Protection of Plant Varieties – Objectives, Criteria, Process

The protection of plant varieties is crucial for preserving national resources and advancing agricultural development. Farmers play a vital role in maintaining and enhancing plant genetic resources, contributing to the creation of new plant varieties. Simultaneously, plant breeders are instrumental in developing these varieties through their research efforts. Therefore, it is essential to safeguard the rights of both farmers and breeders, encouraging further investment in plant research and development.

This protection ensures the availability of high-quality seeds and plant materials to growers, which strengthens agriculture. Additionally, India’s commitment to international agreements, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO), obliges the nation to establish a system for protecting plant varieties and the associated rights of farmers and breeders.

Globally, the International Union for Protection of New Varieties of Plants (UPOV) was created through an international convention in 1961. It aims to protect plant varieties and their developers, with revisions made in 1972, 1978, and 1991 to accommodate evolving agricultural needs. UPOV’s headquarters are located in Geneva, and by 2003, 54 countries had joined. Notably, India is not a member of UPOV.

In 2001, India passed The Protection of Plant Varieties and Farmers’ Rights Act (PPVFRA), which is distinct in its approach to farmers’ rights and plant variety protection. This act, described as “sui generis,” signifies it is unique and separate from the typical patent system. It recognizes the contributions of India’s farming community alongside private breeders who invest heavily in research and development (R&D).

The PPVFRA also plans to establish the Protection of Plant Varieties and Farmers’ Rights Authority, which will oversee a National Register of Plant Varieties. Once fully implemented, this act is expected to revolutionize intellectual property rights related to plant varieties in India, promoting innovation and growth in the agricultural sector.

What is a plant variety?

• A plant variety is a defined grouping of plants within a specific botanical classification. These groups are formed based on the expression of distinct characteristics that result from a specific genotype. The term “variety” does not apply to microorganisms and represents the lowest taxonomic rank within the botanical hierarchy.
• To be recognized as a plant variety, the grouping must meet several criteria. First, it must exhibit specific characteristics that differentiate it from other plant groupings. These characteristics are determined by the plant’s genotype and are stable across generations. Additionally, the variety must be capable of consistent propagation, meaning it can be reproduced without changes to its defining traits.
• There are several types of plant varieties recognized, including farmers’ varieties, extant varieties, transgenic varieties, and essentially derived varieties. Farmers’ varieties refer to plants that have been traditionally cultivated or have evolved in the fields, often through the efforts of farmers. These may also include wild relatives or landraces that are commonly known to farmers.
• An extant variety is one that is currently available in India, and it may be recognized through notification by the Central Government under the Seeds Act of 1966. It also includes farmers’ varieties, those with common knowledge, or any other variety in the public domain.
• An essentially derived variety is one that originates from an initial variety, either directly or indirectly. It retains the core characteristics of the initial variety but is distinguishable due to certain differences. These varieties maintain the essential traits of their original genotype while exhibiting minor variations caused by the process of derivation.
• Through these classifications, plant varieties are identified, protected, and utilized in agricultural practices, ensuring the maintenance of genetic diversity and innovation in plant breeding.

Plant Varieties Protection-Objectives

The objectives of plant variety protection are critical for promoting innovation and safeguarding agricultural biodiversity. These objectives are designed to balance the interests of farmers, breeders, and the broader agricultural industry. The key objectives include:

1. Encouragement of Innovation: By providing legal protection to plant breeders, it incentivizes the development of new and improved plant varieties. This leads to the introduction of high-yielding, disease-resistant, and climate-adaptable crops.
2. Recognition of Farmers’ Contributions: Plant variety protection acknowledges the traditional knowledge and efforts of farmers in conserving and improving plant genetic resources, ensuring they benefit from their contributions.
3. Stimulating Investment in Research and Development: Protection encourages private and public sector investment in agricultural research, leading to the development of superior plant varieties, which benefit growers and consumers.
4. Ensuring Access to Quality Seeds: Legal protection ensures that high-quality seeds and plant materials are available to farmers, thereby enhancing agricultural productivity and food security.
5. Compliance with International Agreements: Plant variety protection helps countries comply with international intellectual property agreements such as TRIPS, fostering international cooperation in agriculture and trade.
6. Preserving Biodiversity: By safeguarding a wide variety of plant species, the system helps in the conservation of genetic diversity, which is vital for sustainable agriculture.

