Kalinga University

Faculty of Law
Question bank
Course Name: LLM
Subject: Protection of Plant Varieties & Traditional Knowledge and Bio diversity
Course Code: LLMIPR401 Semester:- IV

Very Short Answer type questions

1) If a person creates a new variety of plants, Does he/she has protection as a breeder?

Yes, the breeders that have developed or created a new variety can request the recognition of their right
over the variety through an application filed before the correspondent National Authorities that are in
charge of their registration.

2) How do the Countries recognize my right over the variety?

Through the granting of a Breeder’s Title, in favor of a natural person or legal entity, who through an
improvement process has obtained and developed a plant variety of any genus and species, which must
comply with some specific requirements.

3) What are the rights that I obtain once my ownership over the variety is recognized through the
title issued by the National Authority?

The main right granted by the breeder’s title is the possibility of the variety’s creator is to exploit
exclusively by themselves or through a third party, in a specified period of time, and prevent third
parties from exploiting said creation.

4) What is the purpose of protecting PV rights?

As any intellectual property asset, the objectives are:

a) General: To promote the progress of science and technology from the creation and development of
new varieties with distinctive characteristics that allow better and higher performance in different areas.

b) Particular: Through the temporary recognition of the breeder’s right to exclusively exploit the variety
created, it allows it to act as a consideration for the contribution it has made to the progress of science,

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technology, industry, and the economy in this matter, reconciling the particular right of the breeder,
with the general of the society.

5) Taking into consideration that my right is temporarily protected, what is the extension of time?

It varies depending on the Country. There are some international treaties that establish and try to
homogenize the different periods of time, bearing in mind the kind of variety.

6. What are the exclusive rights granted to the holder of plant variety protection?
The exclusive rights granted to the holder of plant variety protection include the right to produce, sell,
market, distribute, import, or export the protected plant variety. The holder of plant variety protection
has the sole right to use the protected plant variety for commercial purposes and prevent others from
using, selling, or importing the same without their consent. They also have the right to authorize others
to use the protected plant variety under a license agreement. The holder can also prevent others from
using the protected variety as a parent line for hybrid varieties, essentially preventing others from using
their variety to create new varieties without their consent. These exclusive rights generally last for a
period of 15 to 25 years, depending on the country and type of plant variety protection granted.
7. Can the holder of plant variety protection assign or license their exclusive rights to another
party?
Yes, the holder of plant variety protection can assign or license their exclusive rights to another party.
The assignment or license must be in writing and may be for the whole or any part of the territory of
India. The terms and conditions of the assignment or license must be registered with the Registrar of
Plant Varieties. The assignment or license may also be subject to certain conditions or limitations as
agreed upon by the parties involved.
8. What are breeders' rights?
Breeders' rights are a type of intellectual property rights that are granted to plant breeders for new and
distinct plant varieties. Breeders' rights give the holder exclusive rights to produce, sell, and market the
protected plant variety. These rights are granted for a limited time period and provide an incentive to
plant breeders to invest in developing new plant varieties with desirable characteristics.
9. What is Traditional Knowledge (TK) under IPR?
Traditional Knowledge (TK) refers to the knowledge, innovations, and practices of indigenous and local
communities that are developed through generations and passed on orally or through practice. TK is
often associated with a specific culture or community and includes knowledge about agriculture,
medicine, handicrafts, and other areas.
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10. How is Traditional Knowledge protected under IPR?
Traditional Knowledge can be protected under Intellectual Property Rights (IPR) through various
mechanisms such as patents, trademarks, and geographical indications. However, there is a need to
ensure that TK is protected in a manner that respects the rights and interests of the communities that
hold it.
11. What are the challenges in protecting Traditional Knowledge under IPR?
One of the challenges in protecting Traditional Knowledge under IPR is the difficulty in defining and
identifying TK. There is also a risk of misappropriation and unauthorized commercial use of TK, which
can result in the loss of cultural heritage and biodiversity.
12. What is the role of the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) in protecting Traditional Knowledge?
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) recognizes
the contributions of indigenous and local communities in the conservation and sustainable use of plant
genetic resources. The treaty includes provisions for the protection of Traditional Knowledge and the
sharing of benefits arising from the use of plant genetic resources.
13. What is the relationship between Traditional Knowledge and biodiversity?
Traditional Knowledge is often associated with the conservation and sustainable use of biodiversity.
Indigenous and local communities have developed traditional practices that are based on their
understanding of the local ecosystem and its resources. TK can be used to develop sustainable practices
for the management of natural resources.
14. What is the interface between intellectual property rights (IPR) and traditional knowledge (TK)?
The interface between IPR and TK is the intersection where the protection of intellectual property rights
overlaps with the safeguarding of traditional knowledge. Traditional knowledge is the knowledge,
innovations, and practices of indigenous and local communities that are passed down from generation to
generation. Intellectual property rights, on the other hand, are legal mechanisms that provide exclusive
rights over creations of the mind, such as patents, copyrights, and trademarks. The interface between
IPR and TK arises when traditional knowledge is claimed as intellectual property by those outside of the
indigenous or local communities that created it.
15. How can traditional knowledge be protected under the existing intellectual property system?
Traditional knowledge can be protected under the existing intellectual property system through a variety
of mechanisms, including patents, trademarks, and copyrights. However, there are significant challenges
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in protecting traditional knowledge within this framework. One of the biggest challenges is that
traditional knowledge is often collective and dynamic, and therefore may not fit neatly within the
individualistic and static framework of the intellectual property system.
16. What are the potential benefits of protecting traditional knowledge under the intellectual property
system?
The potential benefits of protecting traditional knowledge under the intellectual property system are
numerous. Such protection can help to prevent the misappropriation and unauthorized use of traditional
knowledge, provide incentives for the continued development and preservation of traditional
knowledge, and promote the fair and equitable sharing of benefits arising from the use of traditional
knowledge.
17. What are some of the potential drawbacks of protecting traditional knowledge under the intellectual
property system?
There are several potential drawbacks of protecting traditional knowledge under the intellectual
property system. One is that the exclusive rights granted through intellectual property protection may
conflict with the collective and open nature of traditional knowledge. Additionally, there is a risk that
traditional knowledge may be commodified and exploited for commercial gain, which could lead to the
erosion of cultural heritage and identity. There is also a concern that traditional knowledge holders may
not have the financial and legal resources to navigate the complexities of the intellectual property
system.
18. What are some alternative approaches to protecting traditional knowledge that have been proposed?
Several alternative approaches to protecting traditional knowledge have been proposed, including the
establishment of sui generis (unique) systems of protection that take into account the collective and
dynamic nature of traditional knowledge, and the use of customary law and community protocols to
regulate the use and dissemination of traditional knowledge. Another approach is the development of
benefit-sharing agreements that ensure that communities are fairly compensated for the use of their
traditional knowledge. Finally, some have called for a shift in the discourse around intellectual property
to include the recognition and protection of traditional knowledge as a human right.

19. What is biodiversity?

Biodiversity refers to the variety of life on Earth, including the diversity of species, ecosystems,
and genetic diversity within species.
20. What is intellectual property rights (IPR)?
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 Intellectual property rights (IPR) are legal rights that protect creations of the human mind, such
as inventions, artistic works, and trademarks.
21. How can IPR be used to protect biodiversity?
IPR can be used to protect biodiversity by granting legal protection to traditional knowledge,
genetic resources, and other forms of biodiversity. This can help ensure that local communities
benefit from their resources and prevent biopiracy.
22. What is biopiracy?
Biopiracy refers to the unauthorized use of biological resources or traditional knowledge by
individuals or companies without permission or compensation to the communities or countries
where the resources originated.
23. What is the role of the Convention on Biological Diversity (CBD) in protecting biodiversity and
IPR?
The Convention on Biological Diversity (CBD) is an international treaty that aims to conserve
biodiversity, promote sustainable use of its components, and ensure fair and equitable sharing of
benefits arising from the use of genetic resources. The CBD has provisions for the protection of
traditional knowledge and genetic resources, and it encourages the use of IPR to protect
biodiversity

Short answer type questions

1) How is the procedure before the National Authorities?

During the application procedure for a plant variety, the national authority in charge of applying the
plant variety law performs an examination of compliance regarding formal requirements and then an
examination of compliance with substantial requirements to finally grant the exclusive right over the
variety.

2) What are the formal requirements that must be complied with by the applicant?

It depends on the application Country, but in general, some of them are described in most of the laws
around the world. E.g.:

a. Name, address, and nationality of the applicant and the breeder when acting through a representative.

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b. Common and scientific name of the species.

c. Indication of the proposed generic name.

d. Identification of the breeder and place where the variety was obtained, indicating the country of
origin.

e. Morphological, physiological, health, phenological, physicochemical aspects and the most

outstanding industrial or technological qualities that allow its varietal description.

f. Genetic origin of the variety.

g. Geographical origin of the plant’s raw material of the new variety to be protected

h. The application for the breeder’s certificate for a protected variety abroad must indicate all the
countries in which said certificate is registered, including the date of registration.

