PROTECTION OF PLANT VARIETIES AND FARMERS' RIGHTS

ACT
PLANT VARIETY PROTECTION & THE PURPOSE

• Plant variety protection provides legal protection of a

plant variety to a breeder in the form of Plant breeder’s
rights.

• Plant Breeder’s Rights are intellectual property rights

that provide exclusive rights to a breeder of the
registered variety.
 What are farmers’ rights?
i. 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;
ii. The farmers’ variety shall be entitled for registration if the application contains
declaration as specified in clause (h) or sub-section (1) of section 18;
iii. 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 registerable under this Act;
iv. 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.
 Note: Branded seed means any seed put in a package or any other
container and labelled in a manner which gives indication that such
seed is of a variety protected under this Act.
Objectives of PPVFR Act
1. To stimulate investments for research and development
both in the public and the private sectors for the
developments of new plant varieties by ensuring appropriate
returns on such investments;
2. To facilitate the growth of the seed industry in the country
through domestic and foreign investment which will ensure
the availability of high quality seeds and planting material to
Indian farmers; and
3. To recognize the role of farmers as cultivators and
conservers and the contribution of traditional, rural and
tribal communities to the country’s agro biodiversity by
rewarding them for their contribution through benefit
sharing and protecting the traditional right of the farmers.
THE PLANT VARIETY PROTECTION AND
FARMERS RIGHTS ACT 2001
• a sui generis system, is an attempt by the Indian
Government to recognize and protect the rights of both
commercial plant breeders and farmers in respect of their
contribution made in conserving, improving and making
available plant genetic resources for development of new
plant varieties and to encourage the development of new
plants varieties.
• Protection of the plant varieties under the Act accelerates
agricultural development and stimulates investment for
research and development for the development of new
plant varieties which in turn facilities the growth of the
seed industry and ensures the availability of high quality
seeds and plant in material to the farmers.
 WHY PROTECTION FOR PLANTS IS REQUIRED
IN India?
• The Agreement on TRIPS requires WTO members to introduce an “effective system” for
the protection of plant varieties. Article 27 (3) of the TRIPS agreement reads
• Member countries may exclude
“plants and animals other than micro-organisms and essentially biological processes for
the production of plants and animals other than non-biological and microbiological
processes. However, Members shall provide for the protection of plant varieties either by
Patents or by an effective sui generis system or by any combination thereof.
• India is among the first countries in the world to have passed legislation granting Farmers'
Rights in the form of the Protection of Plant Varieties and Farmers' Rights Act, 2001
(PPVFR).
• Nine rights are given to farmers under the Act including: the rights to save, exchange and
(to a limited extent) sell seeds and propagating material, to register varieties, to
recognition and reward for conservation of varieties, to benefit sharing, to information
about expected performance of a variety, compensation for failure of variety to perform,
availability of seeds of registered variety, free services for registration, conducting tests
on varieties, legal claims under the Act, and protection from infringement.
 WHAT IS A PLANT VARIETY

• A variety is a plant grouping within a single botanical

taxon of the lowest known rank, defined by the
expression of the characteristics resulting from a
given genotype or combination of genotypes. The
variety should be distinguished from other plant
grouping by expression and should be considered as a
unit with regard to its suitability for being propagated
unchanged.
Variety means a plant grouping except microorganisms
within a single 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 form 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
REGISTERABLE PLANT VARIETIES IN India
• New Varieties: A Variety which is not in public domain
in India earlier than one year before the date of filing or
outside India, in the case of trees or vines earlier than
six years or in any other case earlier than four years.
• Extant Variety: A Variety which is notified under Seed
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 considers as an Extant
Variety.
contd…
• contd…
• 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.
• Essentially Derived Variety (EDV):
i)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 genotypes of such initial variety.
ii)Is clearly distinguishable from such initial variety; and
iii)Conforms to such initial variety in the expression of the
essential characteristics.
NON-REGISTERABLE PLANT VARIETIES IN India

• All plant varieties cannot get legal protection in India.

Certain Plant varieties are excluded from the protection
under PPVFR Act 2001.
• Any variety where prevention of commercial exploitation
of such variety is necessary to protect public order or
public morality or human, animal and plant life and health
or to avoid serious prejudice to the environment or
• any varieties which has terminator technology or
• any variety belonging to the species or genera which is not
listed in the notification issued by the Central Government
cannot be registered for the protection under the Act.
CRITERIA FOR PROTECTING A PLANT VARIETY

The plant variety must be:

• Distinct: A variety should be clearly distinguishable by
at least one essential characteristic from existing or
commonly known varieties in any country at the time of
filing of the application.
• Uniform: A Variety must be sufficiently uniform in its
essential characteristics.
• Stable: Essential characteristics of a variety must be
stable after repeated propagation or in the case of a
particular cycle of propagation at the end of each cycle.
WHO CAN APPLY FOR THE REGISTRATION OF A PLANT VARIETY?

