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Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY

Lucknow

Faculty of Law

RESEARCH PROJECT ON

Protection of Plant Verities in India

For

COURSE ON ‘LAW OF INTELLECTUAL PROPERTY RIGHTS – II’

Submitted by

Anamika yadav

B.ComLL.B/15-16/26

Academic Session: 2017-18

Under the Guidance of

Mr. Shail Shakya

Asst. Prof. in Law & Faculty for IPR-I
Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University

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Acknowledgement

I would like to express my /special thanks of gratitude to my teacher Mr. Shail

Shakya who gave me the golden opportunity to do this wonderful project on the
topic Protection of Plant Verities 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 him.

Secondly, I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time period.

Anamika yadav

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Table of contents

1. Introduction ……………………………………………………………………….4

2. The protection of plant varieties and farmer’s right………………………….5

3. Objectives of the act………………………………………….……………..…..….5

4. Duration of protection of plant varieties……………………………….……..…6

5. Registration of plant………………………………………………………….……6

6. Application of registration……………………………………………………..…7

7. Positive features of the act………………………………..………………………7

8. Criteria for registration of variety …………………..………………………….8

9. Plant authority and types of varieties……………………………………………8

10. Person who can apply for registration………………………………..………...9

11. Exemptions of plant varieties………………………………………….…………10

12. Infringement……………………………………………………………………….11

13. Development and impact of UPOV system……………………………………12

14. Conclusion……………………………………………………………………..…..13

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Introduction

The agricultural sector is the backbone of the economy and employment in most

developing countries. Its share of the gross domestic product (GDP) is often more

than 50 percent and, in some countries, up to 80 percent of the active population

earn their living in agriculture. But in most of these countries, agricultural

productivity is extremely low, with yields often low and unstable from year to year.

A large proportion of this agricultural activity is subsistence farming that generates

no financial income and is, in many cases, insufficient to feed farmers’ families.

Under those circumstances, the agricultural sector is unable to contribute to a

country’s overall economic development and, even less, to respond to the challenges

of feeding a growing population, relieving rural poverty and mitigating climate

change.1

One of the reasons for poor agricultural performance in many developing countries

is a lack of progress in improving the performance of traditional plant varieties over

the centuries. In contrast, the graphs (at right) illustrate progress achieved in wheat

yield in France and maize yield in the U.S. over a period of two centuries. Clearly,

the advent of modern plant breeding has enabled yields – which previously were

stagnating or declining – to increase substantially. It is estimated that improved

varieties have accounted for more than 50 percent of overall yield increases for

important crops in Europe. The remaining growth is due to improved agricultural

techniques, including fertilizers and better pest and disease control. But

improvement in yield is not the only major objective in modern plant breeding.

Others include resistance to environmental and biological stress, and quality.

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

1
Law Relating to Intellectual Property, Dr. Raghbir Singh,3rd Edition

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varieties and, the rights of the breeders and to encourage the development of new

varieties of plants. Any variety that fulfils 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 fulfilment of the eligible criteria.

The protection of plant varieties and farmer’s rights act, 2001:

The history of the evolution of India’s sui generis plant variety protection can be

traced back to 1999 when The Plant Variety Bill was introduced in December 1999

with a view to start parliamentary process before the TRIPS implementation

deadline of 1st January 2000. This draft was not at all comprehensive and was on the

whole largely a plant breeder’s rights legislation. In the event, the act was not

adopted immediately but was referred to a joint parliamentary committee. After a

number of hearings in 2000, the committee ended up substantially rewriting the bill.

It maintained the main provision with respect to a plant breeder’s rights regime but

added an important new chapter on ‘Farmer’s Rights’. Thus the Committee in

essence added an element to the first draft, which as analysed below, has created

certain imbalances in the overall legal regime proposed under the Plant Variety Act.

The objectives of the Act are:

 to establish an effective system for protection of plant varieties, the rights of

farmers and plant breeders and to encourage the development of new

varieties of plants;

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 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;

 to protect plant breeders’ rights to stimulate investment for research and

development both in the public and private sector for development of new

plant varieties;

 to facilitate the growth of seed industry in the country that will ensure the

availability of high quality seeds and planting material to the farmers. 2

Duration of protection of a registered plant variety

The duration of protection of registered varieties is different for different

crops which are as below:

 For trees and vines - 18 years.