3) Does the application procedure have a cost?

In general, the applicant will have to pay the correspondent official taxes related to the different stages
of the procedure -e-g: application fee, a publication fee of the variety in the Official Gazette, DUS test
performed by the authority.

The applicant can file the application on their own, but it is necessary to point out that the procedure
requires specific expertise to follow up the application through the different stages until the issuance of
the breeder’s title. That is why it is advisable to consult with experts -engineers and lawyers- that can
advise the applicant in connection with the best way to prepare and file the application, do the follow-
up, answer the correspondent office actions handed down by the Authority, to avoid mistakes and
objections.

4) Could I commercialize the variety?

In some countries the procedure foe obtaining the correspondent certificate to commercialize the variety
follows a different and parallel procedure of the one followed to obtain the breeder’s certificate.

5) I want to protect my variety in more than one country, could I file multiple applications?

The answer is yes. It is possible for the applicant to file multiple applications in many countries. The
protection of the new variety is territorial. It is necessary to take into consideration the date when the
first application is filed in order to claim the correspondent priority over the new variety

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6. How does the grant of exclusive rights on plant protection encourage innovation and
investment in the agricultural sector?
The grant of exclusive rights on plant protection encourages innovation and investment in the
agricultural sector in several ways. Firstly, it provides an incentive for plant breeders to invest in
research and development to create new and improved plant varieties that meet the needs of farmers
and consumers. The exclusive rights granted to the holder of plant variety protection enable them to
recoup the costs of this research and development by restricting others from using or selling the
protected variety without permission. This helps to ensure that the breeder is able to obtain a return
on their investment.
Secondly, the grant of exclusive rights encourages the development of a competitive market for
plant varieties, as breeders are incentive to create new and improved varieties that offer unique
features or benefits to farmers and consumers. This competition can lead to better, more diverse
plant varieties that are better adapted to local conditions and more resistant to pests and diseases.
Finally, the grant of exclusive rights on plant protection also benefits farmers and consumers by
ensuring that they have access to high-quality, reliable plant varieties that are protected from
unauthorized use or infringement. This helps to maintain the integrity of the plant breeding system
and ensures that farmers and consumers can rely on the quality and performance of the plant
varieties they use.
7. What is the significance of exclusive rights on plant protection for small and marginalized
farmers?
The grant of exclusive rights on plant protection is significant for small and marginalized farmers as
it encourages the development and dissemination of new and improved plant varieties. Through
exclusive rights, plant breeders and companies can recoup their investment in research and
development, which can lead to the availability of better and more resilient plant varieties that are
better suited to local conditions. This, in turn, can benefit small farmers who may not have the
resources to invest in research and development themselves, by giving them access to more
productive and disease-resistant crops. Furthermore, the exclusive rights of plant protection also
provide a framework for ensuring that farmers have access to high-quality seeds and are protected
against the sale of substandard or fraudulent seed. The rights also ensure that farmers have the
freedom to save, exchange and sell farm-saved seed of protected varieties, as long as they do not sell
the seed under the protected variety's name.

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8. What are farmers' rights? Comparatively analyze between Breeders' Rights vs. Farmers'
Rights.
Farmers' rights are a set of rights that recognize the important role that farmers play in conserving
plant genetic resources and promoting agricultural biodiversity. These rights include the right to
save, use, exchange, and sell farm-saved seeds and propagating material of protected plant varieties.
Farmers' rights also include the right to participate in decision-making processes related to the
conservation and sustainable use of plant genetic resources.
Breeders' Rights vs. Farmers' Rights:
Breeders' rights and farmers' rights can sometimes be in conflict. While breeders' rights provide an
incentive for plant breeders to invest in developing new plant varieties, they also limit the ability of
farmers to freely use and exchange seed of protected varieties. This can have negative consequences
for small-scale farmers who rely on saving and exchanging seed to maintain crop diversity and
adapt to changing environmental conditions.
On the other hand, farmers' rights can sometimes be seen as a threat to breeders' rights because they
allow farmers to use and exchange seed of protected varieties without the permission of the breeder.
This can reduce the economic incentive for plant breeders to invest in developing new varieties,
which can limit innovation in the agricultural sector.
To address this conflict, some legal frameworks, such as the International Treaty on Plant Genetic
Resources for Food and Agriculture, seek to balance the rights of plant breeders and farmers by
recognizing the importance of both groups and promoting the conservation and sustainable use of
plant genetic resources. These frameworks aim to protect breeders' rights while also recognizing and
promoting the important role that farmers play in maintaining agricultural biodiversity and adapting
to changing environmental conditions.

9. What are researcher's rights in relation to plant genetic resources?

Answer: Researchers play a crucial role in plant genetic resource conservation, utilization, and
development. They contribute to the development of new plant varieties and technologies that
benefit agriculture and food security. Researchers' rights are enshrined in international treaties such
as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). The

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 treaty recognizes the importance of research and provides for the exchange of plant genetic
resources for research purposes, subject to certain conditions.
Under the ITPGRFA, researchers are entitled to access and use plant genetic resources for research
and breeding purposes, and to share the benefits derived from their research. However, they are also
obligated to comply with certain conditions, including the requirement to acknowledge the source of
the genetic material and to share the benefits arising from commercialization of resulting products
with the country of origin of the genetic material.
10. What are farmers' rights and the rights of communities in relation to plant genetic
resources?
Answer: Farmers and local communities are the primary custodians and users of plant genetic
resources, particularly in developing countries. Their knowledge, innovations, and practices are
essential to the conservation and sustainable use of plant genetic resources. The rights of farmers
and local communities in relation to plant genetic resources are recognized in international
instruments such as the Convention on Biological Diversity (CBD) and the ITPGRFA.
Under the CBD, farmers and local communities have the right to participate in decision-making on
matters that affect their access to plant genetic resources, as well as the benefits derived from their
use. They also have the right to benefit from the use of traditional knowledge associated with plant
genetic resources. The ITPGRFA recognizes the contribution of farmers and local communities to
the conservation and development of plant genetic resources, and provides for their participation in
decision-making on matters related to the treaty.
In addition, farmers have the right to save, use, exchange, and sell farm-saved seeds and other
propagating material of the plant varieties they have traditionally used and developed. This is
commonly referred to as "farmers' rights." The ITPGRFA recognizes farmers' rights and encourages
their implementation by its contracting parties.
Overall, the rights of farmers and local communities are important for the conservation and
sustainable use of plant genetic resources, as well as for the promotion of equitable sharing of
benefits derived from their use.
11. How can Traditional Knowledge be used to promote sustainable development?
Traditional Knowledge can be used to promote sustainable development by providing solutions to
environmental challenges such as climate change, biodiversity loss, and natural resource management.

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TK can also provide a basis for the development of community-based enterprises that promote local
livelihoods and economic development.
12. What is the relationship between Traditional Knowledge and biopiracy?
Biopiracy refers to the unauthorized commercial use of genetic resources or Traditional Knowledge
without the prior informed consent of the communities that hold them. The misappropriation of TK can
result in the loss of cultural heritage and biodiversity, and deprive indigenous and local communities of
their rights and benefits.
13. What is the role of prior informed consent (PIC) in the protection of Traditional Knowledge?
Prior informed consent (PIC) is a key principle in the protection of Traditional Knowledge. PIC requires
that the consent of the communities that hold TK be obtained before any commercial or non-
commercial use of their knowledge. PIC is important for respecting the rights and interests of the
communities and ensuring that they share in the benefits arising from the use of their knowledge.

14. What is the role of the Nagoya Protocol in protecting Traditional Knowledge?
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization (Nagoya Protocol) provides a framework for the protection
of Traditional Knowledge and the sharing of benefits arising from the use of genetic resources. The
Protocol includes provisions for prior informed consent (PIC) and the fair and equitable sharing of
benefits.