Criteria for Protection

The protection of a new plant variety through registration is based on four essential criteria: novelty, distinctiveness, uniformity, and stability. These criteria ensure that only truly innovative and consistent plant varieties receive legal protection, promoting agricultural development and the advancement of plant breeding.

1. Novelty:
   • A plant variety is considered novel if, at the time of filing for protection, the propagating or harvested material of that variety has not been sold or disposed of by the breeder for commercial purposes.
   • In India, this time limit is one year before the filing date, whereas for trees or vines outside India, it is six years, and for other varieties, it is four years.
   • Importantly, trials or the sharing of material for testing purposes do not impact the novelty status, provided the material has not been commercially exploited.
2. Distinctiveness:
   • A new variety must be clearly distinguishable from any commonly known variety by at least one essential characteristic.
   • This distinctness is comparable to the concept of “novelty” in patent law, where the new variety must be separated from existing plant varieties based on specific traits.
   • Unlike patents, however, plant variety protection does not require an “inventive step” beyond distinctiveness.
3. Uniformity:
   • The variety must display a high degree of uniformity in its essential characteristics, allowing for some natural variation due to propagation methods.
   • Uniformity refers to the consistent appearance of the variety’s key traits across multiple plants, ensuring that it behaves predictably under normal conditions.
4. Stability:
   • Stability means that the essential characteristics of the variety remain unchanged after repeated propagation cycles.
   • This criterion ensures that the variety continues to exhibit the same traits over time, providing reliability to growers who use the protected plant variety.

Non-registrable Varieties

Certain plant varieties are not eligible for registration if they fail to meet specific criteria related to their denomination. These restrictions ensure clarity, avoid confusion, and protect cultural sensitivities. The following points detail the types of non-registrable varieties:

1. Lack of Identifying Capacity:
   • A variety cannot be registered if its denomination is not capable of clearly identifying the plant variety.
2. Denominations Consisting Solely of Figures:
   • Names that consist only of numbers or figures are not permissible, as they do not provide a meaningful identifier.
3. Potential for Misleading or Confusing:
   • Varieties with denominations that could mislead or confuse people about the variety’s characteristics, value, or breeder identity are disqualified from registration.
4. Similarity to Existing Denominations:
   • If a denomination is not distinct from those already registered for the same or closely related species, the variety cannot be registered. This prevents overlap and confusion in naming.
5. Religious Sentiment:
   • A variety name that could hurt the religious sentiments of any group in India is prohibited from registration, ensuring cultural respect.
6. Emblems and Names Act:
   • Names that are prohibited under the Emblems and Names (Protection of Improper Use) Act, 1950, cannot be used as variety denominations. This act protects national symbols and names from improper commercial use.
7. Use of Geographical Names:
   • Varieties cannot be registered if their denomination consists solely or partially of a geographical name. However, exceptions may be made if the Registrar is convinced that the name is being used honestly and in good faith under the specific circumstances.

Procedure for Registration

The procedure for registering a plant variety involves several steps to ensure compliance with legal and scientific standards. This process ensures that only qualifying varieties receive protection, fostering innovation while maintaining agricultural integrity.