 For other crops - 15 years.

 For extant varieties - 15 years from the date of notification of that

variety by the Central Government under section 5 of the Seeds Act,

1966.3

Registration of Plants
Registration of a plant variety gives protection only in India and confers

upon the rights holder, its successor, agent, or licensee the exclusive right to

produce, sell, market, distribute, import, or export the variety.

Application for registration

2
www.mondaq.com/india/x/519652/patent/plant+variety+protection

3
Philippe Cullet ,The international union for the protection of new varieties of plants, Journal of International
Environment Law Research Centre available at,
www.ielrc.org/content/f0303.htm

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The application for protection under the Act can be made by any of the

following persons:

 Any person claiming to be the breeder of the variety;

 Any successor of the breeder of the variety;

 Any person being the assignee or the breeder of the variety in respect of the

right to make such application;

 Any farmer or group of farmers or community of farmers claiming to be

breeder of the variety;

 Any person authorized to apply on behalf of farmers; or

 Any university or publicly funded agricultural institution claiming to be

breeder of the variety. 4

Positive features of the act:

Under the plant variety act, the new plant variety must conform to the criteria of

novelty, distinctiveness, uniformity and stability. It is remarkable that the PPVFR

allows four types of varieties to be protected: a new variety, an extant, an essentially

derived and a farmers’ variety. Extant variety is a broad category covering varieties

available in India that are notified under Section 5 of the Seeds Act 1966 in situations

where it has been deemed necessary to regulate the quality of seeds for specific

variety sold for use in agriculture. Farmer’s varieties are those about which there

common knowledge is or which are in the public domain. An essentially derived

variety is one that can be distinguished from the initial variety but retains its

essential characteristics. This multiple rights system aims to distribute benefits

equitably. The PPVFR gives different protection durations for different cases. More

precisely, for trees and vines, the period of protection is 18 years from the date of

registration of the variety; for extant varieties, the period of protection is 15 years

4
www.mondaq.com/india/x/519652/patent/plant+variety+protection

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from the date of the notification of that variety by the Central Government under

Section 5 of the Seed Act 1996 and for other varieties, the period of protection is 15

years from the date of registration of the variety. The main contribution of the Act is

the possibility granted under Section 39 to farmers to be offered exactly the same

rights as commercial breeders for their varieties. In other words, farmers have the

right to save, use, sow, re-sow, exchange, share, or sell their farm produce, including

seeds. The only proviso is that these seeds must not be ‘branded’ with breeder’s

registered name. In this way both farmers and breeders rights are protected. 5 The

breeder is rewarded for his innovation, but without being able to threaten the

farmer’s ability independently to engage in his livelihood and supporting the

livelihood of other farmers. In addition, as a part of the farmers’ rights,

compensation can be claimed if a variety fails to provide the expected performance

under given condition and leads to crop failure.

CRITERIA FOR REGISTRATION OF A VARIETY:

Novel: A new variety is deemed to be novel if, at the date of filing of the application

for registration for protection, the propagating and 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 for a certain

period of time before the date of filing of the application. For sale or disposal of a

new variety in India, this time period is earlier than one year. Outside of India, in the

case of trees and vines, the time period is earlier than six years. In any other case in

India, it is earlier than four years. 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.

5
www.mondaq.com/india/x/519652/patent/plant+variety+protection

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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. A new

variety is deemed 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

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. A new variety is deemed uniform if subject to the variation

that may be expected from the particular features of its propagation it is sufficiently

uniform in 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. A new variety is deemed stable if it’s essential characteristics

remain unchanged after repeated propagation or, in case of a particular cycle of

propagation, at the end of each such cycle.

