India, having ratified the Agreement on Trade Related Aspects of Intellectual Property Rights made provision for giving effect to sub-paragraph (b) of paragraph 3 of article 27 in Part II of the said Agreement relating to protection of plant varieties through the legislation of this Act.
The Preamble of the Act declares that the Act is to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants. It also aims for accelerated agricultural development in the country, to protect plant breeders’ rights to stimulate investment for research and development, both in the public and private sector, for the development of new plant varieties.
“variety” means a plant grouping except micro organism 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 of that plant grouping;
- distinguished from any other plant grouping by expression of at least one of the said characteristics; and
- considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation. and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety.
“essentially derived variety“, in respect of a variety (the initial variety) shall be said to be essentially derived from such initial variety when it-
- is predominantly derived from such initial variety, or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of geno ypes of such initial variety;
- is clearly distinguishable from such initial variety; and
- conforms (except for the differences which result from the act of derivation) to such initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety;
“extant variety” means a variety available in India which is-
- notified under section 5 of the Seeds Act, 1966 (54 of 1966); or
- farmers’ variety; or
- a variety about which there is common knowledge; or
- any other variety which is in public domain;
“essential characteristics” means such heritable traits of a plant variety which are determined by the expression of one or more genes of other heritable determinants that contribute to the principal features, performance or value of the plant variety ;
“breeder” means a person or group of persons or a farmer or group of farmers or any institution which has bred, evolved or developed any variety;
“farmer” means any person who-
- cultivates crops by cultivating the land himself; or
- cultivates crops by directly supervising the cultivation of land through any other person; or
- conserves and preserves, severally or jointly, with any person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties;
“farmers’ variety” means a variety which-
- has been traditionally cultivated and evolved by the farmers in their fields; or
- is a wild relative or land race of a variety about which the farmers possess the common knowledge;
“denomination” in relation to a variety or its propagating material or essentially derived variety or its propagating material means the denomination of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, expressed by means of letters or a combination of letters and figures written in any language;
“seed” means a type of living embryo or propagule capable of regeneration and giving rise to a plant which is true to such type;
Protection of Plant Varieties and Farmer’s Rights Authority
The Central Government shall, by notification in the Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority for the purposes of this Act which shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of properties, both movable and immovable, and to contract, and shall by the said name sue and be sue.
The Central Government shall establish, for the purposes of this Act, a Registry which shall be known as the Plant Varieties Registry.
A Register called the National Register of Plant Varieties shall be kept at the head office of the Registry, wherein shall be entered the names of all the registered plant varieties with the names and addresses of their respective breeders, the right of such breeders in respect of the registered varieties, the particulars of the denomination of each registered variety, its seed or other propagating material along with specification of salient features thereof and such other matters as may be prescribed.
Registrable varieties. –
- A new variety shall be registered if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.
- An extant variety shall be registered under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations.
- A new variety shall be deemed to be-
Novel , if, at the date of filing of the application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety- (i) in India, earlier than one year; or (ii) outside India, in the case of trees or vines earlier than six years, or in any other case, earlier than four years, before the date of filing such application: Provided that a trial of a new variety which has not been sold or otherwise disposed of shall not affect the right to protection or the fact that on the date of filing the application for registration, the propagating or harvested material of such variety has become a matter of common knowledge other than through the aforesaid manner shall not affect the criteria of novelty;
Distinct, if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application.
Uniform, if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics;
Stable, if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
But a new variety can not be registered if the denomination given to such variety-
- not capable of identifying such variety; or
- consists solely of figures; or
- liable to mislead or to cause confusion concerning the characteristics, value identity of such variety, or the identity of breeder of such variety; or
- not different from every denomination which designates a variety of the same botanical species or of a closely related species registered under this Act; or
- likely to deceive the public or cause confusion in the public regarding the identity of such variety; or
- likely to hurt the religious sentiments respectively of any class or section of the citizens of India; or
- prohibited for use as a name or emblem for any of the purposes mentioned in section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950; or
- is comprised of solely or partly of geographical name: but the Registrar may register if he considers that the use of such denomination in respect of such variety is an honest use.
Persons who may make application.-
An application for registration can be made by-
- breeder of the variety; or
- any successor of the breeder of the variety; or
- any person being the assignee of the breeder of the variety in respect of the right to make such application; or
- any farmer or group of farmers or community of farmers claiming to be the breeder of the variety; or
- any person authorised in the prescribed manner by a person specified under clauses (a) to (d) to make application on his behalf; or
- any university or publicly funded agricultural institution claiming to be the breeder of the variety.
Compulsory variety denomination – Each application shall assign a single and distinct denomination to a variety with respect to which he is seeking registration. A denomination assigned to a variety shall not be registered as a trade mark under that Act.
After an application for registration of a variety has been accepted absolutely or subject to conditions or limitations, the Registrar, as soon as after its acceptance, cause such application together with the conditions or limitations and the specifications of the variety for registration of which such application is made including its photographs or drawings, to be advertised and calling objections from the persons interested in the matter.
Within three months from the date of such advertisement, any person may give notice in writing to the Registrar of his opposition to the registration on any of the following grounds, namely –
- the person opposing the application is entitled to the breeder’s right as against the applicant; or
- the variety is not registrable under the Act; or
- that the grant of certificate of registration may not be in public interest; or
- that the variety may have adverse effect on the environment.
Farmers’ right :
- a farmer who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act;
- the farmers’ variety shall be entitled for registration if the application contains declaration as specified in clause (h) of sub-section (1) of section 18;
A farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund: Provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act;
A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.
Plant Varieties Protection Appellate Tribunal
The Central Government may, by notification in the Official Gazette, establish a Tribunal to be known as the Plant Varieties Protection Appellate Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this Act. An appeal can be preferred to the Tribunal within the prescribed period from any-
- order or decision of the Authority or Registrar, relating to registration of a variety; or
- order or decision of the Registrar relating to registration as an agent or a licensee of a variety; or
- order or decision of the Authority relating to claim for benefit sharing; or
- order or decision of the Authority regarding revocation of compulsory licence or modification of compulsory licence; or
- order or decision of the Authority regarding payment of compensation, made under this Act or the rules made there under.
The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
Special provisions relating to application for registration from citizens of convention countries.-
Where a person has made an application for the granting of a breeder’s right to a variety or for entering such variety in the official register of varieties in a convention country and that person, or any person entitled to make application on his behalf, makes an application for the registration of such variety in India within twelve months after the date on which the application was made in the convention country, such variety shall, if registered under this Act, be registered as of the date on which the application was made in the convention country and that date shall be deemed for the purposes of this Act to be the date of registration