund. In case of default or
failure on the part of the of such of the variety to deposit the amount
of benefit sharing in the Gene Fund as per the order of Authority within
a period of three months, the Registrar shall make a reference to the
District Magistrate. The amount of benefit sharing is recoverable as an
arrear of land revenue by the District Magistrate within whose local
limits of jurisdiction the breeder liable for such benefit sharing resides
DEPOSIT OF SEEDS IN NATIONAL GENE BANK
Section 27 requires the breeder to deposit such quantity of seeds or
propagating material ncluding parental line seeds of registered variety
in the National Gene Bank as may be pecified in the regulations for
reproduction purpose at his expense within the specified me. The seeds
or propagating material or parental line seeds is to be deposited in the
National Gene Bank specified by the Authority.
• RIGHTS OF BREEDER
Section 28(1) confers an exclusive right on the breeder of a registered
variety or his successor, his agent or licensee to produce, sell, market,
distribute, import or export the variety. The rights of breeder are
subject to other provisions of the Act. This means that the rights of
breeder are subject to the researcher's right under section 30 and the
farmers' right under section 39 of the Act. In case of an extant variety,
unless a breeder or his successor establishes his right, the Central
Government, and in cases where such extant variety is notified for a
State under section 5 of the Seeds Act, 1966, the State Government is
deemed to be the owner of such right.
The Act, thus, makes the Central Government or the State Government,
as the case may be, the owner of the right, where the breeder or his
successor has failed to establish his right. A breeder may authorize any
person to produce, sell, market or otherwise deal with the registered
variety subject to such limitations and conditions as may be specified in
the regulations. Such authorization is to be in such form as may be
specified by the regulations made by the Authority."
RESEARCHER'S RIGHTS
Section 30 allows the following uses:(i) the use of any registered variety
by any person using such variety for conducting experiment or
research, or(ii) the use of a variety by any person as an initial source of
variety for the purpose of creating other varieties. However, the
authorization of the breeder of a registered variety is required where
the repeated use of such variety as a parental line is necessary for
commercial production of such other newly developed variety
• 39. Farmers’ rights.—(1) Notwithstanding anything contained in this
Act,— (i) a farmer who has bred or developed a new variety shall be
entitled for registration and other protection in like manner as a
breeder of a variety under this Act;
• (ii) the farmers’ variety shall be entitled for registration if the
application contains declarations as specified in clause (h) of sub-
section (1) of section 18.
iii) 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 shall be entitled
in the prescribed manner for recognition and reward from the Gene
Fund: Provided that material so selected and preserved has been
used as donors of genes in varieties registrable under this Act;
iv) a farmer shall be deemed to be entitled to save, use, sow resow,
exchange, share or sell his farm produce including seed of a variety
protected under this Act in the same manner as he was entitled
before the coming into force of this Act
Compulsory Licensing
• APPLICATION FOR GRANT OF COMPULSORY LICENCE
Any person interested may make an application to the Authority at any time
after the expiry of three years from the date of issue of a certificate of
registration of a variety alleging that the reasonable requirements of the
public for seeds or other propagating material of the variety 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 pray for the grant of a
compulsory licence to undertake production, distribution and sale of the seed
or other propagating material of that variety. Every application is to contain a
statement of the nature of the applicant's interest together with such
particulars as may be prescribed and the facts upon which the application is
based.
• ORDER FOR COMPULSORY LICENCE
The Authority, after consultation with the Central Government, and if
satisfied after offering an opportunity to the breeder of such variety to
file opposition and after hearing the parties, on the issue 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, may order such breeder to grant a licence to the
applicant upon such terms and conditions as it deem fit and send a
copy of such order to the Registrar to register the title of such applicant
as licensee on payment of the fee by the applicant.
When requirement of public deemed to have not been satisfied?
