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PROTECTION OF PLANT VARIETEIES AND PROTECTION OF PLANT VARIETEIES AND FARMERS’ RIGHTS ACT, 2001FARMERS’ RIGHTS ACT, 2001

5 April 20105 April 2010WIPO WIPO

Malathi LakshmikumaranMalathi LakshmikumaranLakshmikumaran & Sridharan Lakshmikumaran & Sridharan

malathi@lakshmisri.com

Why Protection for plants is Why Protection for plants is required in India?required in India?

Compliance with TRIPSCompliance with TRIPS Some form of IPR protection is Some form of IPR protection is

necessary for plantsnecessary for plants Can be in the form of patent protection; orCan be in the form of patent protection; or By a By a sui generis sui generis system; orsystem; or By a combination of bothBy a combination of both

Crops Covered under the Crops Covered under the PPVFRAPPVFRA

CerealsCereals : : Rice, wheat, maize, sorghum, pearl milletRice, wheat, maize, sorghum, pearl millet Legumes: Chickpea, mungbean, urdbean, field pea, rajmash, Legumes: Chickpea, mungbean, urdbean, field pea, rajmash,

lentil, pigeon pealentil, pigeon pea

Fibre Crops : Cotton and JuteFibre Crops : Cotton and Jute

Third phase Third phase Sugarcane , ginger, turmericSugarcane , ginger, turmeric Fourth PhaseFourth Phase Oilseeds : Rapeseeds mustard, groundnut, soybean, sunflower, Oilseeds : Rapeseeds mustard, groundnut, soybean, sunflower,

safflower, castor, sesame, linseedsafflower, castor, sesame, linseed Fodder Varieties : Lucerne, berseem Fodder Varieties : Lucerne, berseem Vegetables : Tomato, brinjal, okra, cauliflower, cabbage, potato, Vegetables : Tomato, brinjal, okra, cauliflower, cabbage, potato,

onion, garliconion, garlic Flowers : Rose and ChrysanthemumFlowers : Rose and Chrysanthemum

Varieties that can be registeredVarieties that can be registered

Novel VarietyNovel Variety Extant VarietyExtant Variety Farmers Variety Farmers Variety Essentially derived variety Essentially derived variety

Varieties that are RegistrableVarieties that are Registrable

DISTINCT

UNIFORM

STABLE

ATLEAST ONE ESSENTIAL CHARACTERISTIC

SUFFICIENTLY UNIFORM

SUSCEPTIBLE TO CHANGE AFTER REPEATED PROPAGATION

Criteria

NOVEL VARIETY IS NEW

NOVELTY OF VARIETY IS PROTECTED-Sec. 15(3) a

1. EXPLOITATION BY SALE OR DISPOSAL

2. USED FOR TRIAL NOT NOVELTY DESTROYING

< 1 YEAR

IN INDIA OVERSEAS

FOR TREES & VINES < 6 YRS OTHERS < 4 YRS

Extant Variety (Section 2j )

A variety in public domain is eligible for protection

Notified under section 5 of Seeds act 1966 Farmers’ variety A variety about which there is common

knowledge and includes the propagating material from extant variety

Registration within Three Years Which species ? Not Clear – Can extant

variety get protection – Term of protection

Essentially Derived Variety (Section 2i)

Is a variety which is essentially derived from an initial variety

Retains expression of the essential characteristics

Clearly distinguishable from the initial variety

Conforms to the initial variety in the expression of essential characteristics except variation which result in the process of derivation

Not clearly defined in the Act

DUS testing guidelines For EDV not developed yet.

People who can apply for protection of a People who can apply for protection of a VarietyVariety

any person claiming to be the breeder of the varietyany person claiming to be the breeder of the variety

any successor of the breeder of the varietyany successor of the breeder of the variety

any person being the assignee of the breeder of the varietyany person being the assignee of the breeder of the variety

any farmer or group of farmers or community of farmers any farmer or group of farmers or community of farmers claiming to be the breeder of the varietyclaiming to be the breeder of the variety

any person authorised in the prescribed manner by the persons any person authorised in the prescribed manner by the persons mentioned abovementioned above

any university or publicly funded agricultural institution any university or publicly funded agricultural institution claiming to be the breeder of the varietyclaiming to be the breeder of the variety

PVP ConditionsPVP Conditions

DenominationDenomination Descriptors of varietyDescriptors of variety NoveltyNovelty DUS Characters DUS Characters Parental linesParental lines Terminator technologyTerminator technology

Rights of the Owner of the Variety Rights of the Owner of the Variety (Sec. 28)(Sec. 28)

The owner of the protected variety has the right toThe owner of the protected variety has the right to• Produce the protected varietyProduce the protected variety• Sell the varietySell the variety• Market the varietyMarket the variety• Distribute the varietyDistribute the variety• Import the varietyImport the variety• Export the varietyExport the variety

In case of the variety being an EDV where the EDV derived In case of the variety being an EDV where the EDV derived from a protected variety then an authorisation required from a protected variety then an authorisation required from the breeder of the initial varietyfrom the breeder of the initial variety

Infringement (Sec. 64)Infringement (Sec. 64)

Any one of the following done by a Any one of the following done by a person other than the owner or person other than the owner or without his authorisation / licensewithout his authorisation / license

• Sells, exports, imports or exports a Sells, exports, imports or exports a registered variety registered variety

• Sells, exports, imports or exports a Sells, exports, imports or exports a variety deceptively similar to the variety deceptively similar to the registered varietyregistered variety

Acts not considered to be infringementActs not considered to be infringement

Researcher Rights (Sec 30) : Researcher Rights (Sec 30) : Use of variety for research and Use of variety for research and

experimental purposes allowedexperimental purposes allowed Use of variety as an initial variety for the Use of variety as an initial variety for the

creation of a new variety allowedcreation of a new variety allowed Repeated use of the variety for Repeated use of the variety for

commercial production of a new variety commercial production of a new variety is not allowed without the authorization is not allowed without the authorization of the breeder of the registered variety.of the breeder of the registered variety.

