A plant variety is a more precisely defined collection of plants having a common set of features that are selected from within a species. Plant Breeders’ Rights was evolved out of a need to provide incentives to plant breeders involved in creative research that sustains agricultural progress through returns on research investments, as well as urge the researcher to share the benefits of his creativity with society.
In the aftermath of the WTO’s TRIPS agreement, which strives to encourage effective protection of Intellectual Property Rights in all domains of technology, the topic of establishing a law relating to Plant Varieties Protection and Farmers’ Rights in India has gained prominence.
Article 5 & 27 of the TRIPS Agreement defines patentable subject matter and requires member countries to provide for plant variety protection; whether through patenting; an effective sui generis system, or a combination of the both aiding in protection of plant variety.
The Protection of Plant Varieties and Farmers’ Rights Act of 2001 was enacted to provide for the protection of plant varieties and farmers’ rights. Farmers’ rights must be protected in order to build an effective system for plant variety protection as well as to foster the production of novel plant types. UPOV is the institution in charge of overseeing the protection of novel plant types.
Object of the Act:
to create an effective framework for protecting plant varieties, farmers’ and plant breeders’ rights, and encouraging the production of new plant varieties
to recognize and defend farmers’ rights in respect of their contributions to the conservation, improvement, and availability of plant genetic resources for the production of new plant varieties at any time
to preserve plant breeders’ rights and encouraging public and private sector investment in research and development for the production of novel plant types
to encourage the development of the seed industry in the country, ensuring that
farmers have access to high-quality seeds and planting materials
These goals are more difficult to attain in the absence of plant breeders’ rights, because there is nothing prohibiting others from multiplying the breeder’s seeds or other propagating material and selling the variety on a commercial basis without compensating the breeder.
For a plant variety to be protected, it shall have the following characteristics as mentioned in Articles 5-9 of UPOV Convention Act, 1991. The criteria for registering the plant variety are:
Novelty-previously shouldn’t be exploited commercially. A new variety is considered novel if the propagating and harvested material of such variety has not been sold or otherwise disposed of for the purposes of exploitation of such variety by or with the consent of its breeder or his successor for a certain period of time before the date of filing of the application. In India, this time period is less than one year for the sale or disposal of a new variety. Outside of India, the time span for trees and vines is longer than six years. In any case, it is older than four years in India.
Uniform-same or similar based on the nature of propagation method. A new variety is considered uniform if, notwithstanding the variation that may be expected due to the unique properties of its dissemination, its core qualities are sufficiently consistent.
Distinct-explicitly and clearly distinguished from the existing varieties. A novel variation is considered distinct if it is clearly distinguished from any other variety whose existence is common knowledge in any nation at the time the application is filed by at least one important attribute.
Satisfactory denomination in terms of generic designation
Stability-characteristics shall remain unchanged even after repeated propagations and after each cycle. A new variety is considered stable if its key properties do not alter following repeated propagation or, in the case of a specific propagation cycle, at the end of each cycle.
Rights available with the holders of plant variety breeders:
Article 14 of the UPOV, 1991 lays down the requisite protection and authorization details of the holder rights:
Marketing
Offering for sale
Export/Imports
Stocking purposes
Conditioning for propagation
Producing/reproducing/multiplying
Whereas Article 15 of UPOV Act, 1991 lays down the exception where the states are permitted to exclude the farm saved seeds from the breeder’s rights, for adopting solutions and ‘farmers privilege’.
Life of protection of plant variety: Article 19 states:
Trees & Vines-25 years
Other plants-20 years
DISCLAIMER-
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.
AUTHOR:
RANGISETTI NAGA SUMALIKA
3rd Year, BA LLB
Symbiosis Law School, Pune