Protection of Plant Varieties in India

India enacted the law on Plant Varieties protection in India namely "The Protection of Plant Varieties and Farmers’ Right Act 2001 (PPV&FR Act)". The PPV&FR Act is to provides for establishment of an effective system for Protection of Plant Varieties, and to recognize the rights of farmers and plant breeders and to encourage the development of new varieties of plants.

 

There are a handful law firms in the world specializing in matters related to Registration of Plant Varieties and Plant Patent. Infini Juridique is a pioneer  Law Firm in handling plant varieties registration in India as well as in other regions. Infini Juridique the first Law Firm in India which started the plant variety filing and prosecution. The Firm has challanged the legality of Section 24 (5) of the Protection of Plant Varieties & Farmers' Right Act, which empowers the Registrar of Plant Varieties to pass an order for protection from the date of filing of application and until the plant variety is registered. Infini Juridique can help and guide you in every aspect of plant variety prosecution and registration.

 

Recently Infini Juridique challanged the contention of Monsanto as well as some other seed companies on whether a Parentline used for hybrid development, and even if the parentline is not commercialised, can qualify to be registered as a New Variety. High Court of Delhi rejected the contention of Monsanto and various other seed companies while accepting the arguments raised by Infini Juridique. It was ordered that a parentline, if used for development of hybrids and if such hybrids are commercialised for a period over one year, then it can only qualify as Extant Variety. If the hybrid was developed earlier and commercialised for more than 15 years, then the parentline is not entitled to be registered or granted any protection.

 

PPV&FR Actin India is unique, as it not only provides for protection of breeders' rights but also takes care of the farmers’ rights as well as the Rights of the Communities, Researcher’s Rights, Benefit Sharing and Compulsory Licensing. PPV & FR Act also provides for constitution and establishment of a GENE Fund to be named as the National Gene Fund.

 

WHAT PLANT OR PLANT VARIETY CAN BE REGISTERED UNDER THE ACT IN INDIA

The Act provides for registration of Plant Varieties which have been specified under Section 14, Section 15 of the Act, however the exclusions are contained under Section 14 (4) for New Variety, Section 29 of the Act.

Application for registration under Plant Variety can be filed under Section 14 of the Act by any of the above persons individually or collectively. An application may be filed for varieties which include:

  1. Such genera or species other than Extant Variety or Farmers variety, which the Central Government may notify in the Official Gazette [Section 29(2)]
  2. Extant Variety; or
  3. Farmers Variety

 

Section 15 provides for registration of New Variety, which shall be registered under the Act if it conforms to the criteria of Novelty, Distinctiveness, Uniformity, and Stability Test (NDUS Test).

 

WHO CAN MAKE AN APPLICATION

An application for registration of plant variety including new variety and Extant Variety or Farmer’s Variety under Section 14 can be filed by:

  1. any person claiming to be the breeder of the variety; or
  2. any successor of the breeder of the variety; or
  3. any person being the assignee of the breeder of the variety in respect of the rights to make such application; or
  4. any farmers or group of farmers or community of farmers claiming to be the breeder of the variety; or
  5. any person authorized in the prescribed manner by a person specified under clauses (a) to (vi) to make application on his behalf; or
  6. any university or publicly funded agricultural institution claiming to be the breeder of the variety.

 

An application may be made by any of the persons referred above individually or jointly with any other person.

 

Application for Registration of a Plant Variety under Section 14 must be filed in accordance with the provisions of the Act and must assign a single and distinct denomination to a plant variety with respect to which the person is seeking registration of the Plant Variety under the Act. Denomination given to a plant variety must be capable of distinguishing or should be capable of identifying the variety from other plant varieties. It should not consist solely of figures or must not mislead or cause confusion concerning the characteristic, value identity of such variety of the identity of such breeder. The denomination must be different from a plant variety of the same botanical species or of a closely related species of plant variety registered under this Act. The denomination given to a variety must not be such as it may lead to deceiving the public or cause confusion in the public regarding the identity of such plant variety. The denomination given to a variety must be such as not to hurt the religious sentiments of any class or section of the citizens of India or is prohibited for use as a name or emblem and names or is comprised solely or partly of geographical names.

 

PLANT VARIETIES THAT CANNOT BE REGISTERED

Section 15 (4) of the Act deals with New Plant Varieties which cannot be registered under the Act. This provision is more like Section 3 of the Patent Act which is in the nature of prohibitory provision. Thus any application for New Variety has to withstand the tests laid down under section 15 (4) of the Act in order to be registered, subject to other provisions of the Act and the mandatory test under Section 19 of the Act.

A New Variety shall not be registered if the denomination given to the variety is not capable of indentifying such variety; or

A New Variety shall not be registered under the provisions of the Act if the denomination given to such variety is not capable of identifying such variety or consists of solely of figures or is liable to mislead or to cause confusion concerning the characteristic, value identity of such variety or the identity of breeder of such variety;

A New Variety shall also not be registered if it is not different from every denomination which designates a variety of the same botanical species or of a closely related species registered under the Act; or

A New Variety shall also not be registered under the Act if it is likely to deceive the public or cause confusion in the public regarding the identity of such variety; or

A New Variety is also not entitled to be registered if it is likely to hurt the religious sentiments of any class or section of the citizens of India or is prohibited for use as a name or emblem and names or is comprised solely or partly of geographical names; or

A New Variety or Extant Variety shall also not be registered if it contains any gene or gene sequence involving any harmful technology including terminator technology which is injurious to the life or health of human beings, animals or plants

 

The Registrar may register a New Plant Variety under the Act, if the denomination given to such plant variety comprises solely or partly of geographical name, if he considers that the usage of such denomination is an honest use under the circumstances of the Case. The Act mandates that every new plant variety subject to the criteria of Novelty, Distinctiveness, uniformity an stability shall be registered under the Act.