PLANT VARIETIES

AND FARMERS’ RIGHTS ACT, 2001

INDIA BECOMES MEMBER OF WTO & APPLICABILITY OF TRIPS

India became a member of the World Trade Organization on January 1, 1995.

As a member, it was required to comply with the Trade Related Aspects of the
Intellectual Property Systems (TRIPS) agreement. TRIPS require member
countries

“to provide adequate standards and principles concerning the availability,

scope and use of intellectual property rights and effective means for the
enforcement of these rights.”
 INTRODUCTION

—  The World population has passed 1.37 billion people

and continues to grow.
—  Hunger is one of the major challenges to
humankind at present and likely will be even more
in the future as food requirements rise.
—  Technology advances in agriculture and food
production need to continue to meet these
challenges.
—  Prior to this Act, India had only Patents Act of
1970, which did not permit the patenting of methods
of agriculture and horticulture.
—  All newly developed plant varieties were notified
and released under the Seeds Act of 1966.
—  Before the advent of modern technologies in the
agricultural sector, inventions based on living
organisms (like the breeding of new crop varieties
through hybridization, back crossing and selection)
were considered as natural and obvious
discoveries that could rarely be copied and did not
warrant any protection or patenting.
 INDIA TAKES THE LEAD

Ø  India has taken lead amongst the developing countries to come out with

legislation of The Protection of Plant Varieties and Farmers’ Rights Act,

2001 that not only protects the interests of breeders, but also farmers.

Ø  This is significant since major portion of India’s population is engaged in

farming sector.

Ø  Such legislation has successfully brought India’s laws in conformity with

TRIPS and simultaneously protected the interests of farming.

Ø  Adopted a sui generis system.

—  To provide for the establishment of an effective
system- protection of plant varieties, rights of
farmers and breeders-

to encourage development of new plant varieties-

for conserving, improving and making available

plant genetic resources for development of new
varieties.
 Object of the Act
u To establish an effective system for the protection of plant
varieties, the rights of farmers and plant breeders and to
encourage the development of new varieties of plants.
u To recognize and protect the rights of farmers in respect of
their contributions made at any time in conserving, improving
and making available plant genetic resources for the
development of new varieties.
u To accelerate agricultural development in the county, protect
plant breeders rights, stimulate investment for research and
development both in public and private sector for development
of new varieties.
u Facilitate the growth of seed industry in the country.
u The Protection of Plant Varieties and Farmers’ Rights Rules,
2003 (“ppvfrr”)
 Rights under the Act

—  Breeders Rights: breeders- exclusive rights to produce,

sell, market, distribute, import or export protected
variety. Appoint agent/ licensee.
—  Researcher’s Rights: researcher can use any registered
variety- conducting experiment or research.
—  Farmers Rights: farmer- evolved or developed new
variety. Save, use, sow, re- sow, exchange, share or
sell. Compensation to the farmers for non- performance
u/s 39 (2).
 DEFINITION OF EXTENT VARIETY

Ø  “Extent variety” means a variety available in India which is---

Ø  (i) notified under Section 5 of the Seeds Act, 1966 (If the Central Government, after

consultation with the Committee, is of opinion that it is necessary or expedient to

regulate the quality of seed of any kind or variety to be sold for purposes of agriculture,
it may, by notification in the Official Gazette, declare such kind or variety to be a
notified kind or variety for the purposes of this Act and different kinds or varieties may
be notified for different States or for different areas) ; or

Ø  (ii) farmers’ variety ; or

Ø  (iii) a variety about which there is common knowledge ; or

Ø  (iv) any other variety which is in public domain;

 Variety Section 2(za)

Ø  Variety means a plant grouping except microorganisms within a single taxon of

the lowest known rank, which can be

—  defined by the expression of the characteristics resulting from a given genotype of

that plant grouping

—  distinguished form any other plant grouping by expression of at least one of the

said characteristics and

—  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
 Farmer’s Variety Section 2(l)

Ø  Means a variety that has:

—  has been traditionally cultivated and evolved by the farmers in

their fields, or

—  is a wild relative or land race of variety about which the farmers

possess the common knowledge.