• Any person claiming to be the breeder of the variety;

• Any successor of the breeder of the variety;
• Any person being the Assignee or the breeder of the
variety in respect of the right to make such application;
• Any farmer or group of farmers or community of
farmers claiming to the breeder of the variety;
• Any person authorized to make application on behalf of
farmers; and
• Any university or publicly funded agricultural institution
claiming to the breeder of the variety.
WHERE TO FILE THE APPLICATION FOR THE REGISTRATION OF A PLANT VARIETY?

• For the purposes of Protection of Plant Varieties and

Framers Right Act, 2001 Protection of Plant Varieties
and Farmers Right Authority was established in
October 2005 and its Head Quarters is located at
NASC Complex, DPS Marg, Opp-Todapur, New
Delhi – 110 012.
• Any information regarding protection, application, fee
structure etc can be obtained from the office or at
http://www.Plantauthority.gov.in/
 PREREQUISITES FOR FILING AN APPLICATION
FORM FOR REGISTERATION OF PLANT VARIETY
• Denomination assigned to such variety
• An affidavit that variety does not contain any gene or gene sequence
involving terminator technology
• Complete passport data of parental lines with its geographical
location in India and all such information relating to the contribution
if any, of any farmer(s) village, community, institution etc in
breeding and developing the variety
• Characteristics of variety with description of Novelty,
Distinctiveness, Uniformity and Stability
• A declaration that the genetic material used for breeding of such
variety has been lawfully acquired
• A breeder or other person making application for registration shall
disclose the use of genetic material conserved by any tribal or rural
families for improvement of such variety
DEPOSITION OF SEED OR PROPAGATING
MATERIAL BEFORE REGISTRATION
• Deposition of seeds is necessary for DUS test
conducted by PPV & FR authority. The applicant
needs to deposit the fixed amount of seed or
propagating material with prescribed germination
percentage and physical purity along with the seed
quality test report to the authority.
 DURATION OF PROTECTION FOR A
REGISTERED PLANT VARIETY
• Trees and Vines: 18 Years
• Other crops: 15 Years.
• Extant Varieties: 15 Years from the date of
notification of that variety by the Central
Government under Seed Act, 1966.
EXEMPTIONS PROVIDED UNDER THE ACT

• Farmers Exemption: Farmer shall be entitled to

produce, save, use, sow, re-sow, exchange, share or sell
his farm produce including seed of a variety protected
under this Act.
• Researchers Exemption: Researchers are allowed to
(i)use the registered variety for conducting experiment
• (ii) use the variety as an initial source of variety for the
purpose of creating other varieties.
PLANTS THAT ARE COVERED UNDER THE
PPVFR ACT
• As of now following 18 plant species can be registered under the Act.
• Cereals: Rice, Wheat, Maize, Sorghum, Pearl Millet.
• Legumes: Chickpea, Mungbean, Urdbean, Field Pea, Rajmah, Lentil, Pigeon
Pea.
• Fibre Crop:
• Four species of cotton namely Gossypium Arboreum L. and G. Herbaceum L.
(Diploid Cotton) and G. Barbadense L. and G. Hirsutum L. (Tertaploid Cotton)
• Two species of Jute (Corchorus Olitorius L. and C. Capsularis L.)
THE RIGHTS ENJOYED BY THE OWNER
OF VARIETY/BREEDER’S RIGHTS
The owner of the protected variety has the following
rights
a. To produce
b. To Sell
c. To market
d. To distribute
e. To import and
f. To export the variety.
• The knowledge of the indigenous people and the traditional
farmers has made a significant contribution in the
development of new crop types and biodiversity
conservation.
• Monsanto sued farmers for re-sowing GM seed62: Monsanto
Company is suing dozens of American and Canadian farmers
for infringement of its patent on genetically modified (GM)
crops. Investigators hired by the company keeps an eye on
the farmers and collect evidence of the illegal planting of the
Monsanto’s GM crops of cotton, maize, rapeseed and
soybean. Farmers who used Monsanto’s crops to produce
seed for planting have been fined thousand of dollars for
patent infringement and some face bankruptcy. The company
also advertises a toll-free-telephone number for people to
inform on farmers who use unlicensed seed.
 • BENEFIT SHARING
The Plant Variety Act of India has benefit sharing mechanisms which
requires sharing the benefits arising from commercialization of
traditional knowledge. The bio-diversity has a great economic value and
hence need to be conserved. Unless there is adequate incentive for
conserving the bio diversity for future generations, there will be genetic
erosion that will ultimately be detrimental to the interests of the society.
• Case Study of Jeevani: the Miracle Drug
The drug Jeevani is developed from the perennial plant Arogyapaacha.
Four patent applications were filed on Jeevani. The technology was then
licensed to the Arya Vaidya Pharmacy Ltd. an Indian pharmaceutical
manufacturer pursuing the commercialization of ayurvedic herbal
formulations. A trust was established to share the benefits arising from
the commercialization of the traditional knowledge based drug called
‘Jeevani’. The rationale attributed being, if the local communities had
not conserved the biodiversity, the probability of scientists making any
selection at all would have been remote or nil.
BIODIVERSITY ACT 2002
 Biodiversity means