In determining the question as to whether the reasonable
requirements of the public for seeds of a variety or its propagating
material has not been satisfied, the Authority shall take into account
(i) 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
(ii) the capacity, ability and technical competence of the applicant to
produce and market the variety to meet the requirement of the public.
• ADJOURNMENT OF APPLICATION FOR GRANT OF COMPULSORY LICENCE
During the pendency of an application for the grant of compulsory licence,
if the breeder of registered variety makes a written request to the
Authority on the ground that due to any reasonable factor, such breeder
has been unable to produce seed or other propagating material of the
variety on a commercial scale to an adequate extent till the date of making
such request, the Authority may, on being satisfied that the said ground is
reasonable, adjourn the hearing of such application for a period not
exceeding 12 months in aggregate as it may consider sufficient for
optimum production of the seed or propagating material of such variety or
essentially derived variety, as the case may be, by such breeder.
No adjournment of the application, however, is to be granted unless
the Authority is satisfied that the breeder has taken immediate
measures to meet the reasonable requirements of the public for the
seeds or other propagating material of such variety.
DURATION OF COMPULSORY LICENCE
Section 50 provides for the flexible duration of compulsory licence. The
Authority is to determine the duration of the compulsory licences. Such
duration may vary from case to case and the Authority is to keep in
view the gestation periods and other relevant factors but in any case
the duration shall not exceed the total remaining period of the
protection of that variety. When a compulsory licence is granted the
prescribed authority shall make available to the licensee of such
compulsory licence, the reproductive material of the variety relating to
such compulsory licence stored in the National Gene Bank or any other
centre.
TERMS AND CONDITIONS OF LICENCE
While determining the terms and conditions of a compulsory licence under section
51. the Authority is to endeavour to secure - (i) reasonable compensation to the
breeder of the variety relating to the compulsory licence having regard to the nature
of the variety, the expenditure incurred by such breeder in breeding the variety or
for developing it, and other relevant factors;
(ii) that the compulsory licensee of such variety possesses the adequate means to
provide to the farmers, the seeds or its other propagating material of such variety,
timely and at reasonable market price. The compulsory licence granted by the
Authority does not authorize the licensee to import the concerned registered variety
or any seed or other propagating material of such variety from abroad where such
import would constitute an infringement of the rights of the breeder of such variety.
UPOV Model of Plant Variety Protection
• UPOV- Union for the Protection of New Varieties of Plants
• Before the 1960s, IP protection of plant varieties was uncommon.
With very few national regimes, European breeder associations were
instrumental in UPOV’s existence. Two organisations were deeply
involved in the creation of the UPOV Convention: (i) the International
Association for the Protection of Intellectual Property (AIPPI), which
largely comprises lawyers with a proindustry stance; and (ii) the
International Association of Plant Breeders (ASSINSEL). Both took the
strategic view that the lack of IP norms specifically for plants needed
to be resolved internationally.
• In 1956, ASSINSEL’s members called for a conference to consider the
possibility of developing a new international instrument for protecting
plant varieties, requesting the French government to organise it. That
conference established the basic principles of plant variety protection
as later incorporated into the UPOV Convention.
• The International Convention for the Protection of New Varieties of
Plants was adopted in December 1961, entering into force in 1968.
• UPOV has been established by the International Convention for the
Protection of New Varieties of Plants (the “UPOV Convention”),
which was signed in Paris in 1961. The Convention entered into force
in 1968. It was revised in Geneva in 1972, 1978 and 1991. The 1978
Act entered into force on November 8, 1981. The 1991 Act entered
into force on April 24, 1998.
• The purpose of the UPOV Convention is to ensure that the member
States of the Union acknowledge the achievements of breeders of new
plant varieties, by making available to them an exclusive property
right, on the basis of a set of uniform and clearly defined principles.
To be eligible for protection, varieties have to be distinct from
existing, commonly known varieties, sufficiently uniform, stable and
new in the sense that they must not have been commercialized prior to
certain dates established by reference to the date of the application for
protection.