15. What is the relationship between Traditional Knowledge and the patent system?
The patent system has been criticized for allowing the misappropriation of Traditional Knowledge and
the patenting of genetic resources without the consent of the communities that hold them. There is a
need for the patent system to be reformed to ensure that it respects the rights and interests of indigenous
and local communities.
What are the international initiatives taken for the protection of Traditional Knowledge (TK) under
intellectual property rights (IPR)?
There have been various international initiatives taken for the protection of Traditional Knowledge (TK)
under IPR. Some of these initiatives are:
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore: The WIPO Intergovernmental Committee was established in 2000 and has
been working on developing an international legal framework for the protection of TK and genetic
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resources. The committee has been discussing issues such as the protection of TK, access to genetic
resources, and benefit-sharing.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP): The UNDRIP recognizes
the right of indigenous peoples to maintain and control their TK. The declaration calls for the protection
of indigenous peoples' intellectual property rights and their right to participate in decision-making
processes.
Convention on Biological Diversity (CBD): The CBD is an international treaty that aims to promote the
conservation and sustainable use of biodiversity. The convention recognizes the importance of TK for
the conservation of biodiversity and the sustainable use of its components.
Nagoya Protocol: The Nagoya Protocol is a supplementary agreement to the CBD that aims to ensure
the fair and equitable sharing of benefits arising from the utilization of genetic resources. The protocol
recognizes the importance of TK in the conservation and sustainable use of biodiversity.
World Intellectual Property Organization (WIPO) Traditional Knowledge Digital Library: The WIPO
Traditional Knowledge Digital Library is an online database that provides access to TK documentation
from various countries.
These international initiatives have played a significant role in raising awareness about the importance
of protecting TK and in developing legal frameworks for its protection. However, the implementation of
these initiatives at the national level remains a challenge, and more work needs to be done to ensure
effective protection of TK.

16. How is traditional knowledge protected under the existing modes of intellectual property, and
what are the issues thereof?
Traditional knowledge can be protected under the existing modes of intellectual property, such as
patents, trademarks, and copyrights. However, there are significant issues with this approach. One of the
main issues is that traditional knowledge is often communal and cannot be attributed to any one
individual or group. This poses a challenge for intellectual property regimes that are based on individual
ownership and exclusive rights. Another issue is that traditional knowledge is often oral and unwritten,
which can make it difficult to define and identify. This can create a problem when it comes to enforcing
intellectual property rights.
17. What are the consequences of misappropriation of traditional knowledge, and how can it be
prevented?
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The consequences of misappropriation of traditional knowledge can be significant. It can lead to the loss
of cultural heritage and identity, as well as the exploitation of indigenous and local communities.
Misappropriation can also stifle innovation and creativity by preventing communities from using their
traditional knowledge to develop new technologies and products. To prevent misappropriation, several
measures can be taken. These include the establishment of legal frameworks that recognize and protect
traditional knowledge, the development of community protocols and codes of ethics, and the use of
benefit-sharing agreements that ensure that communities are fairly compensated for the use of their
knowledge. Additionally, education and awareness-raising efforts can help to promote respect for
traditional knowledge and the rights of indigenous and local communities.
18. What is the concept of Prior Informed Consent (PIC) in the context of traditional knowledge?
Prior Informed Consent (PIC) is a concept that requires the consent of indigenous and local
communities to be obtained before their traditional knowledge is used or accessed by outsiders. This
means that anyone seeking to use traditional knowledge must first inform the community about the
proposed use, and obtain their agreement before proceeding. PIC is seen as a key mechanism for
ensuring that the rights and interests of traditional knowledge holders are respected, and that they are
able to maintain control over the use and dissemination of their knowledge.
19. What is the Agreement on Benefit Sharing (ABS) in the context of traditional knowledge?
The Agreement on Benefit Sharing (ABS) is a concept that seeks to ensure that the benefits arising from
the use of traditional knowledge are shared fairly and equitably between the traditional knowledge
holders and those who use their knowledge. ABS recognizes that traditional knowledge is often held
collectively, and that the benefits arising from its use should be shared with the entire community. ABS
agreements can take a variety of forms, such as financial compensation, the transfer of technology, or
the sharing of intellectual property rights. The goal of ABS is to ensure that the benefits arising from the
use of traditional knowledge contribute to the sustainable development of the communities that hold this
knowledge.
20. How can traditional knowledge be defensively protected through legislative efforts, including
constitutional provisions?
Defensive protection of traditional knowledge can be achieved through legislative efforts, including the
inclusion of constitutional provisions. These provisions can establish legal frameworks that recognize
and protect traditional knowledge, and ensure that indigenous and local communities have the right to

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control and benefit from their knowledge. Some of the key elements of constitutional provisions for the
protection of traditional knowledge include:
Recognition of the right of indigenous and local communities to their traditional knowledge, including
the right to maintain, control, protect, and develop this knowledge.
 Recognition of the collective and dynamic nature of traditional knowledge, and the need to
respect the customary laws and practices of the communities that hold this knowledge.
 Establishment of mechanisms for the protection of traditional knowledge, such as the
requirement for prior informed consent and benefit-sharing agreements.
Recognition of the importance of traditional knowledge for the sustainable development of indigenous
and local communities, and the need to promote the use of this knowledge in a manner that respects the
rights and interests of these communities.
Constitutional provisions can also provide a basis for the development of national laws and policies that
protect traditional knowledge. These laws can include provisions for the registration and protection of
traditional knowledge, as well as the establishment of legal mechanisms for the enforcement of these
rights. By providing a strong legal foundation for the protection of traditional knowledge, constitutional
provisions can help to ensure that this knowledge is preserved and passed on to future generations.
21. How is traditional knowledge protected under the existing modes of intellectual property, and
what are the issues thereof?
Traditional knowledge can be protected under the existing modes of intellectual property, such as
patents, trademarks, and copyrights. However, there are significant issues with this approach. One of the
main issues is that traditional knowledge is often communal and cannot be attributed to any one
individual or group. This poses a challenge for intellectual property regimes that are based on individual
ownership and exclusive rights. Another issue is that traditional knowledge is often oral and unwritten,
which can make it difficult to define and identify. This can create a problem when it comes to enforcing
intellectual property rights.
22. What are the consequences of misappropriation of traditional knowledge, and how can it be
prevented?
The consequences of misappropriation of traditional knowledge can be significant. It can lead to the loss
of cultural heritage and identity, as well as the exploitation of indigenous and local communities.
Misappropriation can also stifle innovation and creativity by preventing communities from using their
traditional knowledge to develop new technologies and products. To prevent misappropriation, several
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measures can be taken. These include the establishment of legal frameworks that recognize and protect
traditional knowledge, the development of community protocols and codes of ethics, and the use of
benefit-sharing agreements that ensure that communities are fairly compensated for the use of their
knowledge. Additionally, education and awareness-raising efforts can help to promote respect for
traditional knowledge and the rights of indigenous and local communities.
23. What is the concept of Prior Informed Consent (PIC) in the context of traditional knowledge?
Prior Informed Consent (PIC) is a concept that requires the consent of indigenous and local
communities to be obtained before their traditional knowledge is used or accessed by outsiders. This
means that anyone seeking to use traditional knowledge must first inform the community about the
proposed use, and obtain their agreement before proceeding. PIC is seen as a key mechanism for
ensuring that the rights and interests of traditional knowledge holders are respected, and that they are
able to maintain control over the use and dissemination of their knowledge.
24. What is the Agreement on Benefit Sharing (ABS) in the context of traditional knowledge?
The Agreement on Benefit Sharing (ABS) is a concept that seeks to ensure that the benefits arising from
the use of traditional knowledge are shared fairly and equitably between the traditional knowledge
holders and those who use their knowledge. ABS recognizes that traditional knowledge is often held
collectively, and that the benefits arising from its use should be shared with the entire community. ABS
agreements can take a variety of forms, such as financial compensation, the transfer of technology, or
the sharing of intellectual property rights. The goal of ABS is to ensure that the benefits arising from the
use of traditional knowledge contribute to the sustainable development of the communities that hold this
knowledge.
25. How can traditional knowledge be defensively protected through legislative efforts, including
constitutional provisions?
Defensive protection of traditional knowledge can be achieved through legislative efforts, including the
inclusion of constitutional provisions. These provisions can establish legal frameworks that recognize
and protect traditional knowledge, and ensure that indigenous and local communities have the right to
control and benefit from their knowledge. Some of the key elements of constitutional provisions for the
protection of traditional knowledge include:
Recognition of the right of indigenous and local communities to their traditional knowledge, including
the right to maintain, control, protect, and develop this knowledge.

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  Recognition of the collective and dynamic nature of traditional knowledge, and the need to
respect the customary laws and practices of the communities that hold this knowledge.
 Establishment of mechanisms for the protection of traditional knowledge, such as the
requirement for prior informed consent and benefit-sharing agreements.
Recognition of the importance of traditional knowledge for the sustainable development of indigenous
and local communities, and the need to promote the use of this knowledge in a manner that respects the
rights and interests of these communities.
Constitutional provisions can also provide a basis for the development of national laws and policies that
protect traditional knowledge. These laws can include provisions for the registration and protection of
traditional knowledge, as well as the establishment of legal mechanisms for the enforcement of these
rights. By providing a strong legal foundation for the protection of traditional knowledge, constitutional
provisions can help to ensure that this knowledge is preserved and passed on to future generations.

