Anuhuj Dhingra Law Office

  FAQ



PLANT VARIETIES PROTECTION FAQ's

  1. What is the legal position in India for protecting New Plant Varieties?
  2. What are the objects and purposes behind plant varieties protection law?
  3. Is registration compulsory for protection under the act? What is the criteria for protection?
  4. What is the meaning of novelty under the Act?
  5. What is distinctiveness under the law?
  6. What is uniformity under the law?
  7. What is the meaning of stability under the law?
  8. What is the period of protection for new plant varieties?
  9. Should the applicant deposit the biological material for availing protection?
  10. What is the procedure for registration?
  11. Does the law provide for opposition prior to the registration of a new variety?
  12. What are the rights of the farmers?
  13. What is benefit sharing?
  14. Does the law provide for compulsory licensing?

1. What is the legal position in India for protecting New Plant Varieties?

India had passed the Protection of Plant Varieties and Farmer’s Rights Act, 2001 (Act 53 of 2001). The Act is yet to be enforced.

2. What are the objects and purposes behind plant varieties protection law?

  • To provide an effective system for protection of plant varieties, the rights of farmers and plant breeders, to encourage the development of new varieties of plants. It integrates:
    1. necessary to recognize and protect the rights of the farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new varieties,
    2. need to provide a protection to R&D which will facilitate the growth of the seed industry in the country which will ensure the availability of high quality seeds and plant material to the farmers,
    3. development of new plant varieties
  • To fulfill obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights 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

3. Is registration compulsory for protection under the act? What is the criteria for protection?

Registration is compulsory for claiming protection. The criteria for protection are

  • Novelty
  • Distinctiveness
  • Uniformity
  • Stability

4. What is the meaning of novelty under the Act?

New variety will be considered as novel, if at the time of filing the application for registration, the harvested material of a such a variety has not been sold or otherwise, disposed off during the last one year prior to the registration and in case of trees and veils, period of six years and in any other case for a period of four years. However, trial of new variety which has not been sold earlier shall not affect the right of protection.

5. What is distinctiveness under the law?

Distinctiveness means that at least one essential characteristic of the new variety is different from the usual prevalent varieties.

6. What is uniformity under the law?

That the unique essential characteristic must be sufficiently uniform and there should not be any variation in that essential quality beyond normally accepted limits. For example, if one comes up with the blue rose plant, and it is scientifically accepted to have a variation of say 0.1% maximum, the propagating material should not show plants more than 0.1% showing flowers which are not blue.

7. What is the meaning of stability under the law?

The essential characteristic should remain unchanged, within scientifically accepted limits, after repeated propagation and should be manifested generation after generation.

8. What is the period of protection for new plant varieties?

The initial certificate of registration, shall be valid in the case of trees and veils for a period of nine years, in case of other crops it will be six years. This period can be reviewed and renewed for an additional term which can not exceed in case of trees and veils eighteen years from the date of registration, fifteen years in case of other varieties.

9. Should the applicant deposit the biological material for availing protection?

The applicant must deposit the seeds or propagative material including parental line seeds of the registered variety in the National Gene Bank. The Depository Organization has been located in the Union territory of Chandigarh.

10. What is the procedure for registration?

The applicant should:

  • Assign a single and distinct denomination of the new variety from the existing ones;
  • By affidavit swear that such variety does not contain any gene sequencing to employ Terminator Technology;
  • Contain complete passport data of the parental lines from which the new variety had been derived;
  • State the geographical location in India from where the genetic material has been taken and also indicate, whether any farmer community or institution involved in breeding, evolving or developing the parental life;
  • Contain statement about its novelty, distinctiveness, uniformity and stability;
  • A declaration that the genetic material used for developing the new variety had been legitimately acquired;
  • Be accompanied with the prescribed fees;
  • Provide sample seeds with the application to enable the Registrar to conduct tests and the applicant should bear the costs of such testing.

11. Does the law provide for opposition prior to the registration of a new variety?

Yes. After the acceptance of the application, the Registrar will advertise in the gazette, the specifications of the new variety including photographs and drawings and call for objection against the Registration. Any person within three months from the date of advertisement may lodge the opposition along with the prescribed fee. The Registrar thereafter will forward the notice of opposition to the applicant who must lodge the counter statement within two months, failing with which the application will be deemed to have been abandoned. After the lodging of the counter statement by the applicant, the parties will be given chance to submit evidence in support of the respective cases and thereafter the matter will be decided in a quasi-judicial manner.

12. What are the rights of the farmers?

  • Farmers are entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including the seed of variety protected under the Act;
  • Farmers who are engaged in conservation of genetic resources shall be entitled for recognition and reward from the National Gene Fund;
  • Farmers who has bred or developed new variety are entitled for registration of their variety;
  • The breeder is required to disclose to the farmers expected performance of the variety under given conditions. Farmers are entitled to claim compensation in prescribed manner if performance of the variety in his field does match the expected performance assurances made by the breeder under given conditions.

13. What is benefit sharing?

This is a tool to ensure that equitable benefit is ensured to be brought for those who have developed or have conserved varieties, which have been used for development of a new variety that is registered under this Act. The breeder is required to pay amount of benefit sharing such as determined by the prescribed authorities, which is required to be paid into the National Gene Fund by the breeder.

14. Does the law provide for compulsory licensing?

Yes. Compulsory licensing provisions under this law are very similar to the patent law. There will be no compulsory licensing during the first three years of registration. It can be obtained later, if the reasonable requirements of the general public are not met at the reasonable cost.

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