1. Eligibility to Apply:
   • Applications can be submitted by:
     • The breeder or their successor or assignee.
     • A farmer or a group of farmers who claim to be the breeders.
     • An authorized representative of the above-mentioned parties.
     • A university or a publicly funded agricultural institution claiming to be the breeder.
2. Form of Application:
   • The application must be completed in a prescribed format.
   • It should include:
     • The denomination assigned to the variety.
     • An affidavit confirming that the variety does not contain terminator technology.
     • Passport data of the parental lines used to develop the variety.
     • The geographical location in India where the genetic material was sourced.
     • A brief description detailing the variety’s novelty, distinctiveness, uniformity, and stability.
     • A declaration that the genetic or parental material was lawfully acquired.
   • The application must be accompanied by the prescribed fees and a sufficient quantity of seeds or propagating material for testing.
3. Acceptance and Advertisement:
   • The Registrar will review the application to ensure it meets all requirements.
   • If the application is acceptable, it will be advertised, including any limitations and specifications, to invite objections.
   • The Registrar must give the applicant an opportunity to amend the application if it does not meet the requirements before rejection.
4. Opposition to Registration:
   • Within three months of the advertisement, any interested person may file an opposition by paying the prescribed fees.
   • Grounds for opposition may include:
     • The opponent claims breeder’s rights over the applicant.
     • The variety does not meet registration criteria.
     • Registration may not serve public interest or could negatively impact the environment.
   • The Registrar will evaluate the opposition and issue a reasoned decision.
5. Registration and Term of Protection:
   • If the application is accepted with or without opposition, the variety will be registered, and a certificate will be issued.
   • The breeder must deposit seeds or propagating material with the National Gene Bank.
   • The certificate’s validity is:
     • Nine years for trees and vines.
     • Six years for other crops.
   • Validity can be renewed up to a maximum of:
     • Eighteen years for trees and vines.
     • Fifteen years for extant varieties or other cases.
6. Registration of Essentially Derived Varieties:
   • The procedure is similar to that of other varieties but includes additional verification to confirm derivation from an initial variety.
   • The Registrar forwards the application to the Authority for examination.
   • If the Authority confirms the variety as essentially derived and meets the required criteria, it will direct the Registrar to register the variety.
   • Upon successful registration, a certificate will be issued and sent to the Authority.

Effect of registration

The registration of a plant variety has significant implications for various stakeholders, including breeders, researchers, and communities. It establishes a legal framework for the rights and responsibilities associated with the variety, as outlined below:

1. Breeder’s Rights:
   • Exclusive Rights: The breeder or their successor, agent, or licensee receives exclusive rights upon registration. These rights include the ability to sell, market, distribute, import, or export the variety, subject to the Act’s provisions.
   • Authorization: The breeder can authorize others to produce, sell, or otherwise manage the registered variety. Such authorized individuals must apply to the Registrar for registration as an agent or licensee. Once registered, these agents or licensees do not have the authority to transfer their rights further.
   • Extant Varieties: For extant varieties, if the breeder or their successor cannot establish their right, ownership may revert to the Central or State Government.
2. Researcher’s Rights:
   • Use for Research: Researchers are permitted to use registered varieties for experimentation and as a source for developing new varieties. However, if a registered variety is used repeatedly as a parental line in commercial production, the breeder’s authorization is required.
3. Rights of Communities:
   • Contribution Claims: If a local community has contributed to the development of a variety, individuals or organizations representing the community can file claims for compensation. The Authority will assess these claims and, if valid, award compensation, which the breeder must deposit into the National Gene Fund.
4. Benefit Sharing:
   • Definition and Determination: Benefit sharing involves distributing a portion of the benefits accrued from a registered variety to those who contributed genetic material. The Authority determines the share based on the extent of the genetic material’s use and its commercial value.
   • Deposit Requirements: Breeders must deposit the determined benefit share into the National Gene Fund. This process ensures that contributors receive fair compensation for their input in developing new varieties.

The surrender and revocation of a plant variety registration

The surrender and revocation of a plant variety registration involve specific procedures and grounds, as detailed below:

1. Surrender of Registration:
   • Initiation: A breeder may voluntarily offer to surrender the registration certificate to the Registrar. This offer must be made following the prescribed procedure.
   • Notification: The Registrar is responsible for notifying all registered agents and licensees about the surrender offer.
   • Opposition and Hearing: If any registered agent or licensee opposes the surrender, they must notify the Registrar. The Registrar will then inform the breeder and the opponents of the opposition. After reviewing the case and hearing both parties, the Registrar may proceed with revoking the certificate if deemed appropriate.
2. Revocation of Registration:
   • Eligibility Issues: The registration may be revoked if it was granted to an individual or entity not eligible for such protection.
   • Incorrect Information: If the grant was based on incorrect or misleading information provided by the applicant, the registration can be revoked.
   • Non-compliance: The breeder’s failure to provide required information or alternative denomination for the variety, when needed, may lead to revocation.
   • Failure to Supply Material: If the breeder fails to supply necessary seeds or propagating material to the holder of a compulsory license, revocation may occur.
   • Public Interest: The registration may also be revoked if it is determined that maintaining the grant is not in the public interest.

