PROTECTION OF NEW VARIETIES OF PLANTS AND THE RIGHTS OF PLANT BREEDERS IN INDIA
Plant breeding is the method of modifying the characteristics of a plant in order to create superior-quality plants with desired characteristics suited to the needs of farmers and consumers. The breeders of the plant varieties as well as the new plant varieties obtained through this method need to be protected by way of intellectual property rights so that the plant breeders are encouraged to create more improved varieties of plants. The International Convention for the Protection of New Varieties of Plants was adopted in the year 1961 in Paris and lead to the establishment of The International Union for the Protection of New Varieties of Plants (hereinafter referred to as UPOV). UPOV provides a system of protecting the rights of plant breeders and the new plant varieties created by them. India is not a member UPOV however it is a signatory to the Trade-Related Aspects of Intellectual Property Rights Agreement (hereinafter referred to as the TRIPS Agreement). Article 27 (3) of the TRIPS Agreement provides that the members are supposed to provide protection to plant varieties either by granting patents or by way of a sui generis system.
In India, plant patents are not granted to individuals. Section 3 (j) of The Patents Act, 1970 bars seeds, varieties and species of plants and biological processes for production and propagation of plants from being included within the meaning of inventions. However, new plant varieties and the rights of plant breeders are safeguarded by the Protection of Plant Varieties and Farmers' Rights Act, 2001 (hereinafter referred to as the Act). This Act aims to safeguard the rights of both farmers and plant breeders, as well as encourage the creation of new plant varieties, so as to establish an effective system of obtaining superior quality plants. Plant breeders have an important role in performing plant phenotyping which enables the creation of new plant varieties. As a result, it is critical to recognise and protect their contributions and rights. When the rights of plant breeders are protected, they are motivated to continue improving plant varieties, which ultimately leads to agricultural growth.
REGISTRATION OF NEW PLANT VARIETIES
Various sections of the Act deal with the registration process associated with new plant varieties.
SECTION 14: This section provides that an application should be made to the Registrar regarding the registration of any new plant variety which is an extant variety, farmer's variety or belongs to a genus or specie which the Central Government specifies by way of a notification in the Official Gazette (Section 29 (2)).
SECTION 15: This section lays down that the new variety must be novel, distinct, uniform and stable.
- Novel: The harvested produce of such new variety must not have been sold or disposed of with the consent of the breeder or their successor in India prior to a year and outside of India prior to four years generally but in the case of trees and vines prior to six years.
- Distinct: There must be at least one essential characteristic that makes the new variety clearly distinguishable from a variety that is a matter of common knowledge in any country.
- Uniform: The essential characteristics of the new variety must remain adequately uniform subject to any variation that can be expected from the particular features of its propagation.
- Stable: Even after repeated propagation of the variety, its essential characteristics should remain the same.
SECTION 16: This section enumerates a list of all those who can make an application for registration of the new variety under Section 14 either individually or jointly with any other person. They are as follows:
- An individual person, or a farmer/a group of farmers/a community of farmers, or a university/publicly funded agricultural institution being the breeder of the new variety
- Successor of the breeder
- Assignee of the breeder who has the right to make such an application
- Any person authorised by the breeder, successor or assignee to make such an application
SECTION 24: This section provides that if the application for registration of a variety is not opposed or if the time period for the notice of opposition has expired or if the opposition has been rejected, then after the application for registration of the variety has been accepted, the Registrar shall register the variety and issue a certificate of registration
SECTION 28: Subsequent to the grant of the certificate of registration, the breeder or their successor or their argent or their licensee is given the exclusive right to sell, produce, market, distribute etc. the variety.
The breeder or their successor has to establish their right in case of an extant variety otherwise the Central Government or the State Government shall become the owner of such right.
The agent or the licensee has to apply to the Registrar in the prescribed manner and along with the prescribed fees in order to register their title.
The certificate of registration shall be valid for:
- Trees and vines: Nine years and the total period of validity after review and renewal cannot exceed eighteen years from the date of registration of the variety.
- Other crops: Six years
- Extant variety: Fifteen years from the date of notification of that variety by the Central Government, otherwise, in other cases fifteen years from the date of registration of the variety.
SECTION 39: This section provides that a farmer who has bred or developed a variety is entitled to the same protection as a breeder of the variety. The farmer's variety is entitled for registration and the farmer shall have the right to sell, produce, market, distribute etc. his farm produce or the seed of a variety protected under this Act provided that he shall not be entitled to sell branded seeds of a variety protected under this Act.
REVOCATION OF CERTIFICATE OF REGISTRATION
SECTION 34: The certificate of registration and the protection granted to a breeder can be revoked by the authority in a prescribed manner after giving reasonable opportunity to the breeder to file an objection. The grounds enumerated in this section are as follows:
a. Incorrect information provided by the breeder on the basis of which the certificate of registration was granted
b. Person was not entitled to get the certificate of registration in the first place
c. Breeder failed to provide all the information, documents or material to the Registrar as required for obtaining a certificate of registration under this Act.
d. Breeder did not provide the alternative denomination of the variety which is the subject matter of registration.
e. Breeder did not provide the necessary seeds or propagating material of the variety to the person who has been given a compulsory license under Section 47 (Authority can in certain circumstances order the breeder to grant license to a person).
India has a separate statute that safeguards the rights of farmers and plant breeders and also provides protection to the new varieties created by them. The Act provides an effective system of protecting the rights and interests of farmers and plant breeders and encouraging them to produce more plant varieties having superior qualities.
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.