[The Viewpoint] Scope of intellectual property protection of plant varieties and rights of farmers

In the early 1930s, when countries around the world were impacted by the Great Economic Depression, a new set of international economic principles evolved, and policies were framed to liberalize trade and regulate competition.

In this backdrop, some noteworthy agreements came in existence such as the agreement establishing the World Trade Organization, the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the General Agreement on Tariffs and Trade (GATT), and teh International Union for the Protection of New Varieties of Plants (UPOV).

Taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce these rights do not themselves become barriers to legitimate trade, the TRIPS agreement was developed to reduce distortions and impediments to international trade. It developed as an extensive regulation of substantive intellectual property rights and their enforcement.

With the dissemination of Mendelian theories in the early 1900s, the establishment of plant breeding on genetic principles became feasible. Prior to this, farmers had selected and harvested seeds from plants which showed desirable traits such as disease resistance and suitability to their local conditions without being aware of their genetic component. With the passage of time, agricultural innovation shifted from the farmers to the corporations because of the intellectual property incentive provided. As a result, corporate seed companies secured repeat purchases of the seed, which was in direct contradiction to the practice of the farmers as they saved seeds for future planting.

Article 27.3 of the TRIPS agreement, which governs the exclusion of plant varieties from scope of patentability, imposes an obligation on members to enact legislation to protect new plant varieties that result from plant breeding. Member countries can choose the form of protection either by patent or by an effective sui generis method, or both.

Plant varieties are protected in India in the form of plant breeder’s rights under the Plant Variety Protection and Farmers Rights Act, 2001. The Registrar, Protection of Plant Varieties and Farmers' Rights Authority is the governing authority under the Act.

Under the Act, four types of plant varieties can be registered:

1. New Variety: A plant variety is considered to be a new variety when it is not in the public domain in India prior to one year before the date of filing; or prior to six years outside India, in case of trees and vines, or prior to four years, in any other case.

2. Extant Variety: An extant variety is a variety which is either in the public domain or about which there is a common/traditional knowledge. It also covers a plant variety which is defined as an extant variety under the Seeds Act as may be prescribed from time to time by the Central government.
   

3. Farmers’ Variety: Is a variety which has been traditionally cultivated and evolved by farmers in their fields. These are all varieties that are publicly available and freely used by farming communities. Apart from the extant variety, farmers’ variety is given protection as a separate category. The first category of farmers’ variety it is covered under the extant variety which satisfies the standard of DUS (Distinctiveness, Uniformity and Stability) and can specifically be identified with a farmer or group of farmers or a community. The second category is traditional plant varieties that do not identify with a specific farmer or community, but exist from generation to generation.

4. Essentially Derived Variety: This variety is developed from an initial variety or from a variety that is predominantly derived from such initial variety, is clearly distinguishable from the initial variety, but also retains the essential characteristics.

A new variety can be registered provided it is novel, distinctive, and has uniformity and stability:

• Novelty: A plant variety is considered to be a new variety when it is not in the public domain in India, prior to one year before the date of filing; or outside India, prior to six years, in case of trees and vines, or prior to four years, in any other case.
  

• Distinctiveness: A new variety is considered to be distinctive if it is distinguishable by at least one essential characteristic from a variety whose existence is a common knowledge/traditional knowledge at the time of filing an application.

• Uniformity: The essential characteristics of particular propagation should be uniform, even if they are being subject to certain variation.
  

• Stability: If essential characteristics remain unchanged after repeated propagation, or in the case of a particular cycle of each propagation, at the end of each cycle, the variety is considered to be stable.

Under the Act, certain rights are granted to the breeder which are enumerated below:

1. Right to produce, sell, market, distribute, import or export the variety which is granted to the breeder, his successor, his agent or licensee; and

2. Right to authorize any person to produce, sell, market or otherwise deal with their registered variety subject to the prescribed limitations and conditions.

Further, when an agent or licensee is authorized to sell, produce, market, export or import the variety, he shall apply to register his title and the Registrar shall, after satisfaction to his proof of title, register him as an agent or licensee, in respect of the variety for which he is entitled for above-noted rights. A certificate of registration is also issued to this effect containing the brief conditions of entitlement, if any, in the prescribed manner, and such certificate shall be the conclusive proof of such entitlement and the conditions laid, if any.

The Act also provides for benefit sharing in three ways, namely, benefit sharing from the registered variety, compensation to local communities for conserving genetic material and recognition and awards for conservation of traditional varieties useful for breeding new varieties. The quantum of such award is determined after ascertaining the extent and nature of the benefit claim, after providing an opportunity to be heard to both the plant breeder and the person claiming the share.

In the case of trees and vines, the certificate of registration is valid for nine years and shall be renewed subject to the condition that the total period of validity should not exceed eighteen years from date of registration. In the case of extant varieties and other cases, the certificate of registration is valid for six years and shall be renewed subject to the condition that the total period of validity should not exceed fifteen years from the date of registration.

Even though the Government of India has enacted the Act with a view to protect the intellectual property of breeders and farmers and their rights in plant varieties, lack of awareness and adequate information at the grass-root level poses serious challenges to the farmers in securing and enforcing their rights. In order to create a level playing field at the global level and to create a comprehensive IP regime, like the one in place for trademark, copyright, design and patent, plant varieties also need to be recognized and protected by expanding the role of technologies and their focus in the rural pockets of country in the dissemination of knowledge and information.

Nikita Lakhani and Anand Kumar are Associates at Sujata Chaudhri IP Attorneys.