Plant Authority (PPV&FR Authority)

The Central Government has established the 'Protection of Plant Varieties and

Farmers' Rights Authority' in Ministry of Agriculture to administer the various

provisions of the Act and take measures to promote the development of new

varieties of plants and to protect the rights of the farmers and breeders. The Central

Government has also established the 'Plant Varieties Registry' which shall be located

in the head office of the Authority. The Authority is empowered to appoint a

Registrar-General of plant varieties and other Registrars for the purpose of

registration of plant varieties. 6

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P. Narayanan, Intellectual Property Law (3rd Edition)

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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.7

Filing Requirements for the Registration of a Plant Variety

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 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.

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.8

8
Philippe Cullet ,The international union for the protection of new varieties of plants, Journal of International
Environment Law Research Centre available at,

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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.

Development and impact of the UPOV system

The UPOV Convention, adopted in 1961, entered into force in 1968. The Convention

was amended in 1972, 1978 and 1991. UPOV has 68 members, 44 of which are bound

by the 1991 Act of the Convention. The only internationally harmonized, effective sui

generis system for plant variety protection, UPOV continues to expand. A further 17

states and one international organization have initiated procedures for becoming a

member, and another 45 states have contacted UPOV regarding assistance in

developing PVP legislation.

Key to an effective PVP system are incentives for breeders to develop new varieties,

and ensuring that lack of suitable protection is not a barrier to those varieties’

availability. To assess the overall global impact of an effective PVP system, one must

consider the number of new varieties. The number of applications for protection and

www.ielrc.org/content/f0303.htm

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number of titles of protection granted provide a direct measure of the number of

new varieties, this being an indication of the new varieties with potential importance

within a particular territory. The fact that breeders do not generally pursue

protection of varieties unlikely to be commercially successful, or where protection is

not important, confirms that the number of applications and titles is a good indicator

of the benefits of a PVP system.

The overall impact of the UPOV system can thus be seen in the number of titles of

protection in force within the Union. Some 5,000 titles were in force in UPOV

members – 5 at that time – in 1974. By 2007 that number had grown to over 75,000 –

in 65 members.

Conclusion

The obvious conclusion is that implementing and applying the UPOV system is not

enough. Acceding to the UPOV Convention gives a clear signal to foreign breeders

that a country will provide effective protection of their interests, since accession is

contingent upon national (or regional) legislation being found to be in compliance –

by the Council of UPOV – with the UPOV Convention.

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During its 50 years of development and application, UPOV’s PVP system has proven

effective in encouraging the creation of new varieties of plants and in introducing

those varieties into agricultural and horticultural practice for the benefit of society.

The findings summarized in this article demonstrate that the UPOV system

contributes to:

o further innovation and investment in plant breeding;

o more and better varieties for farmers and growers;

o increased income for farmers;

o rural employment and economic development;

o development of international markets.

Bibliography

 Philippe Cullet ,The international union for the protection of new varieties of plants,
Journal of International Environment Law Research Centre available at,
www.ielrc.org/content/f0303.htm
This article published under International environment law research centre by
Dr. Philippe Cullet. This article was published in 24 Delhi Law Review
2002(2003), p. 41. Under this article he tells about protection of plant variety

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and food security. And he also discussed about international and domestic
legal framework for protection of plant varieties and management.

 www.wipo.int/wipo’_magazine/en/2010/03/article_0007.html9
Under this article I had taken some points related to plant varieties .As we
know that Indian economy is based on agriculture sector so it’s a legal duty to
protect the rights of the farmers. In 2001 act has been passed for the
betterment of farmers and breeders livelihood. I had taken some points
related to protection of plant varieties.

 www.mondaq.com/india/x/519652/patent/plant+variety+protection
From this site I have taken some important Para and points related to plant
varieties and farmer’s right act 2001.

 P. Narayanan, Intellectual Property Law (3rd Edition)

An authentic book by an outstanding author, update with all topical. This is

an amazing book so, all basic of protection of plant varieties and farmer’s

right were given in this book and it helps in my research work and I get many

things in this book. As in my project I take a part of farmer’s right and

protection of plant varieties.

 Law Relating to Intellectual Property, Dr. Raghbir Singh,3 rd

Edition

This is an authentic book by an outstanding author. This book contains relevant

contents related to plant varieties and farmers and breeder’s right.My assignment is

based on protection of plant varieties in India.

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