Long answer type questions

1. Critically analyze the concept of Plant Varieties under IPR.

Scientific advancement in the field of biotechnology and tissue culture has ushered in an agricultural
revolution. Development of new plant varieties and better quality of seeds have accelerated the
agricultural development. It has, therefore, been internationality recognized that rights of plant breeders
should not only be recognized but a sui generis legal mechanism be evolved to protect their rights as
well. At global level the international convention for protection of NewVarieties of Plant (UPOV) was
concluded in 1961. The UTO-TRIPs also recognized the need to develop legal system for protection of
plant varieties either through patent or an effective sui generis system. India being a member of
WTOalso realized the need to protect interests of plant breeders, farmers and promote conservation of
genetic resources and seed industry. It was thought proper to enact a separate sui generis legislation for
this purpose.

B. UPOV Convention, 1961

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The Internation Union of Protection of New Varieties of plants was concluded in 1961. It was
subsequently amended in 1972, 1978 and 1991. As on April 15, 2001 it has 47 state parties. India has
also become a member of the Union.

C. Indian Law-The Protection of Plant Varieties and Farmers' Rights Act, 2001

Being member of UPOV convention and WTO India was required to provide legal protection to plant
varieties and protect the rights of plant breeders. The main focus of the law is to define plant breeders'
rights, extend protection to all categories of plants excluding micro-organism. The Indian law is
primarily based on UPOV convention. But it includes number of provisions, not present in UPOV
convention. For instance, it recognizes the role of farmers as cultivators and conservers and the
contribution of traditional rural and tribal communities in the country's agro-biodiversity by making
provision for benefit sharing and compensation and also protecting the traditional rights of farmers.

(i) Need and Justification of the Act

The concept of plant breeders' rights arises from the need to provide incentives to plant
breeders in creative work of research which sustains agricultural progress through return on
investment made in research and persuade the researcher to share the benefit of his creativity
with society. It is considered necessary to recognize and protect rights of farmers in respect
of their contribution made in consuming, improving and making available plant genetic
resources for development of new plant varieties. It is also necessary to protect plant
breeders' rights to stimulate investment for research and development both in public and
private sector for the development of new plant varieties. The grant of such protection will
facilitate growth of seed industry, which will ensure the availability of high quality seeds and
plant material to farmers.

2. Critcally analyze the evolution of the PPV&FR Act.

The PPV&FR Act was introduced to meet the objective of providing integrated protection to both plant
varieties and farmers’ rights. Although the legislation was enacted in 2001, its provisions could not
come into force until the establishment of Plant Varieties and Farmers’ Rights Authority in 2005. The
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main objective of the PPV&FR Act is to recognise and protect the rights of farmers in respect of their
contribution toward conserving, improving and making available plant genetic resources for the
development of new plant varieties.

The drafting history of the PPV&FR Act demonstrates the scale of challenges involved with the TRIPS-
compliant UPOV Convention. The draft bill for the PPV&FR Act, which was introduced in 1993/1994,
underwent three revisions and was reintroduced in 1996, 1997 and 2001. It aimed bring some harmony
between the conflicting rights of farmers and plant breeders and to equate farmers’ rights with those of
breeders.

The PPV&FR Act is based on UPOV, but it includes number of provisions that are not present in
UPOV. The Act recognises the role of farmers as cultivators and conservers and the contribution of
traditional rural and tribal communities to the country’s agro-biodiversity by making provision for
benefit sharing and compensation and protecting the traditional rights of farmers.

As well as providing the possibility for the registration of farmers’ varieties, the PPV&FR Act
specifically recognises farmers’ rights and the contribution of traditional communities in identifying
biological resources from which new plant varieties can be bred.

Main provisions of the Act

The Act ensures that farmers can save, use, sow, re-sow, exchange, share or sell their farm produce
including seed of a variety protected under the PPV&FR Act in the same manner as they were entitled
before the coming into force of the Act. The exception is that the farmer is not entitled to sell branded
seed of a variety protected under the Act.

Farmers are eligible for recognition and rewards for the conservation of plant genetic resources of land
races and wild relatives of economic plants. The PPV&FR Act also has provisions for compensation
and penalties, benefit sharing and establishment of the gene fund.

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Being derived from UPOV, the PPV&FR Act has a similar definition of the term variety, and lays down
similar prerequisites for the registration of a new plant variety, namely novelty, distinctiveness,
uniformity and stability.

However, the exclusion of varieties which involve any technology which is injurious to the life or health
of human beings, animals or plants in the PPV&FR Act leads to a change in the scope of protection
compared to that afforded by UPOV.

In addition, the PPV&FR Act provides for a shorter period of protection for plant varieties than UPOV.

The PPV&FR Act provides protection for nine years in the case of trees and vines (renewable up to 18
years); and six years in the case of other crops (renewable up to 15 years).

The UPOV however provides protection for plant varieties of all plant genera for a period of not less
than 20 years from the date of the grant of the breeder’s right for all varieties except for trees and vines
for which the protection period shall not be less than 25 years.

Further development needed

The PPV&FR Act is in a nascent form and provides only a broad perspective on many points.

Further development will be required to meet the different objectives of the Act, namely protecting the
interests of both farmers and breeders and harmonising issues such as gloomier bearing on breeders’
rights, by permitting unrestricted commercial exploitation of the protected variety by farmers with
rudimentary restriction on the use of branding of the protected variety.

3 Briefly analyze Plant Variety Protection and the TRIPS Agreement.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement)
establishes minimum standards for intellectual property protection. Inter alia, the TRIPS Agreement

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requires the members of the World Trade Organization (WTO) to provide protection for plant varieties
by patent or by what is called an effective sui generis system of protection or by a combination of such
systems (Article 27(3)(b)). Under the TRIPS Agreement, all developing countries other than those
categorized as least developed countries (“LDCs”) had to provide intellectual property rights protection
for plant varieties by January 1, 2000. LDCs have until January 1, 2005, to meet the same obligation.

Assuming that a plant variety falls within a protected genera or species, it is eligible for protection under
the 1978 Act only if it is: (1) new, (2) distinct from existing or commonly known varieties, (3)
homogenous or uniform and (4) stable. (art. 6) When a variety fulfils these four criteria, it is listed in a
national register or catalogue which publicly discloses that the variety is protected. (FIS/ASSINSEL,
2001a).

Novelty. To avoid protection for plant varieties that have already been exploited or are a matter of
common knowledge, a new variety in which a breeder seeks protection must not have been sold on the
market for more than a specified period of years prior to the date of application for protection. The 1978
Act specifies the maximum number of years during which such pre-application sales have occurred,
with different periods of time set for different types of plants as well as for sales within the territory of
the applicant state versus the territory of other states. (art. 6(1)(b)) (Leskien & Flitner, 1997, p. 50)

Distinctness. The 1978 Act states that a protectable plant variety must be "clearly distinguishable in one
or more important characteristics from any other variety whose existence is a matter of common
knowledge at the time when protection is applied for." (art. 6(1)(a)). Although the treaty itself does not
further define distinctness, the Guidelines for the Conduct of Tests for Distinctness, Homogeneity and
Stability (UPOV Guidelines) use both qualitative and quantitative plant characteristics, including such
visible attributes as leaf shape, stem length and color, to determine if the difference between varieties is
"clear and consistent." As explained below in the analysis of the UPOV 1991 Act, the concept of
distinctness is critical to determining the scope of a breeder’s right in plants that are closely related but
not identical to a protected variety.

Homogeneity. Under the 1978 UPOV Act, a variety has to be "sufficiently homogeneous, having regard
to the particular features of its sexual reproduction or vegetative propagation." (art. 6(1)(c)). The UPOV
Guidelines further clarify that to be considered homogeneous, the variation shown by a variety must be
"as limited as necessary to permit accurate description and assessment of distinctness and to ensure
stability." The homogeneity requirement has been criticized by commentators as discouraging
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variability in plant varieties that are often useful for sound agricultural practices and as denying
protection to breeders of cultivated landraces that exhibit diversity traits. (Leskien & Flitner, 1997, pp.
51 and 52) It is thus one of the sources for the criticisms identified in paragraph 1.3.6.1 above that plant
breeders’ rights are reducing plant genetic diversity by rewarding breeders of uniform plant varieties.

Stability. The stability requirement is a temporal one, requiring the breeder to show that the essential
characteristics of its variety are homogeneous or uniform over time, even after repeated reproduction or
propagation. (art. 6(1)(d)) In practice, what has been shown to be homogeneous is usually considered to
be stable as well. For this reason, the stability requirement has engendered the same sort of critiques as
the uniformity requirement in its preclusion of protection for cultivated landraces and other traditional
plant varieties. (Leskien & Flitner, 1997, p. 52)

Protected material

The 1978 Act requires its signatories to protect a variety’s reproductive or vegetative propagating
material. The Act does not require protection of harvested material, with the exception of ornamental
plants that are used for commercial propagating purposes. (art. 5(1))

Breeders’ exclusive rights

Under article 5 of the 1978 Act, any person seeking to engage in the following three acts, with respect
to a protected variety’s reproductive or vegetative propagating material, must obtain the prior
authorization of the breeder: (1) production for purposes of commercial marketing, (2) the offering for
sale and (3) marketing. The 1978 Act does not, however, require member states to extend these
exclusive rights to harvested material or other marketed products.