• Biological diversity, or "biodiversity," refers to the

variety of life on earth. It includes diversity of
ecosystems, species and genes, and the ecological
processes that support them. India is one of the 12-
mega biodiversity countries of the world.
 Patenting Life Form

• Article 27(3) of the TRIPS agreement exclude plants

and animals other than micro-organisms, and
essentially biological processes for the production of
plants or animals other than non-biological and
microbiological processes from patentability.
• This can be barrier to the technological and economic
development of the least developed countries, but such
exclusion in their respective country does not protect
the same from patentability in other region or country.
• Example includes the issuance of U.K. patent covering
nuclear transfer technology, which was used to clone
the first animal, the famous ‘Dolly the Sheep’
 Biopiracy
• Biopiracy is the illegal appropriation of life --
microorganisms, plants and animals (including
humans) -- and the traditional cultural knowledge that
accompanies it.
• Biopiracy commonly operates through the application
of Intellectual Property Rights (IPR) (primarily
patents) to genetic resources and traditional
knowledge.
Bioprospecting
• Bioprospecting is the search for biological resources
and accompanying indigenous knowledge primarily
for the purpose of commercial exploitation.
 Legal Cases
• TURMERIC:  In 1995, two non resident Indians at the University of
Mississippi Medical Centre, Jackson, (Suman K.Das and Hari Har
P.Cohly) were granted a US patent (Patent number 54015041) for
turmeric to be used for healing wounds. The Indian Council for
Scientific and Industrial Research (CSIR) filed a    re-examination
case with the US Patent Office challenging the patent on the grounds
of “prior art”, i.e. existing public knowledge . The claim had to be
backed by written documentation claiming traditional wisdom. CSIR
submitted a document proof in the form of research paper published in
1953 in the Journal of the Indian Medical Association. The US Patent
Office upheld the objection and cancelled the patent in 1997.
 Neem
• India's 10-year-long battle against the grant of a patent on the use of NEEM
as a fungicide has finally been won at the European Patent Office (EPO).
• Patent rights on a method for controlling fungi on plants by the aid of a
hydrophobic extracted neem oil had originally been granted by the EPO in
September 1994 to the United States Department of Agriculture (USDA)
and the New York-based multinational agribusiness corporation WR Grace.
• In June 1995, a legal opposition to the grant of this patent was filed jointly
by Dr Vandana Shiva, director of Delhi-based Research Foundation for
Science, Technology and Ecology (RFSTE), Ms Magda Aelvoet of the
Green Group in European Parliament and Ms Linda Bullard of International
Federation of Organic Agriculture Movements (IFOAM).
• Consequently, the EPO revoked the patent in May 2000. The MNC,
however, appealed the patent revocation. It is against this appeal that the
EPO has finally upheld its earlier decision, thereby revoking in its entirety
the patent rights once and for all on March 8, 2005.
 Convention on Biological Diversity (CBD)

• The Convention is founded on the principle that local

communities generate and are dependent on biodiversity and
should continue to benefit from it.
• Signed in 1992 at the 1992 UN Conference on Environment
and Development (UNCED) in Rio de Janeiro entered into
force on 29 December 1993.
• more than 170 countries
• India became a signatory to the Convention on Biological
Diversity (CBD) in June 1992.
Three goals
• To promote the conservation of biodiversity
• the sustainable use of its components and
• the fair and equitable sharing of benefits arising out of the
utilization of genetic resources.
 Why do we need this legislation on biodiversity?
•To realize equitable sharing of benefits arising out of the use of
biological resources and associated knowledge. The proposed
legislation primarily addresses the issue concerning access to
biological resources by foreign individuals, institutions or
companies.
•to combat what has been termed biopiracy.

How will the proposed legislation check biopiracy?

