India: Plant Variety Protection

Last Updated: 30 August 2016
Article by Chadha & Chadha IP

INTRODUCTION

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.

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 uniformin 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 OF 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 A THE MOMENT:

  • .Black Gram
  • .Bread Wheat
  • .Cotton(Tetraploid)
  • .Cotton(Diploid)
  • .Chickpea
  • .Field pea/Garden pea
  • .Green Gram
  • .Jute
  • .Kidney bean/French bean
  • .Lentil
  • .Maize
  • .Pearl millet
  • .Pigeon pea
  • .Rice
  • .Sorghum
  • .Small Cardamom
  • .Sugarcane
  • .Turmeric
  • .Ginger
  • .Black Pepper
  • .Indian Mustard and Karan Rai
  • .Rapeseed
  • .Sunflower
  • .Safflower
  • .Castor
  • .Sesame
  • .Lineseed
  • .Groundnut
  • .Soyabean
  • .Chrysanthemum

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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