National treatment and reciprocity

Member states must grant the three exclusive rights referred to in the preceding paragraph in the same
manner to both national breeders and to breeders who reside in or are nationals of other 1978 Act
member states. However, where a state extends legal protection to a specific genus or species, or where
it provides more extensive exclusive rights to breeders than the rights required under the treaty,
reciprocity is permitted. Thus, a state providing these additional rights may restrict protection to
breeders from those member states that apply the Act to the same genus or species, or that provide such
additional exclusive rights to their own nationals. (arts. 3 and 5(4))

Term of protection
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The 1978 Act requires a minimum term of protection of fifteen years, with the exception of vines, forest
trees, fruit trees and ornamental trees, which are protected for no less than eighteen years.

Exceptions and limitations.

Two major exceptions and limitations to exclusive rights exist under the 1978 Act: (1) a breeders’
exemption and (2) a farmers’ privilege. The Act also permits members to impose compulsory licences.

Breeders’ exemption. This exemption in article 5(3) precludes member states from granting to breeders
of protected varieties the right to authorize or refrain from authorizing other breeders seeking to use the
protected variety to create new varieties or to market those new varieties. States are permitted to grant
breeders such an authorization right only if the repeated use of the protected variety is necessary for the
commercial production of the new variety. According to the International Association of Plant Breeders
and the International Seed Federation, this breeders’ exemption "is essential for continued progress from
plant breeding." (FIS/ASSINSEL, 1999)

Farmers’ privilege. The focus of the 1978 Act on commercial exploitation of protected plant varieties
has been interpreted to allow the use of seeds and propagating material for noncommercial purposes
without the breeder’s prior authorization. (Crucible Group, 2001, p. 170) In national plant variety
protection laws, this implicit noncommercial exception most frequently benefits farmers who purchase
the seeds of protected varieties. The scope of this so-called farmers’ privilege varies widely, however.
Some nations only permit farmers to plant seeds saved from prior purchases to be used on their own
land holdings, while others allow them not only to replant but also to sell limited quantities of seeds for
reproductive purposes, a practice often referred to as "brown bagging." (Leskien & Flitner, 1997, p. 61)

Compulsory licences in the public interest. Article 9 of the 1978 Act permits members to restrict
breeders’ exclusive rights for "reasons of public interest." Where such restrictions are enacted to ensure
the widespread distribution of the variety (such as where the breeder fails to supply the demand for the
variety in a reasonable quantity and price or unreasonably refuses to license the variety to third parties),
the breeder must receive equitable remuneration.

The 1991 UPOV Act

The limited scope of the 1978 Act led a number of member states of the UPOV to adopt a revised Act
with enhanced rights for plant breeders. The major revisions of the 1991 Act are discussed below:

Subject matter requirements

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Phased-in protection of all genera or species. Unlike its predecessor, the 1991 Act requires states to
protect at least fifteen plant genera or species upon ratifying or acceding to the Act, and to extend
protection to all plant varieties within ten years. (art. 3(2)) It also contains a definition of a plant
"variety" as a "plant grouping within a single botanical taxon of the lowest known rank" which can be
"defined by the expression of the characteristics resulting from a given genotype or combination of
genotypes; distinguished from any other plant grouping by the expression of at least one of the said
characteristics; and considered as a unit with regard to its suitability for being propagated unchanged."
(art. 1(vi)) No definition of "variety" appears in the 1978 Act, which indicates that member states to that
earlier treaty have greater discretion in defining the characteristics of plant groupings that qualify for
protection.

Dual protection with breeders’ right and patent permitted. In response to demands from breeders in
industrialized counties, the 1991 Act removed the 1978 Act’s ban on dual protection and now permits
member states to protect the same plant variety with both a breeders’ right and a patent. (Watal, 2000, p.
149)

Protection of discovered varieties. The 1991 Act makes explicit the 1978 Act’s implicit requirement that
discovered varieties be protected. It does so through article 1(iv)’s definition of a "breeder" as including
a "person who bred, or discovered and developed, a variety."

Eligibility requirements

The four eligibility requirements that must be demonstrated to merit protection for a specific variety -
novelty, distinctness, uniformity and stability - are preserved in the 1991 Act, subject to only minor
changes in scope and wording. (arts. 7-9) Thus, the 1991 Act has received the same criticism as the
1978 Act for its encouraging of genetic standardization and its inability to protect more diverse plant
varieties, traditional varieties or cultivated landraces.

Breeders’ exclusive rights in protected material

Extensive additions to the 1978 Act were made with respect to the exclusive rights enjoyed by breeders
in protected material of plant varieties.

Enumerated exclusive rights in propagating material. The breeder’s prior authorization must be obtained
for the use of reproductive or vegetative propagating material of the variety for (1) production or
reproduction, (2) conditioning for the purpose of propagation, (3) offering for sale, (4) selling or

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marketing, (5) exporting, (6) importing and (7) stocking for any of these purposes. (art. 14) (Leskien &
Flitner, 1997, p. 57)

Extension of rights to harvested material and products. These exclusive rights apply not only to
propagating material but also to harvested material, where the harvest has been obtained through an
unauthorized use of the propagating material and the breeder has not had a reasonable opportunity to
exercise his or her right in relation to that material. In addition, member states are permitted but not
required to provide additional rights to breeders, including rights in products made directly from
harvested material.

4. Critically analyze the scope of UPOV Convention.

The members of the Union have undertaken to grant plant breeders’ rights in respect of new plant
varieties in accordance with the principles established in the UPOV Convention and thus on an
internationally harmonized basis.

. The basic principles of the UPOV Convention, as they were introduced in the 1961 and 1978 Acts, had
been seen to work well in practice. These same principles are retained in the 1991 Act. The 1991
revision was, in effect, the fine-tuning of the Convention to equip it for the twenty-first century.

If the UPOV Convention was working well, why was it necessary to revise it in 1991? When the
Convention was adopted in 1961, it created certain concepts that were new to intellectual property. By
1991, some thirty years of experience had been gained in the application of these concepts, and
members of the Union were aware of some improvements that could be made. The discovery of the
structure of DNA was announced in 1953. During the period 1961 to 1991, consequential scientific
discoveries and technological developments took place, which had profound implications for plant
improvement and also for plant variety protection. The changes made in 1991 were to improve the
system on the basis of experience or to respond to scientific and technological progress.

The UPOV Convention4 established for members of the Union a legal framework with the following
key features:

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• common agreement on essential notions: variety and breeder;
• genera and species to be protected;
rules for national treatment and priority, which establish relations between members of the Union and
provide for the legal mechanism for nationals and residents of a member to benefit from protection in
the territories of other members;
• the conditions for the grant of protection: novelty, distinctness, uniformity and stability and a suitable
variety denomination;
• a minimum scope of protection;
• a minimum duration of protection;
• clear delimitation of the grounds to nullify or cancel the breeder’s right.

With the proposed "Protection of Plant Varieties and Farmers' Rights Bill" being referred to a select
parliamentary committee, the stage is set to usher in an intellectual property rights regime in agriculture.
A new piece of legislation is invariably accompanied with institutional changes; be it establishment of
new ones or restructuring the existing ones. Considering techno-legal nature of the bill, such changes
have far reaching in consequences. The technical, legal and institutional lessons that emanate from
comparing PVP legislations world over and suggestions for refining the proposed bill are outlined
below.
A PVP framework comprises of a number of provisions and clauses. Ten technically important ones
have been chosen to make a comparative analysis among legislations of 33 nations and UPOV acts (see
Box1 for salient features). Novelty, distinctness, uniformity and stability (NDUS) are the fundamental
criteria for according protection to plant varieties. A critical instrument for safeguarding 'public interest'
is compulsory licensing. This provision enables the state to ensure availability of adequate quantities of
propagating material of protected varieties at reasonable prices. These two clauses, therefore, find a
place in all the bills. Some countries extend protection to all new varieties while few others have
specified the list of genera and species eligible for protection, with a provision for extending the list. In
order that protected varieties come into public domain at the earliest, developing economies have opted
for shorter duration of protection. Researcher's privilege and farmer's , privilege find explicit mention in
the legislation's of seventeen and eleven countries respectively. Apart from protecting absolutely novel
varieties, twelve countries have provisions for the protection of essentially derived varieties (EDVs), to
prevent cosmetic breeding. Only Zimbabwe has the necessary provision for protecting already existing
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varieties. Member countries of conventions and regional agreements grant rights to breeders from other
member countries. Alternatively, reciprocal treatment is on a bilateral basis. Penalties for infringement
and other offences are usually restricted to monetary compensations. Only a few legislation propose
imprisonment and other criminal proceedings as deterrents.