Relief in Case of Infringement Relief in Case of Infringement (Sec. 66)(Sec. 66)

An injunction awarded against the infringerAn injunction awarded against the infringer

The plaintiff has the option to claim for damages The plaintiff has the option to claim for damages or a share of the profits of the infringeror a share of the profits of the infringer

Other Protection ProvidedOther Protection Provided

The PPVFRA provides a civil as well as a criminal liability for The PPVFRA provides a civil as well as a criminal liability for other acts which violates the rights of the owner of the other acts which violates the rights of the owner of the protected varietyprotected variety

Penalty for selling varieties to which false denomination is Penalty for selling varieties to which false denomination is applied (Sec. 71) – punishable offence with heavy fineapplied (Sec. 71) – punishable offence with heavy fine

Penalty for falsely representing a variety as registered (Sec Penalty for falsely representing a variety as registered (Sec 72) – punishable offence72) – punishable offence

Penalty for subsequent offence (Sec 73)Penalty for subsequent offence (Sec 73)

Duty of the Breeder of a Protected Duty of the Breeder of a Protected VarietyVariety

Shall in all circumstances provide correctly the Shall in all circumstances provide correctly the expected yield/performance under a given set of expected yield/performance under a given set of conditions conditions

Shall ensure that the denomination of the Shall ensure that the denomination of the protected variety conforms with the description protected variety conforms with the description of the protected varietyof the protected variety

Who is a Farmer ?Who is a Farmer ?A A farmer farmer is defined in the PPVFRA is defined in the PPVFRA as :as :

Section 2(k) "farmer" means any person who--Section 2(k) "farmer" means any person who--i.i. cultivates crops by cultivating the land himself; orcultivates crops by cultivating the land himself; orii.ii. cultivates crops by directly supervising the cultivation cultivates crops by directly supervising the cultivation

of land through any other person; orof land through any other person; oriii.iii. conserves and preserves, severally or jointly'. with conserves and preserves, severally or jointly'. with

any person any wild species or traditional varieties, or any person any wild species or traditional varieties, or adds value to such wild species or traditional varieties adds value to such wild species or traditional varieties through selection and identification of their useful through selection and identification of their useful propertiesproperties

Farmers’ Rights (Sec 39)Farmers’ Rights (Sec 39)

Has the same privilege with respect to a breeder of a varietyHas the same privilege with respect to a breeder of a variety

A farmers’ variety shall be entitled for registration if a A farmers’ variety shall be entitled for registration if a declaration has been made that the initial variety has been declaration has been made that the initial variety has been lawfully obtainedlawfully obtained

Can save, use, sow, resow, exchange, share or sell his farm Can save, use, sow, resow, exchange, share or sell his farm produce including seed of a protected varietyproduce including seed of a protected variety

The farmer as such cannot sell branded seeds of a protected The farmer as such cannot sell branded seeds of a protected varietyvariety

A farmer can claim damages if the seed of the protected A farmer can claim damages if the seed of the protected variety does not give the yield as stated by the breeder.variety does not give the yield as stated by the breeder.

Protection Against Unintentional UseProtection Against Unintentional Use (Sec 42) (Sec 42)

The act provides farmers against the The act provides farmers against the unintentional and accidental use of the unintentional and accidental use of the protected varietyprotected variety

No infringement if the farmer was unaware of No infringement if the farmer was unaware of the existence of the rightsthe existence of the rights

A relief granted as damages for infringement A relief granted as damages for infringement shall not be granted if the farmer proves shall not be granted if the farmer proves before court that at that time he was before court that at that time he was unaware of the existence of such rightunaware of the existence of such right

Farmers Are Exempted From Fees (Sec. Farmers Are Exempted From Fees (Sec. 44)44)

Farmer or a group of farmers not liable to Farmer or a group of farmers not liable to paypay

Fees in any proceedingsFees in any proceedings Including any fees payable for inspectionIncluding any fees payable for inspection For obtaining any copy of a document or a For obtaining any copy of a document or a

copy of a decision copy of a decision

A Compulsory Licensing System

Section 47

If seeds of a protected variety are not available after 3 yrs of registration

in adequate quantity, and at reasonable price, the Authority may grant license to a third

party to (a) undertake production, and (b) distribution and sale of the seed on

reasonable royalty

Benefit Sharing- National Gene Fund

Authority will invite claims for benefit sharing Authority will invite claims for benefit sharing from persons or organizationsfrom persons or organizations

Benefit sharing only for Indian Citizens and Benefit sharing only for Indian Citizens and OrganizationsOrganizations

Breeder can oppose the claims Breeder can oppose the claims Authority shall decide the quantum Authority shall decide the quantum The amount of benefit sharing shall be The amount of benefit sharing shall be

deposited with the National Gene Funddeposited with the National Gene Fund

THANK YOU!THANK YOU!