These procedures ensure that the registration process remains transparent and fair, addressing any issues that may arise regarding eligibility, compliance, and public interest.

Farmers’ Rights

Under the Act, the term “farmer” is defined with specific parameters. A farmer encompasses individuals who:

• Cultivate Crops: This includes those who engage in crop cultivation directly or oversee cultivation activities through others.
• Conserve and Preserve: Farmers who maintain and safeguard wild species or traditional varieties, or enhance these through selection and identification of beneficial traits.

Rights of Farmers

• Registration and Protection:
  • Farmers who develop new plant varieties are eligible for registration and protection similar to that afforded to breeders.
  • Farmers’ varieties can also be registered under the Act.
• Recognition and Rewards:
  • Farmers involved in the conservation of genetic resources, such as land races and wild relatives of economic plants, are eligible for recognition and rewards.
  • Rewards are provided through the National Gene Fund, which is established by the Central Government.
• National Gene Fund:
  • The National Gene Fund is comprised of contributions from various sources, including:
    • Benefit sharing from breeders.
    • Annual fees from breeders.
    • Compensation payments under the Rights of Communities.
    • Other contributions.
• Farm Produce Usage:
  • Farmers are permitted to save, use, sow, resow, exchange, share, or sell their farm produce, including seeds from protected varieties.
  • However, farmers are prohibited from selling branded seeds of a protected variety.

Infringement

Infringement of breeder’s rights occurs when unauthorized individuals engage in activities that violate the protections granted to registered plant varieties under the Act. The following outlines the key aspects of infringement:

1. Definition of Infringement:
   • Unauthorized Use: Infringement occurs if a person who is neither the breeder, registered agent, nor licensee of a registered variety sells, exports, imports, or produces the variety without the breeder’s or licensee’s permission.
   • Deceptive Denominations: Infringement also includes the use, sale, export, import, or production of another variety using a denomination that is identical or confusingly similar to that of a registered variety, which may mislead the public.
2. Legal Procedures:
   • Jurisdiction: Legal action for infringement must be filed in a District Court that has jurisdiction to hear such cases.
   • Relief: Courts are authorized to grant relief to the aggrieved party, which can include:
     • Injunction: A court order preventing further infringement activities.
     • Damages or Profits: The plaintiff may choose to seek damages or a share of the profits obtained from the infringement.
3. Purpose of Relief:
   • Injunction: Aims to stop ongoing or prevent future infringement.
   • Damages/Profits: Provides compensation for losses incurred or ensures that the infringer does not benefit financially from the infringement.

Offences and Penalties

Under the Act, specific offences related to the misuse of registered plant varieties are clearly defined, and corresponding penalties are imposed to ensure compliance and protect breeders’ rights. The following outlines the various offences and their associated penalties:

1. Applying False Denominations:
   • Offence: It is an offence for anyone other than the breeder to use a false denomination for a variety or to falsely represent the origin, country, or breeder’s details of a registered variety.
   • Penalty:
     • Imprisonment: Ranges from a minimum of three months to a maximum of two years.
     • Fine: Between Rs. 50,000 and Rs. 5 lakhs, or both imprisonment and fine.
2. Selling Varieties with False Denominations:
   • Offence: Selling varieties that have been falsely denominated.
   • Penalty:
     • Imprisonment: Ranges from six months to two years.
     • Fine: Between Rs. 50,000 and Rs. 5 lakhs, or both imprisonment and fine.
3. Falsely Representing a Variety as Registered:
   • Offence: Misrepresenting a variety as registered when it is not.
   • Penalty:
     • Imprisonment: Ranges from six months to three years.
     • Fine: Between Rs. 1 lakh and Rs. 5 lakhs, or both imprisonment and fine.
4. Penalties for Subsequent Offences:
   • Offence: Committing a second or subsequent offence under the Act after a prior conviction.
   • Penalty:
     • Imprisonment: Ranges from one to three years.
     • Fine: Between Rs. 2 lakhs and Rs. 20 lakhs, or both imprisonment and fine.
5. General Provisions:
   • Override Effect: The Act takes precedence over other laws in force that may conflict with its provisions, ensuring that its regulations are upheld.