The title of the legislation is important as it reveals prima facie, the underlying emphasis and overall
intention. While PVP laws of Poland, UK, Netherlands and Kenya address seed industry in their titles,
animal breeds get an explicit mention in the Czech title. Inter-alia, promoting research, providing
incentives and technology transfer are cited as the purpose for establishing the law on PVP. Unique
Features The comparison reveals certain interesting and unique features in some PVP laws. These are
highlighted in box 2. New Zealand has included Fungi in the definition of Plant. Poland has made
provisions to establish a "Seed Industry Fund" with fifteen well-defined objectives; maintenance
breeding, training of breeders and conservation of plant genetic resources being some important ones. In
addition to plants, Russia and Czechoslovakia provide protection to animal breeds also. Under the PVP
law of the UK, discovery of plant variety growing in the wild or occurring as genetic variant, whether
artificially induced or not, is also accorded protection. Slovenia bestows farmers' privilege to only small
farmers. In an attempt to balance the rights of the inventor and the right to reuse seeds by farmers, the
farmers' privilege is limited for a period of two years in Russia and Uzbekistan. Plant patents are
common in Italy, Russia, Belarus, Uzbekistan and Moldavia. Apart from the public sector, adequate
representation of farmers (USA), the private sector (USA, France and Poland) and various associations
(Portugal) have been ensured in the respective PVP authorities. Importation of potentially deleterious
seeds is prohibited under the Kenyan Act; apparently to prevent problems arising out of cross-
pollination. Some countries have a common framework of PVP. The Andean countries under the
CARTAGENA agreement (Venezuela, Colombia and Bolivia along with Spain) present a good
example. Poland stands out by adding economic value to NDUS criteria. The Protection of Plant
Variety and farmer's Rights Act ("the Act") was passed by the Parliament in 2001 owing to the
obligation of the Indian Government under Article 27 (3)(b) of the TRIPS Agreement. This act is
unique legislation owing to the fact that is the first legislation of its kind to make provisions for
recognizing the rights of farmers.

5. Critically describe the Registration of Varieties.

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The act seeks to grant protection to plant breeders who have developed plant varieties by the use of their
intellectual capabilities so as to boost the agricultural development in the country.

The various plant varieties that can be protected through registration under the Act are:

1. New variety: As is evident from the name, these are the varieties that have been developed
anew i.e. they do not exist naturally. The distinguishable characteristics are generally easily
discernible in cases of new varieties.
2. Essentially Derived Variety ("EDV"): These are the varieties that have predominantly been
derived from an initial variety. They are different from new varieties as they are fundamentally
similar to the initial variety to such an extent that the characteristic that distinguishes them is
considerable hard to discern. It is for this reason that the identification of EDVs is a
fundamentally tedious process.
Generally developed through (non-exhaustive list):

a. Genetic Engineering

b. Mutation

c. Tissue Culture Derived

d. Back Cross Derivative

e. Any other (Ploidy change etc.)

3. Extant Variety: The Indian Legislation also provides for the Registration for existing varieties.
These are the varieties that are already in existence but still warrant protection for one reason or
another. These include:

a. Varieties notified under Section 5 of the Seeds Act,1966.

b. Farmer's variety

c. Varieties in Common Knowledge("VCK")

d. Varieties in Public Domain

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 4. Farmers' Variety: These are the varieties that have been traditionally cultivated or evolved by
farmers in their field and their existence is a matter of common knowledge within the
community.

Who can file an application for protection?

Under Section 16 of the Act, an application for the registration of a plant variety can be filed by any of
the following persons:

 Breeder;
 Successor of breeder;

 Assignee of breeder;

 Farmer, group or community or

 University or publicly funded agricultural institution.

Procedure of Application for the varieties specified under Section 14, 15

1. The application for registration shall be made to the Registrar and for a variety clearly stating the
denomination of the same in the manner prescribed under Form 1 of the Regulations.
2. It shall contain the entire passport data of the parental lines from which the variety has been
derived along with all the information related to contribution of various parties in its
development (Duty to disclose the source).

3. Once the application has been made, the same can either be:

a. Accepted,

b. Rejected, in which case a reasonable opportunity of representation has to be accorded,

c. Sent back for amendment.

4. Documents Required while making the application (Section 18 of the Act):

a. Statement of distinctiveness, uniformity and stability.

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 b. Declaration that the genetic material or parent material has been lawfully acquired.

c. If application is being made by exercising right to succession or assignment, a proof of

the same shall be attached.

d. Seeds shall also be made available for tests, the ,manner of which has been prescribed in
the regulations.

e. The duty of Disclosure under Section 40 must be adhered to i.e. if there has been any
contribution in the development of the variety by any tribal group or community, the
breeder is required to disclose the same in his application. Willful failure to do so would
lead to rejection of the application.

f. If application is being made by a person authorized under Sec 16(1)(e), Letter of

authorization required(Form PV 1)

g. If application is being made by a person by virtue of succession or assignment, the

succession certificate or any other certificate that proves such succession or assignment
must be attached in the manner prescribed in Form PV 2 as laid down under Section
18(3).

5. Objections:
Once the application has been accepted (with or without conditions or limitations), it shall be
advertised calling for objections. This has to be done within 3 months from the date of filing of
the application.
The objections can be made on the following grounds

a. Person making objection is entitled to breeders right

b. Variety not registrable.

c. Against public interest

d. Adverse effect on environment

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 The objections under Sec 21(2) are to be made in the manner prescribed in Form PV-3 and a
copy of objections is to be provided to the applicant.

6. Counter Statement

a. Counter-statement to be sent within 2 months of receipt in the manner prescribed

in Form PV 4.

b. Counter-statements shall be made available to the opposing party.

7. Evidence

a. Evidence can be submitted and recorded under Sec 21(6).

b. Extension for time limit for filing the evidence can be extended by making an
application.

c. The authority is also entitled to provide an opportunity of hearing to the parties if a desire
in that regard is expressed.

8. Certificate

a. Once the application has been accepted, the certificate is to be issued to the applicant.

b. Under Section 24(3) of the act, in the event that the certificate not granted to the
applicant within 12 months from application, on account of default by applicant the
application shall be considered as abandoned provided that notice is accorded.

c. Certificate once issued, shall be valid for 9 years in case of trees and vines and 6 years in
case of other crops.

6. Can the exclusive rights on plant protection be limited in certain circumstances, such as
for public interest or to prevent anti-competitive practices?
Yes, the exclusive rights on plant protection can be limited in certain circumstances to balance the
interests of the rights holders with the public interest. Such limitations are usually imposed by the
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government or the judiciary to promote public welfare, prevent anti-competitive practices, or protect the
environment. The following are some examples of the circumstances where exclusive rights on plant
protection can be limited:
 Research and breeding: The exclusive rights on plant protection do not prevent farmers or
researchers from using the protected variety for research, breeding, or developing new varieties.
However, they may need to obtain the permission of the holder of the protection rights or pay a
royalty.
 Compulsory licensing: In certain circumstances, the government can grant a compulsory license
to use a protected variety without the permission of the rights holder. For example, if the
protected variety is not available in sufficient quantity or at an affordable price, or if it is
required for public health or food security reasons.
 Exhaustion of rights: Once the protected variety is sold, the rights holder's control over the
further use of that variety may be exhausted. In other words, the rights holder cannot control the
use of the variety by the purchaser or any subsequent users.
 Public interest: In cases where the exclusive rights on plant protection may be detrimental to the
public interest, such as environmental protection or public health, the government or the
judiciary can limit those rights. For example, if the use of a protected variety is causing harm to
the environment, the government can limit its use or prohibit its cultivation.
In conclusion, while exclusive rights on plant protection play a significant role in promoting innovation
and investment in the agricultural sector, they can be limited in certain circumstances to balance the
interests of the rights holders with the public interest. These limitations ensure that the protection of
plant varieties does not hinder research, development, and innovation in the agricultural sector and that
small and marginalized farmers have access to affordable and diverse crop varieties.

7. What is a compulsory license in the context of plant protection, and how does it balance
the interests of the plant variety holder and public interest?
Answer: A compulsory license is a legal mechanism that allows a government to grant permission to a
third party to use a patented invention or protected plant variety without the permission of the patent or
plant variety holder. In the context of plant protection, a compulsory license can be granted by the
government to allow the production, sale, and distribution of a protected plant variety to meet certain

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public interest objectives, such as ensuring food security, addressing climate change, or promoting
innovation in the agricultural sector.
The grant of a compulsory license can balance the interests of the plant variety holder and the public
interest by ensuring that protected plant varieties are made available to farmers and consumers at
affordable prices while providing adequate compensation to the holder of the plant variety protection. In
India, the Protection of Plant Varieties and Farmers' Rights Act, 2001 allows for the grant of a
compulsory license in certain circumstances, such as to prevent the abuse of plant variety protection
rights, to address anti-competitive practices, or to meet the needs of public interest.
However, the grant of a compulsory license is subject to several conditions, including that the applicant
must have made reasonable efforts to obtain a voluntary license from the plant variety holder, and that
the licensee must pay adequate compensation to the holder of the plant variety protection. The
compensation must be based on various factors, including the value of the protected plant variety, the
economic value of the use of the variety, and the investment made by the holder of the plant variety
protection.
In conclusion, the grant of a compulsory license in the context of plant protection can balance the
interests of the plant variety holder and public interest by ensuring the availability of protected plant
varieties at affordable prices while providing adequate compensation to the holder of the plant variety
protection. However, the grant of a compulsory license must be subject to several conditions to ensure
that the interests of both parties are adequately protected.