Ø  Section 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.
 Essentially derived variety Section 2(i)

Ø  Essentially derived variety in respect of a variety (the initial variety) shall be

said to be essentially derived from such initial variety when it

—  is predominantly derived from such initial or from a variety that itself is

predominantly derived from such initial variety, while retaining the

expression of the essential characteristics that result from the genotype or
combination of genotypes of such initial variety,

—  is clearly distinguished from such initial variety, and

—  conforms (except for the differences which result from the act of derivation) to

such initial variety in the expression of the essential characteristics that result
from the genotypes or combination of genotypes of such initial variety
 General function of the Protection of Plant Varieties and Farmers Rights
Authority(Section 3)

Ø  8. 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).
(a) the registration of extent varieties subject to such terms and conditions and in the
as may be prescribed.
(b) developing characterization and documentation of varieties
(c) documentation, indexing and cataloguing of farmers varieties
(d) compulsory cataloguing facilities
(e) ensuring that registered seeds are made available to the farmers
(f) collecting statics
(g) ensuring maintenance of register
 CRITERIA

—  Distinct: variety clearly distinguishable by at least

one essential characteristic from existing or
commonly known varieties in any country at the time
of filing of the application.
—  Uniform: sufficiently uniform in its essential
characteristic
—  Stable: variety must be stable after repeated
propagation
 Section 15 REGISTRABLE VARIETIES

—  A new variety shall be registered under this act if it

conforms to the criteria of novelty, distinctiveness,
uniformity and stability.

—  Points of concern
1.  Guidelines for DUS testing need to be clearly defined for
specific crops.
2.  What kind of characters should form the basis for DUS?
(morphological, biochemical, molecular?)
3.  What constitutes ‘essential characters’ and additional
characters that are not compulsory? These need to be
defined crop-wise.
—  15 (2) Notwithstanding anything contained in Sub-section (1), an extant
variety shall be registered under this act, within a specified period if it
conforms to such criteria of distinctiveness, uniformity and stability as
shall be specified under the regulations.
—  Points of concern

1. What should be this specified period?

2. Who shall be considered as owners of 'extant varieties'?

3. DUS criteria to be same for extant varieties or separate?

Ø  15 (3) For the purposes of the sub sections (1) and (2) as the case may be , a new

variety shall be deem 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.

—  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;

Points of concern

1. What should be the criteria for uniformity (mode of pollination) and essential

characters as they would be different for different crops ?

 Section 16 Persons who can make application

Ø  any person claiming to be the breeder of the variety

Ø  any successor of the breeder of the variety

Ø  any person being the assignee of the breeder of the variety

Ø  any farmer or group of farmers or community of farmers claiming to be

the breeder of the variety

Ø  any person authorised in the prescribed manner by the persons

mentioned above

Ø  any university or publicly funded agricultural institution claiming to be

the breeder of the variety

 Section 28 registration to confer rights

The owner of the protected variety has the right to

÷  Produce the protected variety

÷  Sell the variety

÷  Market the variety

÷  Distribute the variety

÷  Import the variety

÷  Export the variety

 Section 64 Infringement

Any one of the following done by a person other than the

owner or without his authorisation / license

÷  Sells, exports, imports or exports a registered variety

÷  Sells, exports, imports or exports a variety deceptively similar to the

registered variety
 Acts not considered to be infringement

Researcher Rights (Sec 30) :

Ø  Use of variety for research and experimental purposes allowed

Ø  Use of variety as an initial variety for the creation of a new variety

allowed

Ø  Repeated use of the variety for commercial production of a new

variety is not allowed without the authorization of the breeder of the
registered variety.
 Reliefs in case of infringement Section 64

—  An injunction awarded against the infringer

—  The plaintiff has the option to claim for damages or a

share of the profits of the infringer

 Farmers rights Section 39

—  Has the same privilege with respect to a breeder of a variety

—  A farmers’ variety shall be entitled for registration if a

declaration has been made that the initial variety has been
lawfully obtained

—  Can save, use, sow, resow, exchange, share or sell his farm
produce including seed of a protected variety

—  The farmer as such cannot sell branded seeds of a protected

variety

—  A farmer can claim damages if the seed of the protected

variety does not give the yield as stated by the breeder.
 Protection of innocent infringement Section 42

The act provides farmers against the unintentional and

accidental use of the protected variety
Ø  No infringement if the farmer was unaware of the existence of the rights

Ø  A relief granted as damages for infringement shall not be granted if the

farmer proves before court that at that time he was unaware of the
existence of such right
 Exemption from Fees Section 44

Farmer or a group of farmers not liable to pay

Ø  Fees in any proceedings

Ø  Including any fees payable for inspection

Ø  For obtaining any copy of a document or a copy of a decision