NATIONAL SEMINAR ON INTELLECTUAL

PROPERTY RIGHTS: EMERGING ISSUES AND

CHALLENGES, 23rd SEPTEMBER 2001

LEGAL RESEARCH PAPER

ROLE OF INTELLECTUAL PROPERTY RIGHTS IN
PROTECTION OF PLANT VARITIES AND BREEDER’S
RIGHTS IN THE LIGHT OF PROTECTION OF PLANT
VARITIES AND FARMER’S RIGHT ACT, 2001

Submitted By:
Nishant Srivastav(Author)
B.B.A.L.L.B( H )
3rd Year, 5th Semester
SHRI RAMSWAROOP MEMORIAL UNIVERSITY
Deva Road, Barabanki, Lucknow
Mob No. – 7652095061
Email I.D – srivastavnishant55@gmail.com

Submitted To:
Chanakya National Law University, Nyaya Nagar, Patna,Bihar
Abstract On Role Of Intellectual Property Rights In Protecting Plant
Varities And Farmer’s Rights In The Lihgt Of Protection Of Plant
Varities And Breeder’s Right Act,2001
Intellect is a word that has its roots in Latin word intellectus meaning perception. Thus,
speaking etymologically, intellect is perception. It is the faculty of knowing and reasoning. It
is a barometer of one’s understanding of persons or things, of events and concepts;
individually or collectively. It is the birth place of ideas, rather than the idea itself. It is the
laboratory of the intelligible vibrations of brains, trying to bring forth certain ideas and
concepts or combinations of them.

Intellectual Property Rights are jus in re propria over immaterial things. In

other words IPRs may be looked upon as proprietary rights over things tangible. This,
however does not mean that these rights cannot cover tangible things. Since an IPR is a right
over an idea, it goes with the idea, and thus covers a thing covered by this idea. That is to say
if an idea which is the subject matter of an IPR is also covered by that IPR. The point to note
is taht if an IPR is said to be vested in a physical object it is so vested only because the idea,
which it covers as its subject matter, is there in that material thing.

The Intellectual Property as a concept is new and hence it has enriched our way
of looking at things. Its presence therefore needs to be looked at from different perspectives
so as to examine the influences of IPR on yhr idea of ownership, morality, piblic order,
cultural property, environment, and traditional knowledge.

The protection of the rights of breeder’s and farmer’s has gained general
acceptance in many states. The sates are convinced of the importance attaching to the
protection of new varities of plants not only for the development of the agriculture in their
territory but also for safe gaurding the interests of breeders. They are conscious of the special
problems arising from the recognition and protection of the rights of breeders through
patents and particularly of the limitations that the requirements of the public interest may
impose on the free exercise of such rights. They deem it highly desirable that these problems,
to which very many states rightly attach importance should be resolved by each of them in
accordance with uniform and clearly defined principles. The protection of Plant Varities anf
Farner’s Rights Act, 2001 was an initiative by the Indian Government to provide rights to
farmers and breedres. It aims to stimulate investments for research and development of new

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plant varities.

INTRODUCTION:
Intellectual Property Rights refers to the general term to the assignment of property rights
through patents, copyrights and trademarks. These property rights allow the holders exercise
a monopoly on the use of the item for specified period.

An intellectual is a person who engages in critical thinking, research, and reflection about
society and proposes solutions for its normative problems. Some gain authority as public
intellectuals. Coming from the world of culture, either as a conspirator or as a mediator, the
intellectual participates in politics either to defend a concrete propositionor to denounce an
injustice, usually by rejecting, producing or extending an ideology, and by defending a
system of value. Socially, intellectuals constitute the intelligentsia, a status class organised
either by ideology or by nationality.

The Supreme Court Of India in R.C.Cooper vs. Union Of India1 quoted the following
defination of property, “Property means the highest right a man can have to anything being
that right which one has to lands or tenement, goods or chattels which does not depend on
another’s courtesy: it includes ownership, estates and interests in corporeal things, and also
rights such as trademarks, copyrights, patents and and even in rights personal capable to
transfer or transmission, such as debts : and signifies a beneficial right to or a thing
considered as having a money value, especially wiyh reference to transfer succession,and of
their capacity of being injured.” Thus, Property in the abstract means, is what belongs to or
with something, whether as an attribute or as a component of said things.

Rights in ordinary sense means the standard of permitted action within a

certain sphere. According to John Austin2, “A party has a right when anothers and others are
bound or obliged by law do or forbear towards or in regards to him.”

Thus, the Intellectual Property Rights are legal rights governing the use of creations of human
minds. The recognitions and protections of theserights is recent origin.Patents, designs and
trademarks are considered as industrial property. As per Article2(vii) of the Convention

1
R.C.Cooper v Union Of India,(1970) S.C 564
2
Dr.S.R. MYNENI, Law Of Intellectual Property 2012-13(6th ed)

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Establishing the World Intellectual Property Organisation (WIPO) ‘Intellectual Property’
shall include rights related to3:

*literary, articles and scientific works;

*performances of performing artists, phonograms, am=nd broadcasts;

*inventionsin all fields of human endevour;

*scientific discoveries;

*industrial designs;

*trademarks, service marks and commercial names and designations;

*protection against unfair competitions

And other rights resulting from intellectual activity in the industrial, scientific, literary fields.