• To be eligible for protection, plant varieties must be novel, distinct,
uniform and stable (the ‘DUS criteria’). Under UPOV, a variety is
considered novel if it has not been sold or otherwise disposed of
within a specific time-frame. In other words, UPOV defines novelty in
relation to commercialisation and not by the fact that the variety did
not previously exist. To be distinct, the variety must be distinguishable
by one or more characteristics from any other variety whose
existence is a matter of common knowledge.
• Protection under UPOV does not require that a variety be completely
uniform, but rather that it be sufficiently uniform in its relevant
characteristics to be identified as a particular variety. To be
considered stable, the variety must remain true to its description after
repeated reproduction or propagation. The Convention specifies that
granting PVP shall not be subject to any further conditions, provided
that the applicant complies with all the formalities and pays the
required fees.
• PVP does not require the breeder to disclose the source of the
materials used to breed the new variety (whereas patents usually
have a disclosure requirement, which allows others to read the patent
document and repeat the invention).

• Generally, applicants for PVP are required to submit the plant

material, which may be used by a government institution (or a private
institution authorised by the government to conduct this role) to
demonstrate stability and homogeneity through planting trials, also
known as ‘DUS examinations’.
• UPOV sets out the breeder’s rights to authorise various acts in
relation to the PVP-protected variety, such as production,
reproduction, offering for sale, marketing, importing and exporting.
Significantly, UPOV allows breeders to use protected varieties as a
source for the creation of new varieties, and then to market the new
varieties without authorisation from the original breeder (the
‘breeders’ exemption’). To respond to new scientific developments,
though, UPOV 1991 extended the original breeders’ rights to varieties
which are essentially derived from their protected variety, meaning
ones that have been subjected only to minor modifications such as
through genetic engineering.
• By becoming a member of UPOV, a State signals its intention to
protect plant breeders on the basis of principles that have gained
worldwide recognition and support. It offers its own plant breeders the
possibility of obtaining protection in the other member States and
provides an incentive to foreign breeders to invest in plant breeding
and seed production on its own territory.
• It has the opportunity through membership of UPOV to share in and
benefit from the combined experience of the member States and to
contribute to the worldwide promotion of plant breeding. A constant
effort of intergovernmental cooperation is necessary to accomplish
such an aim and this requires the support of a specialized secretariat.
The functions of UPOV

• The main activities of UPOV are concerned with promoting international

harmonization and cooperation, mainly between its member States, and with
assisting countries in the introduction of plant variety protection legislation. A
smoothly operating international trade requires uniform, or at least mutually
compatible, rules.
• The fact that the UPOV Convention defines the basic concepts of plant variety
protection that must be included in the domestic laws of the members of the
Union leads, in itself, to a great degree of harmony in those laws and in the
practical operation of the protection systems. Such harmony is enhanced,
firstly, through specific activities undertaken within UPOV leading to
recommendations and model agreements and forms and, secondly, through the
fact that UPOV serves as a forum to exchange views and share experiences.
• UPOV has established a detailed set of general principles for the conduct of the
examination of plant varieties for distinctness, uniformity and stability, and more
specific guidelines for some 160 genera and species. These normative documents
are progressively updated and extended to further genera and species. Their use is
not limited to plant variety protection but extends to other areas such as national
listing and seed certification.
• The most intense cooperation between member States concerns the examination of
plant varieties. It is based on arrangements whereby one member State conducts
tests on behalf of others or whereby one member State accepts the test results
produced by others as the basis for its decision on the grant of a breeder’s right.
Through such arrangements member States are able to minimize the cost of
operating their protection systems and breeders are able to obtain protection in
several countries at relatively low cost.
• The UPOV member States and the UPOV Secretariat maintain
contacts with and provide legal, administrative and technical
assistance to the governments of a growing number of States
expressing interest in the work of the Union and in the idea of plant
variety protection. Regular contacts are also maintained with many
intergovernmental and international non-governmental organizations.