This Article has been written by Ms. Anam Siddiqui , a 2nd year student (BALLB) of Sadanlal Savaldas Khanna Girls Degree College, Prayagraj.

Abstract:

This Article is going to deal with those International Treaties and Agreements with India which made India to enact legislations relating protection of plant variety and involvement of India Plant Variety Protection provisions. International treaties form a legal relationship between the countries which are party of the treaty and afterwards their relations are governed by the provisions of the treaty. Treaties regarding protection of plant variety are signed in order to encourage creation of new plant breeds and for development of the society.

Keywords:

International Treaties, Environment Protection and Conservation, Intellectual Property Rights, The International Union for the Protection of New Varieties of Plants (UPOV), Novelty,   The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), 

Introduction:

International Treaties and Agreements are the written and signed agreements, which are governed by international laws. In it, two or more countries are the parties. International organizations can also be the party of international treaties. These treaties can relate to different fields like: Human Rights, Defense, Trade and Commerce, Environment Protection and Conservation, Agriculture, etc. 

We can see following international agreements regarding protection of plant varieties:

The International Conventions for the Protection of New Varieties of Plants:

It is an international agreement which was drafted in 1961 and enforced in 1968. It aims towards protecting plant breeds by granting them Intellectual Property Rights. The provision of this convention provides Intellectual Property Rights to the breeders providing protection to the plant varieties.

The International Union for the Protection of New Varieties of Plants (UPOV), is a body formed by the international treaty, having its headquarters in Geneva, Switzerland. Its object is to develop new plant Varieties by encouraging the plant breeders and develop an impactful system of plant variety protection. Currently, it had 75 countries as its member.

Further, it was amended in the year 1972, 1978 and 1991 and with the time, the various countries came forward and involved with this convention. 

Need for such convention:

Plant breeding is a long and expensive method of developing a plant with improved traits. It can easily be robbed and easily reproduced by the other person. Thus, breeders need protection for the plant varieties that they develop, so that they can recover their investments. For propagating the variety which is protected by the IPR, for commercial uses, requires authorization from the breeder.

Breeder’s protection:

Breeder of a plant can only protect the new variety of plant. No other person except the breeder can obtain such protection.

A farmer, an individual, a private institution or any public firm; anyone can be considered as breeder.

Pre-requisite for registering:

The plant variety should have following characteristics: 

1. Novelty- The variety should be new and different. It should be distinguishable from other varieties.
2. Variety denomination- Generic name of plant variety.
3. Formalities and payment of fees.
4. DUS- Distinctness, Uniformity, Stability.

Under this Convention, a title is issued for a limited period, after a proper examination of the variety. It also makes the protected rights invalid. It provides for denomination of new varieties.

Exceptions of the Convention:

1. Farmed saved seeds Activities related to private farming, done for non-commercial purposes are excluded from protection.
2. Farmed Saved Seeds (FSS) are also excluded from the protection

Tenure of protection:

• The 1978 Act provides protection of term of fifteen years, and for vines, forest trees, fruit trees and ornamental trees, no less than eighteen years.
• The 1991 Act provides protection of term of twenty years, and twenty-five years term for tree and vine varieties.

Sessions are also held once in a year and are attended by the members of UPOV.  Their focus remains on the Crop specific Issues. 

No doubt, the UPOV system have encouraged plant variety protection at international level in recent years.

Trade-Related Aspects of Intellectual Property Rights (TRIPs):

 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) was adopted in 1994. It gives less attention to the breeder’s right and plant variety protection but have been proved helpful in encouraging protection of plant varieties.

Article 27.3(b) of this agreement states that:

Members may also exclude from patentability: (b) plants and animals other than microorganisms; and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection for plant varieties either by patents or by an effective sui generis system or by any combination thereof. 

Article 27.3(b) permits WTO Members to protect plant varieties using one of three distinct approaches: (1) patent law, (2) an effective sui generis system or (3) a combination of elements from both systems. 

Article 33 OF TRIPs provides a 20-year term of protection from the date the patent application is filed.

The owner of the patented product or process owns an exclusive rights. These include the right to prevent third parties from making the product, using the process or from using, offering for sale, selling or importing for those purposes the patented product or the product obtained by the patented process.

Implications of Plant Variety Protection in India: 

Plant variety protection provides a form of legal protection of a variety of plant to a breeder in for of a Plant Breeder’s Rights (PBRs). These are the intellectual property rights granted to a breeder of a registered variety of plant.

The Agreement of TRIPs (Trade Related Aspects of Intellectual Property Rights) mandates those countries which are the member of World Trade Organization (WTO) to have an effective system for protection of plant varieties. 

The Plant Variety Protection and Farmers Rights Act (PPVFRA) 2001: This Act increases agricultural development accelerates investment in research and development for creating new varieties, which could help in enhancing high quality of the seeds. 

The Plant Variety Protection and Farmers Rights Act (PPVFRA) 2001, is a step of Indian Government to protect the rights of plant breeders and farmers in respect of commercialization as well as contribution in encouraging new plant varieties. 