Protection of Plant Varieties and Farmers’ Rights Act, 2001

The Protection of Plant Varieties and Farmers’ Rights Act, 2001, is a legislative framework established in India to protect plant varieties and the rights of farmers. This Act aims to safeguard the interests of plant breeders and farmers, promote agricultural innovation, and encourage the conservation of plant genetic resources.

Key Provisions of the Act

1. Objective and Scope:
   • The Act provides for the protection of new plant varieties, including genetically modified varieties, and ensures that farmers’ rights are recognized and protected.
   • It aims to encourage the development of new plant varieties by providing breeders with exclusive rights while simultaneously safeguarding traditional knowledge and genetic resources.
2. Plant Varieties Protection:
   • Registration: Plant varieties must be registered with the Registrar to receive protection. The registration process includes detailed examination of the variety’s distinctiveness, uniformity, and stability.
   • Breeder’s Rights: The breeder or their successor has exclusive rights to sell, market, distribute, import, or export the registered variety.
3. Farmers’ Rights:
   • Definition of Farmer: A farmer is defined as a person who cultivates crops, conserves traditional varieties, or adds value through selection and preservation.
   • Recognition and Compensation: Farmers who develop new varieties or conserve genetic resources are entitled to registration and protection. The National Gene Fund is used to provide compensation to farmers for their contributions.
4. Researcher’s Rights:
   • Researchers are allowed to use registered varieties for experimental purposes or to create new varieties. However, repeated commercial use of such varieties requires the breeder’s authorization.
5. Offences and Penalties:
   • The Act outlines penalties for various offences, including the use of false denominations and misrepresentation of varieties. Penalties range from fines to imprisonment, with increased severity for repeat offenders.
6. Surrender and Revocation of Registration:
   • Breeders can offer to surrender their registration, which is subject to approval by the Registrar. The Act also provides grounds for revoking registration, including false information or non-compliance with requirements.
7. Dispute Resolution:
   • Disputes related to the infringement of rights or other issues under the Act are to be resolved in the District Courts with jurisdiction to hear such cases.

Significance

• Encouragement of Innovation: By providing protection to plant breeders, the Act incentivizes the development of new and improved plant varieties.
• Support for Farmers: The Act acknowledges the contributions of farmers and provides mechanisms for recognition and compensation.
• Conservation of Biodiversity: It supports the conservation of traditional and indigenous plant varieties, promoting agricultural biodiversity.

Protection of Plant Varieties Advantages

The primary advantages are:

1. Encourages Innovation and Research:
   • Incentivization for Breeders: By granting exclusive rights to plant breeders for their new varieties, the protection ensures that breeders have a financial incentive to invest time and resources into developing innovative and high-yielding plant varieties.
   • Advancement in Agricultural Technology: The protection of new plant varieties promotes research and development in plant breeding, leading to technological advancements and improved crop varieties.
2. Enhances Agricultural Productivity:
   • Improved Crop Varieties: Protected plant varieties often come with improved traits such as higher yields, disease resistance, and better quality. This contributes to increased agricultural productivity and food security.
   • Enhanced Resilience: The development of plant varieties with better adaptability to environmental stresses (e.g., drought, pests) helps farmers cope with changing climatic conditions and reduces crop failures.
3. Safeguards Intellectual Property:
   • Legal Protection: The Act provides legal protection for plant breeders’ intellectual property, ensuring that their innovations are not exploited without permission. This protection supports fair returns on investments and encourages further innovation.
   • Prevention of Unauthorized Use: It helps prevent unauthorized use or reproduction of patented plant varieties, maintaining the integrity of the breeder’s rights.
4. Supports Farmers’ Rights and Welfare:
   • Recognition and Compensation: Farmers who contribute to the development or conservation of plant varieties are recognized and compensated through mechanisms like the National Gene Fund. This ensures that their efforts and traditional knowledge are valued and rewarded.
   • Access to Improved Varieties: Farmers benefit from access to high-quality and high-yielding plant varieties, which can lead to better harvests and improved livelihoods.
5. Promotes Conservation of Genetic Resources:
   • Conservation Incentives: The protection framework encourages the conservation of traditional and indigenous plant varieties, which are crucial for maintaining agricultural biodiversity and safeguarding genetic resources.
   • Sustainable Agriculture: By integrating conservation efforts into the protection scheme, the Act promotes sustainable agricultural practices and the preservation of diverse plant genetic resources.
6. Facilitates Trade and Market Access:
   • Global Competitiveness: Protected plant varieties can be marketed and traded internationally, enhancing global competitiveness for local breeders and farmers.
   • Quality Assurance: The registration and protection of plant varieties ensure that the varieties meet specific standards, which can enhance the reputation of products in the global market.
7. Encourages Collaboration and Knowledge Sharing:
   • Partnership Opportunities: The protection of plant varieties fosters collaboration between breeders, researchers, and farmers, facilitating the exchange of knowledge and technology.
   • Joint Ventures: It opens opportunities for joint ventures and partnerships in research and development, benefiting all stakeholders involved.