8. Critically analyze the scope of benefit sharing?

Benefit sharing is a mechanism that ensures equitable distribution of benefits derived from the use of
biological resources and associated traditional knowledge. In the context of plant variety protection,
benefit sharing is primarily focused on the utilization of genetic resources for the development of new
plant varieties.
Under the International Treaty on Plant Genetic Resources for Food and Agriculture, benefit sharing is
mandatory for the exchange of plant genetic resources for research, breeding, and training purposes.
The treaty emphasizes the importance of ensuring that the benefits derived from the use of plant genetic
resources are shared fairly and equitably. The treaty also recognizes the rights of farmers to participate
in the sharing of benefits arising from the use of plant genetic resources.

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In the context of plant variety protection, benefit sharing involves the sharing of benefits between the
holder of plant variety protection and the providers of genetic resources used for the development of the
protected variety. The mechanism is aimed at ensuring that the providers of genetic resources receive a
fair share of the benefits derived from the commercialization of the protected variety.
The concept of benefit sharing is also relevant in the context of traditional knowledge associated with
plant genetic resources. Indigenous and local communities have a wealth of traditional knowledge
related to the use and management of plant genetic resources. The use of this traditional knowledge in
the development of new plant varieties can result in significant benefits for the commercial entities that
hold the plant variety protection. Therefore, it is essential to ensure that the holders of traditional
knowledge are recognized and fairly compensated for the use of their knowledge.
Overall, benefit sharing is an important mechanism that ensures equitable distribution of benefits
derived from the use of plant genetic resources and associated traditional knowledge. By ensuring that
all stakeholders receive a fair share of the benefits, the mechanism encourages the sustainable use and
conservation of plant genetic resources and associated traditional knowledge.
9. What is The Convention on Biological Diversity, 1992, and how does it relate to the
protection of traditional knowledge?
Answer: The Convention on Biological Diversity (CBD) is an international treaty adopted in 1992 that
aims to conserve biodiversity, ensure sustainable use of its components, and promote equitable sharing
of benefits arising from genetic resources. The CBD recognizes the close relationship between
biodiversity and traditional knowledge of indigenous and local communities, and calls for the protection
and promotion of such knowledge.
Article 8(j) of the CBD specifically recognizes the importance of traditional knowledge, innovations,
and practices of indigenous and local communities for the conservation and sustainable use of
biodiversity. It requires member countries to respect, preserve, and maintain this knowledge, and
promote its wider application with the approval and involvement of these communities.
The CBD also includes provisions for access to and benefit-sharing of genetic resources, which are
often associated with traditional knowledge. The Nagoya Protocol on Access to Genetic Resources and
the Fair and Equitable Sharing of Benefits Arising from their Utilization, which was adopted in 2010,
establishes an international legal framework for access to and benefit-sharing of genetic resources. It
recognizes the importance of traditional knowledge associated with genetic resources, and requires that

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benefits arising from its utilization be shared in a fair and equitable way with the providers of such
knowledge.
In summary, the CBD provides a framework for the protection and promotion of traditional knowledge
associated with biodiversity and genetic resources, and for ensuring that the benefits arising from its use
are shared equitably with indigenous and local communities.

10. What is the Rio Declaration on Environment and Development (1992) and how does it
relate to the protection of traditional knowledge?
Answer: The Rio Declaration on Environment and Development, adopted during the United Nations
Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil in 1992, is a
seminal international document that articulates a global consensus on sustainable development. The
Declaration consists of 27 principles that outline the fundamental rights and responsibilities of
individuals, states, and organizations to protect and enhance the environment and achieve sustainable
development.
One of the principles of the Rio Declaration relevant to the protection of traditional knowledge is
Principle 22, which states that "Indigenous people and their communities and other local communities
have a vital role in environmental management and development because of their knowledge and
traditional practices. States should recognize and duly support their identity, culture, and interests and
enable their effective participation in the achievement of sustainable development."
The principle recognizes that indigenous and local communities possess traditional knowledge related to
the environment, biodiversity, and natural resources, which have been developed and transmitted across
generations. It also emphasizes the importance of recognizing and respecting the rights of these
communities to control, use, and benefit from their traditional knowledge.
In this context, the Rio Declaration has been influential in shaping international and national policies for
the protection of traditional knowledge and the rights of indigenous and local communities. It has been
instrumental in the development of several international instruments, such as the Convention on
Biological Diversity (CBD), which explicitly recognizes the role of traditional knowledge in the
conservation and sustainable use of biodiversity.
Therefore, the Rio Declaration serves as a framework for recognizing the value of traditional knowledge
in environmental management and development and emphasizes the need for its protection and
preservation as an essential element of sustainable development.
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 11. What is the Equitable Sharing of Benefits (ABS) in relation to Traditional Knowledge
(TK) protection, and how does it promote fair and sustainable use of genetic resources?
The Equitable Sharing of Benefits (ABS) is a mechanism to ensure that the benefits arising from the use
of genetic resources and associated traditional knowledge are shared fairly and equitably between the
countries providing these resources and the users of these resources. It recognizes the rights of
indigenous and local communities to access, use and control their traditional knowledge, and to receive
a share of the benefits from its utilization.
The ABS is an important international legal instrument that provides a framework for access to genetic
resources and the sharing of benefits arising from their use. The instrument promotes fair and
sustainable use of genetic resources by ensuring that those who provide these resources are fairly
compensated for their contributions. It also encourages the conservation and sustainable use of
biodiversity by providing financial incentives to those who protect and manage these resources.
The ABS requires countries to establish legal frameworks to regulate access to genetic resources and
traditional knowledge, and to ensure that access is subject to prior informed consent (PIC) and mutually
agreed terms (MAT). It also requires countries to establish mechanisms for the fair and equitable
sharing of benefits arising from the use of genetic resources and traditional knowledge.
Overall, the ABS is an important international initiative to promote the fair and equitable sharing of
benefits arising from the use of genetic resources and traditional knowledge. It recognizes the rights of
indigenous and local communities, and promotes the conservation and sustainable use of biodiversity.
By ensuring that those who provide these resources are fairly compensated for their contributions, the
ABS provides an important incentive for the conservation and sustainable use of biodiversity, which is
essential for the long-term survival of our planet.
12. What are the Biological Diversity Act, 2002 and the Protection of Plant Varieties and
Farmers’ Rights Act, 2001, and how do they relate to the protection of traditional
knowledge?

The Biological Diversity Act, 2002 (BDA) and the Protection of Plant Varieties and Farmers’ Rights
Act, 2001 (PPVFR) are two important legislative instruments in India that are related to the protection
of traditional knowledge.

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The BDA aims to regulate access to biological resources and associated traditional knowledge, and
ensure that the benefits arising from the use of these resources and knowledge are shared equitably with
the communities that hold them. The BDA establishes the National Biodiversity Authority, which is
responsible for implementing the provisions of the Act, including granting of access to biological
resources and associated traditional knowledge, and ensuring compliance with the requirement of prior
informed consent and benefit-sharing agreements.
The PPVFR, on the other hand, provides for the protection of plant varieties and farmers' rights, and
recognizes the contribution of farmers in the development and conservation of plant genetic resources.
The Act aims to protect the rights of farmers and traditional knowledge holders, and ensure that they
benefit from the commercial use of their knowledge and resources. The PPVFR provides for the
registration and protection of plant varieties, as well as the establishment of a mechanism for the
recognition and protection of farmers' rights.
Both the BDA and the PPVFR recognize the importance of traditional knowledge in the conservation
and sustainable use of biological resources, and provide for the protection of the rights of traditional
knowledge holders. The Acts establish legal mechanisms for the protection of traditional knowledge,
including the requirement for prior informed consent and benefit-sharing agreements. They also
promote the use of traditional knowledge in a manner that respects the rights and interests of indigenous
and local communities.