Evaluation of Intellectual Property Rights:

The British statute of Anne ‘1710of the statute of Monopolies’ 1623 are now regarded as the
origin of copyright and atent laws respectively.Although many of the legal principles
governing intellectual property have evolved over countries, it was not until the 19th centuary
that the term ‘Intellectual Property’ began to be used and not until the late 20th centuary that it
became common place in the USA.

Mordern uasge of the term ‘Intellectual Property’ goes back atleast as far as 1888 with
founding in Berne of the ‘Swiss Fed Off for Intellectual Property’ (the Bureau federal dela
propriete intellectuelle) when the administrativesecretaries established by the Pris
Convention 1883 and the Berne Convenction 1886 merged in 1883, in Berne, relocated to
Geneva in 1960 and was succeeded in 1967 with establishment of the World Intellectual
Property Organisation (WIPO) by a treaty asan agent of the UN.

The history of patents does not begin with the investigation, but with royal grants by
Queen Elizabeth (1558-1603) for monopoly privileges.

Approximately 200 yaers later after Elizabeth’s reign, however, patents represents a
legal right obtained by an inventor,providing exclusive control over the production of sale of

3
Dr.S.R. MYNENI, Law Of Intellectual Property 2012-13(6th ed)

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his mechanical or scientific invention, establishing theevolution of patents from royal
prerogtive to common law-doctrine.

In October 1845 Justice Charles Woodbry wrote in the patent came Davol et
al v. Broun, that “only in this way we can protect intellectual property, the labours of minds,
production of interests are asmuch as man’s own…..As the wheat he cultivates, or the flock
he rears”.

The Statement that ‘discoveries are property’ goes back earlier. All new discoveries are the
property of the author,to ensure the inventor the property and the temporary enjoyment of hid
discoveries, there shall be hima patent for 5, 10, 15 years. Under the Jewish Law’ geneivat
da’ at (Literally means mind theft) which some interpretation, to prohibit theft of ideas,
through the doctrine, principally concerns fraud and deception and not property.

Categories Of Intellectual Property Rights:

With the Trade Related Aspects Of Intellectual Property Rights (TRIPS) Agreement of
World Trade Organisation (WTO), intellectual property rights attained authority to enforce
the law internationally. According to the TRIPS the intellectual property rights are :

1.Copyrights and Related Rights

*Rights of artists, painters, musicians, photographers and authors for copyright in their
work.;

*Rights of computer programmers whether in source or object code for a copyright in

their programmes and compilation date;

*Rightsof performers producers of phonogrammes (sound recording) and broadcasting

organizations in respect of fixation on their programmers for a copyright in their work.

2.Rights of trader’s in teir trademarks.

3.Rights of manufacturers andproducerson geographicalindications in relation to such

products and produce.

4.Right of designers for their distinctive design striking to the eye.

5.Patents

*Rights of inventor for patents is hisinvention.

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 *Rights of plant breeders anf farmers.

*Rights of biological diversity.

6.Rights of computer technologies for their layout design of integrated circuit.

7.Rights of businessmen for protection of their undisclosed information on technology and

management i.e business secrets (Art 1(2) of TRIPS).

In this paper a more emphasis would be laid on Patents ans especially on Rights On Plant
Breeder’s and Farmer’s Rights.

Patents:
A patent is a form of industrial or intellectual property. A patent isaright granted to a person
who has invented a new and useful article or an improvement of an article or a new process
of making an article. It consists of an exclusive right to manufacture the new article invented
or manufacture an article according to the invented process for a limited period. After the
expiry of the duration of patents, anybody can make use of the invention.

The owner of the patents can sell hispatent property. He can also grant licences to
others to exploit the patent. The property in a patent is similar in many respects to other forms
of property. A patent being a creation of statute is territorial in extent. A person granted in
one state cannot be enforced in another state unless the invention concerned isalso patented in
that state.

Mainly states that the concept of patent and is essentially ingredients like novelty,
inventive step, lack of obviousness and sufficiency of description have remained the same
ever since it was conceived over four hundred years ago.

In ancient India a word like patent was unheard of. The rishis who meditated to attain the
knowledge of the highest possible order did sometimes create new things or old or existing
things through new methods. But all this was done, as is gathered from old texts, to meet the
exigencies. There was neither a claim from the inventor to get a monopoly right against the
society at large nor did the king one. The underlyning fact is that the seers who invented new
things or processes were devoted to the cause of humanity and had no idea to exploit this
commercially. All that the inventor could or did get , to be honest to him, all that he desired
was an appreciation from the king.

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 However the king those times being regarded as the representatives of the God
on earth, they would often reward the inventor wiyh jewels and gems, property and servants
etc. or, the king would honour the inventor by granting him a title which in the opinion of the
king and his advisers, befitted the achievement of the inventor.