Protection of Plant Varieties Limitations

While the protection of plant varieties offers many benefits, it also presents several limitations and challenges that can impact various stakeholders. These limitations include:

• High Costs for Breeders and Farmers:
  • Registration Costs: The process of registering a plant variety can be costly. Fees associated with the application, testing, and maintenance of registration may be prohibitive, especially for small-scale breeders and farmers.
  • Legal Fees: Enforcement of plant variety rights may involve substantial legal costs, which can be a barrier for individuals or organizations with limited resources.
• Complex and Lengthy Application Process:
  • Bureaucratic Procedures: The process of applying for protection, including documentation, testing, and review, can be complex and time-consuming. This complexity may discourage some breeders from seeking protection for their varieties.
  • Delayed Approvals: The time required for processing applications and obtaining certificates can delay the commercialization of new varieties.
• Limited Access for Smallholders:
  • Exclusion of Small Breeders: Smallholders and local breeders may find it challenging to navigate the regulatory framework, potentially limiting their ability to protect their varieties and benefit from legal rights.
  • Market Access Barriers: Small-scale farmers may face difficulties accessing protected varieties due to high costs or lack of availability, impacting their ability to benefit from improved crop varieties.
• Potential for Increased Monopoly Power:
  • Concentration of Rights: The protection of plant varieties can lead to concentration of intellectual property rights in the hands of a few large corporations, potentially stifling competition and reducing diversity in the market.
  • High Prices: The monopoly power granted to breeders can result in higher prices for seeds and other planting material, making them less affordable for farmers.
• Impact on Traditional Knowledge and Practices:
  • Restrictions on Traditional Varieties: The protection of new varieties can sometimes overshadow traditional and indigenous varieties, potentially leading to a loss of traditional knowledge and practices.
  • Intellectual Property Conflicts: The appropriation of traditional knowledge without proper recognition or compensation can lead to conflicts between breeders and local communities.
• Challenges in Enforcement and Monitoring:
  • Enforcement Difficulties: Ensuring compliance with plant variety protection laws can be challenging, particularly in regions with limited resources for monitoring and enforcement.
  • Infringement Issues: Identifying and addressing instances of infringement may require significant effort and resources, complicating the enforcement of rights.
• Limited Scope of Protection:
  • Exclusions: Certain plant varieties, such as those derived from traditional breeding methods or those considered to be common knowledge, may not be eligible for protection under current laws.
  • Geographical Limitations: Plant variety protection is often confined to specific jurisdictions. This limitation can hinder the ability to market and protect varieties across different countries.
• Potential Environmental Impact:
  • Genetic Uniformity: The focus on a limited number of commercially viable varieties may lead to reduced genetic diversity, potentially increasing vulnerability to pests, diseases, and environmental changes.
  • Ecological Risks: The introduction of new varieties may have unintended ecological consequences, such as the displacement of native species or disruption of local ecosystems.