13. What are the Patent Amendment Acts 2002 and 2005, and how have they impacted the
protection of traditional knowledge in India?
The Patent Amendment Acts 2002 and 2005 are two important legislative instruments in India that have
had a significant impact on the protection of traditional knowledge.
Prior to the passage of the Patent Amendment Act 2002, India did not allow for the patenting of
products that were derived from traditional knowledge or that were already known in the country.
However, the amendment introduced the concept of "novelty" in the patent regime, which allowed for
the patenting of products that were already known in other countries but not in India. This created a
potential threat to the protection of traditional knowledge, as it allowed for the patenting of products
that were derived from traditional knowledge without the prior informed consent of the communities
that held this knowledge.

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In response to concerns about the potential misuse of traditional knowledge, the Patent Amendment Act
2005 introduced several safeguards to protect the rights of traditional knowledge holders. The Act
established a prior art search mechanism to prevent the grant of patents for inventions that were already
known or that were based on traditional knowledge. It also provided for the establishment of a
Traditional Knowledge Digital Library (TKDL), which is a database of traditional knowledge that can
be accessed by patent examiners to prevent the grant of patents for inventions that are based on
traditional knowledge.
Overall, the Patent Amendment Acts 2002 and 2005 have had a mixed impact on the protection of
traditional knowledge in India. While the introduction of the novelty requirement in the patent regime
created a potential threat to the protection of traditional knowledge, the subsequent amendments have
established important safeguards to prevent the misuse of this knowledge. However, there is still a need
for further efforts to ensure that the rights of traditional knowledge holders are fully protected in the
patent system.
14. Critically analyze The scope of GI protection in India.
The Geographical Indications of Goods (Registration and Protection) Act, 1999 is an Indian law that
provides for the registration and protection of geographical indications (GIs) of goods. A GI is a sign or
symbol that identifies a product as originating from a particular geographical region or area, where a
given quality, reputation, or other characteristic of the product is essentially attributable to its
geographical origin.
The main objective of the Act is to promote and protect the interests of producers of goods that are
associated with a particular geographical region or area. The Act provides for the establishment of a
national-level registry for the registration of GIs. The registry is responsible for examining and
approving applications for registration of GIs, and maintaining a public database of registered GIs.
Once a GI is registered, it is protected against unauthorized use or imitation by other producers. The Act
provides for civil and criminal remedies against infringement of GIs, including injunctions, damages,
and imprisonment. The Act also empowers the government to take measures to prevent the
unauthorized use of GIs, including seizure and destruction of infringing goods.
The Act recognizes the rights of producers, organizations of producers, and authorized users to use a
registered GI in relation to the goods for which it is registered. The Act also provides for the
cancellation or removal of a GI from the registry in certain circumstances, such as if the GI has become
generic, or if its registration was obtained fraudulently or in bad faith.
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In conclusion, the Geographical Indications of Goods (Registration and Protection) Act, 1999 is an
important law in India that provides legal protection for geographical indications of goods. The Act
serves to promote the interests of producers and preserve the distinctiveness and authenticity of products
associated with a particular geographical region or area.
15. What is the relationship between biodiversity and sustainable development?
Biodiversity and sustainable development are closely linked, as biodiversity is a critical component of
sustainable development. Biodiversity provides essential ecosystem services that support human well-
being, such as food, clean water, air purification, climate regulation, and disease control. Biodiversity
also provides cultural, spiritual, and recreational values that contribute to human welfare.
Sustainable development, on the other hand, is a development approach that seeks to meet the needs of
the present without compromising the ability of future generations to meet their own needs. Sustainable
development aims to achieve economic growth, social development, and environmental protection in an
integrated and balanced manner.
Biodiversity is essential for sustainable development because it provides the foundation for many
economic and social activities, such as agriculture, forestry, fisheries, and tourism. Biodiversity also
contributes to poverty reduction, as many rural and indigenous communities rely on biodiversity
resources for their livelihoods.
However, unsustainable development practices, such as land-use change, overexploitation of natural
resources, pollution, and climate change, can have negative impacts on biodiversity and the ecosystem
services it provides. These impacts can, in turn, have negative consequences for human well-being, such
as food insecurity, water scarcity, and increased vulnerability to natural disasters.
Therefore, achieving sustainable development requires the conservation and sustainable use of
biodiversity. This can be achieved through a range of strategies, such as protected areas, sustainable use
of natural resources, restoration of degraded ecosystems, and mainstreaming biodiversity into
development policies and practices. By prioritizing the conservation and sustainable use of biodiversity,
we can ensure that we meet our development needs while safeguarding the ecological foundations that
support life on Earth.

16. What are some of the ethical considerations related to the use of genetic resources and
biotechnology?

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The use of genetic resources and biotechnology raises several ethical considerations, particularly in
relation to issues of access and benefit sharing, informed consent, and potential risks to human health
and the environment.
One of the main ethical concerns is the fair and equitable sharing of benefits arising from the use of
genetic resources. Many developing countries and indigenous communities possess valuable genetic
resources, but they may lack the capacity to fully benefit from the commercialization of these resources.
It is therefore important to ensure that the benefits of genetic resource use are shared fairly and
equitably with the communities and countries that provide them.
Another important ethical consideration is informed consent. It is crucial to ensure that individuals and
communities are fully informed about the potential risks and benefits of genetic research and
biotechnology and that they have the right to make informed decisions about the use of their genetic
resources or participation in research.
There are also potential risks associated with the use of genetic resources and biotechnology,
particularly in relation to the release of genetically modified organisms (GMOs) into the environment.
GMOs may have unintended ecological impacts, such as the potential to spread and disrupt natural
ecosystems, and they may also have unintended health impacts, such as the potential to trigger allergic
reactions.
Finally, the use of genetic resources and biotechnology raises broader ethical questions about the
relationship between humans and the natural world. Some argue that the use of genetic resources and
biotechnology represents a form of exploitation of nature and that it is our moral duty to respect and
preserve the natural world. Others argue that genetic resources and biotechnology can be used to
address pressing global challenges, such as food security and climate change, and that it is our moral
duty to use these tools to benefit humanity.

17. What are the Bonn Guidelines and why are they important for the conservation and
sustainable use of biodiversity?
The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits
Arising from their Utilization were adopted in 2002 as a voluntary tool to promote the conservation and
sustainable use of biodiversity and ensure the fair and equitable sharing of benefits from the use of

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genetic resources. The guidelines provide a framework for countries to implement the access and
benefit-sharing (ABS) provisions of the Convention on Biological Diversity (CBD).
The Bonn Guidelines outline the steps that countries should take to ensure that access to genetic
resources is conducted in a transparent and equitable manner, with the prior informed consent of the
provider country or community. The guidelines also provide guidance on the negotiation of mutually
agreed terms for benefit-sharing, such as monetary or non-monetary benefits, which should be shared
with the provider country or community.
The Bonn Guidelines are important for the conservation and sustainable use of biodiversity because
they provide a mechanism for ensuring that the benefits arising from the use of genetic resources are
shared fairly and equitably with the countries and communities that provide them. This helps to create
incentives for the conservation and sustainable use of biodiversity, by ensuring that the benefits from its
use are not solely captured by the users of genetic resources.
The Bonn Guidelines also promote transparency and predictability in the access and benefit-sharing
process, which can help to reduce transaction costs and foster a more collaborative approach to the use
of genetic resources. By promoting a more equitable and collaborative approach to the use of genetic
resources, the Bonn Guidelines can contribute to the conservation and sustainable use of biodiversity, as
well as support poverty reduction and sustainable development.

18. What are some of the ethical considerations related to the patenting of biological
inventions?
The patenting of biological inventions raises several ethical considerations, particularly in relation to
issues of access, ownership, and potential impacts on public health and the environment.
One of the main ethical concerns is the potential for patents to restrict access to essential medicines and
other technologies that are based on biological inventions. Patents can give the holder exclusive rights
to produce and sell a particular product, which can make it difficult for others to access and use the
technology, particularly in developing countries where the cost of patented products may be
prohibitively expensive.
Another important ethical consideration is the ownership of biological inventions. Many biological
inventions are based on genetic resources that have been obtained from developing countries or
indigenous communities, and there are concerns that these communities may not be adequately

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compensated for the use of their resources. There is also a risk that patents may be granted for
inventions that are based on traditional knowledge or cultural practices, which can raise questions about
the ownership and control of these practices.
There are also potential risks associated with the patenting of biological inventions, particularly in
relation to public health and the environment. For example, there are concerns that patents on essential
medicines may lead to high prices that prevent access to life-saving treatments, particularly in
developing countries. There are also concerns that the patenting of genetically modified organisms
(GMOs) may lead to unintended ecological impacts, such as the spread of GMOs into natural
ecosystems.
Finally, the patenting of biological inventions raises broader ethical questions about the relationship
between science, technology, and society. Some argue that the patenting of biological inventions
represents a form of commodification of nature, and that it is our moral duty to respect and preserve the
natural world. Others argue that patents provide a necessary incentive for innovation and that they can
be used to promote the development of technologies that benefit society.
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