•The proposed legislation provides that access to biological resources
and associated knowledge is subject to terms and conditions, which
secure equitable sharing of benefits. Further, it would be required to
obtain the approval of the National Biodiversity Authority before
seeking any IPR based on biological material and associated
knowledge obtained from India.
 The Structures of Biodiversity Act- 2002

• National Biodiversity Authority (NBA): All matters relating to

requests for access by foreign individuals, institutions or companies, and
all matters relating to transfer of results of research to any foreigner will
be dealt with by the National Biodiversity Authority.
• State Biodiversity Boards (SBB): All matters relating to access by
Indians for commercial purposes will be under the purview of the State
Biodiversity Boards (SBB). The Indian industry will be required to
provide prior intimation to the concerned SBB about the use of biological
resource. The State Board will have the power to restrict any such
activity, which violates the objectives of conservation, sustainable use
and equitable sharing of benefits.
• Biodiversity Management Committees (BMCs): Institutions of local
self government will be required to set up Biodiversity Management
Committees in their respective areas for conservation, sustainable use,
documentation of biodiversity and chronicling of knowledge relating to
biodiversity.
 Salient features of the Biological Diversity Act, 2002:-

• to regulate access to biological resources of the country;

• to conserve and sustainably use biological diversity;
• to respect and protect knowledge of local communities related to
biodiversity;
• to secure sharing of benefits with local people as conservers of
biological resources and
• holders of knowledge and information relating to the use of
biological resources;
• conservation and development of areas of importance from the
standpoint of biological diversity by declaring them as
biological diversity heritage sites;
• protection and rehabilitation of threatened species;
• involvement of institutions of state governments in the broad
scheme of the implementation of the Biological Diversity Act
through constitution of committees.  
 Regulation of Access to Biological Diversity[sec (3)]

• A person who is not a citizen of India or who is a citizen of

India but is a non-resident , or a body corporate, association or
organization that is not incorporated or registered in India or
if incorporated or registered in India has any non-Indian
participation in its share capital or management, is prohibited
from obtaining any biological resource occurring in India or
knowledge associated thereto for research or commercial
utilization or for bio-survey or bio-utilization without the prior
approval of the National Biodiversity Authority
 Application for intellectual property rights not to
be made without approval of NBA[Sec (6)]
• previous approval of the NBA before making
application
• on approval, NBA impose benefit sharing fee or
royalty or both or impose conditions including the
sharing of financial benefits arising out of the
commercial utilization of such rights.
 Prior intimation to SBB for obtaining biological resource for certain
purposes [Sec(7)]

• Any biological resource for commercial utilization,

or bio survey and bio utilization for commercial
utilization shall be obtained after giving prior
intimation to the SSB.
• Exemptions- shall not apply to the local people and
communities of the area, including growers and
cultivators of biodiversity, and vaids and hakims,
who have been practicing indigenous medicine.
 The main functions of the NBA [sec(18)]
• To lay down procedures and guidelines to govern the
activities provided under   Section 3, 4, and 6. (Permission
to foreigners/NRI’s foreign companies)
i)For obtaining any biological resource (Section -3)
ii)For transferring the results of any research (Section -4)
iii)Certain collaborative research projects exempted
(Section 5)
• To encourage setting up State Biodiversity Boards
• To build up database and documentation system
•  To create awareness through mass media
 The benefits
• While granting approvals, NBA will impose conditions, which secure
equitable share in the benefits arising out of the use of biological
resources occurring in India or knowledge relating to them.
• These benefits could include monetary gains, grant of joint
ownership of IPRs, transfer of technology, association of Indian
Scientists in R&D, setting up of venture capital fund etc.
• For individuals , the monetary benefits will be paid directly to them.
• Otherwise, the amount will be deposited in the National Biodiversity
Fund.
 Amendments to the Biodiversity Act

• The Biodiversity Act was amended in May 2009 to specify that bioprospecting permits
are only required for the commercialization phase of bioprospecting projects and/or for
export.
• The Minister of the Department of Water and Environmental Affairs must be given
notice of a bioprospecting project before the discovery phase begins.
• An undertaking by the project leaders to comply with the requirements of the Act if the
project enters the commercial phase also needs to be given.
• Researchers should note that a bioprospecting project will be regarded as having
entered the commercialization phase once a complete patent application has been filed,
irrespective of the actual commercial prospects of the project at that stage.
• The interests of specific individuals who possess traditional knowledge have now also
been protected. Anyone who carries on the commercialization phase of a bioprospecting
project based on the traditional knowledge of a specific individual, must now enter into
a benefit sharing agreement with the individual. Prior to this amendment, the Act only
applied to traditional knowledge which belonged to indigenous communities; and
• The penalties for contravening the Act have been increased to a fine of up to R5 million
for a first offence and up to R10 million for a subsequent offence, and/or imprisonment
for up to 10 years
THANK YOU