History of the Act:

The Act was enacted in 2001 after various controversies in different countries to apply Intellectual Property Rights in Indian agriculture joined with World Trade Organisation and implementing agreement on TRIPs.

Under the PPVFR Act, farmers can be registered as a plant breeders after registering their varieties.

Registrable Plant Varieties in India:

Following Four Varieties of plants are registrable under the Plant Variety Protection and Farmers Rights Act (PPVFRA) 2001: 

1. New varieties            3. Extant varieties
2. Farmer’s varieties     4. Essentially Derived varieties (EDV)

 

1. New Varieties: Those varieties which are not under public domain of India i.e., not protected by any intellectual property rights earlier than one year before of filing, or outside India, in case of trees and vines earlier than six years, and in other cases, earlier than four years.
2. Extant Varieties: A Variety which is notified under The Seeds Act, 1966 or a variety about which there is common knowledge or a farmer’s variety or any other variety which is in public domain is considered as an Extant variety. 
3. Farmer’s variety: A variety which has been traditionally cultivated and evolved by the farmers in their fields or a variety which is a wild relative or land race of a variety about which farmers possess common knowledge.
4. Essentially derived variety (EDV): Plant variety is taken to be an essentially derived variety of another plant variety if:
   1. It is predominantly derived from that other plant variety 
   2. It retains the essential characteristics that result from the genotype or combination of genotypes of that other variety (c) It does not exhibit any important (as distinct from cosmetic) features that differentiate it from that other variety.

Criteria for Registration: 

Following criteria shall be met for registration:

1. Novel: A new variety shall be deemed to be novel. I f at the date of filing of 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 the breeder, for the purposes of exploitation of such variety (a) in India, for more that one year or (b) outside India in the case of trees or vines, earlier than 6 years or, in any other case, earlier than four years. 
2. Distinct: A new variety shall be deemed to be distinct if it is clearly distinguishable by at least one essential characteristic from any commonly known variety. 
3. Uniform: The new variety shall be deemed to be 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
4. Stable: A new variety shall be deemed to be 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.

Rights under the Act:

• Breeders’ rights: Breeders are granted rights to produce, sell, import or export the protected variety.  Breeder can appoint their representative as an agent and may exercise for civil remedy in case of infringement of rights. 
• Researchers’ rights: Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder. 
• Farmers’ rights: A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPVFR Act, 2001.

Exemptions under the Act:

• Farmers Exemptions: Farmers have right to produce, save, utilise, share or sell  produces and protected variety of seeds under such variety .
• Researcher’s Exemption: Researchers have right to use the registered variety for experiments and using the variety for creation of a new variety.

Plants covered under PPVFR Act, 2001:

Following species of the plants can be registered under the Act:

• Cereals: Rice, wheat, maize, pearl millet, sorghum
• Legumes: chickpea, mungbean, urdbean, fieldpea, rajmash, lentil, pigeon pea
• Fibre crop
• Four species of cotton namely, Gossypium arboretum L. and G. harbaceum L.(diploid cotton) and G. barbadense L. and G. hirsutum L.(tetraploid cotton)
• Two species of jute (Corchorus olitorius L. and C. capsularis L.)

Other species in the pipeline are:

• Mango [ Mangifera indica L.] 
• Indian mustard [ Brassica juncea L.]
• Rapeseed [ Brassica rapa L.] 
• Gobhi Sarson [ Brassica napus L.] 
• Groundnut [ Arachis hypogaea L.] 
• Castor [ Ricinus communis L.] 
• Linseed [ Linum usitatissimum L.] 
• Sesame [ Sesamum indicum L.] 
• Sunflower [ Helianthus annuus L.]
• Safflower [ Carthamus tinctorius napus L.]
• Soyabean [ Glycine max (L.) Merrill]

The owner of the protected variety has a right to produce, sell , distribute import and export the variety.

Conclusion:

The impact of UPOV Convention has grown in recent years. Under UPOV Convention, farmers can use the part of the harvest of protected variety with reasonable limits and safeguarding the legitimate interest of the breeder. We can conclude that by the inactment of The Plant Variety Protection and Farmers Rights Act (PPVFRA) 2001, protection has been granted to the new varieties if the plants innovated by the breeders. Thus, helping them to motivate by the way of appreciation. Farmers rights have been protected by the provisions of the act. Thus, helping the development of the agriculture of India. It helps in the acceleration of the overall India economy.

References:

• The article is originally published on the website of Protection of Plant Variety and Farmer’s Rights Authority, link for the same is herein: https://plantauthority.gov.in/compendium-varieties-registered-under-ppvfr-act-2001 
• The article is originally published by Dr. Malathi Lakshmikumaran and Dr. Rajani jaiswal on the website of Lakshmi kumaran & Shridharan associates, link for the same is herein: https://www.lakshmisri.com/Media/Uploads/documents/plant_variety_protection_in_india.pdf 

 

• The article is originally published on the website of Food and Agriculture Organization, link for the same is herein:  https://www.fao.org/3/y5714e/y5714e03.htm#bm3 
• The article is originally published on the website of UPOV, link for the same is herein:   

https://www.upov.int/portal/index.html.en