The first significant direction in this step was the Paris Convenction for the
protection of Industrial property 1883. Other efforts which are truly global in nature are Ptent
Cooperation Treaty (PCT) of 1970, Rio Convenction on Biodiversityof 1992 and the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of 1994.

Global Efforts For Plant Protection:

So long as the plants were grown and developed through convenctional methods there was
hardly a need for their protection. From the times immemorial when man learnt to grow
plants in order to have their produce for his own consumption, the practice has gone on
increasing with the passage of time. So it would seem that the subject is one as old as can
possibly be thought of. However, with the advent of the era of science and technology the
field of agriculture too could remain isolated and uninfluenced by the technological onsaught
which taken the entire world of trade andcommerce in its grip.

UPOV is an independent international and inter-governmental organisation with

an international legal personality wiyh itsown employees ns staff and has itsheadquarters in
Geneva. In 1991, the 1978 act was furthur revised known as 1991 Act.

Protection Of Plant Varities And Farmer’s Right Act,2001:

The Protection Of Plant Act of 2001 was enacted to grant intellectual property rights to plant
breedre’s researchers and farmers who have developed any new or extant plant varities. The
Intellectual Property Rights granted under PVPFR Act, 2001 isadual right – one is for the
variety and another is for the denomination assignedto it by the breeder. The rightsgranted
under this act are heritable and assignable and only registartion of a plant variety confers the
rights. Essentially Derived Varities (EVD) can also be registered under thisact and it may be
new or extant. Farmers are entitled to save, use, sow, re-sow, exchange or sell their farm
produce including seeds of a registered variety in an unbranded manner. Farmers varieties are
eligible for registration anf farmers are totally exempted from payment of any fee in any
proceedings under this Act. The period of protection for field crops is 15 years and for trees
and vines is 18 yearsand for notified varities it is 15 years from the date of notification under

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Section 5 of SeedsACT,1996. Annual fee hasto be pid every year for maintaining the
registration andrenewal fee has to be paid for the extended period for registration. Farmers
can claim for compensation if the registered variety fails to provide expected performanve
under given conditions. The rights granted under this Act are exclusiveright to produce, sell,
market, distribute, import, and exportthe varities. Civil and criminal remedies are provide for
enforcement of breeder’s rightsare provisionsrelating to benefiyssharing and compulsory
licence in case registered variety is not made available to the public at reasonable price are
provided. Compensation is also provided. Compensation is also provided foe village or rural
communities if any registered variety has been developed using any varities in whose
evolution such villages or local community has contributed significantly. The procedural
details and modes of implementing this Act are provided in PVPFR Act Rules, 2003.

Sec-3:
The Central Government is empowered to establish the protection of Plant Varities and
Farmer’s Rights Authority, as a body corporate having perpetual succession and a common
seal power to acquire, hold and dispose of properties, both movable and immovable, and to
contract. It is a legal person and, thus may sue and be sued. It is headquartered at New Delhi.
The Central Government may allow setting up branches at other places if need be.

Why Protection Of Plants Is Required In India:

The Agreement on TRIPS requires WTO Memebers to introduce an effective system for
protection of plant varities. Being a member of WTO nd signatory of TRIPS, it was
mandatory for India to provide protection to plants varities either by patents or by sui generis
system or by both. India exercise the sui generis option for protection of plantsand plant
varities. The sui generis system means for effective protection of plant varities. India enacted
‘THE PROTECTION OF PLANT VARITIES AND FARMERS RIGHTS’ (PVPFR) Act on
August 9, 2001 for plant variety protection by Lok Sabha.

Objectives of PVPFR, Act 2001:

*To establish an effective system system for the production of plants varities, the rights of
farmers and plant breeders and to encourage thedevelopment of new varities of plants.

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*To recognize and protect the rights of farmers in respect of their contributions made at any
times in conserving, improving and making available plants genetic resources for the
development of new plant varities.

*To accelerate the agricultural developments in the country, protect plant breeders rights;
stimulate investment for research and development bith in public & private sectors for the
development of newplant varities.

*Fcilitate the growth of seed industry in the country which will ensure the availability of high
quality seeds and planting materials to the farmers.

General Functions Of the PVPFR Authority:

*Registrations of the new plant varities, essentially derived varities (EVD) and extant
varities.

*Developing DUS (Distinctiveness, Uniformity, Stability) test guidelines for newplant

varities.

*Cataloging facilities for new varities of plant.

*Documentation, indexing, and cataloguing of farmersvarities.

*Recognizing and rewarding farmers , particularly tribal and rural communities engaged in
conservation, improvement, preservation of plant genetic resources of economic plantsand
their wild varities.

*Maintenance of the National Register and Plant Varities.

*Maintenance of National Gene banks.

What Plant Varities are registrable in India:

Four types of Plant Varities can be registered under PVPFR Act, 2001.

*New Varities – A variety which is not public domain in India earlier that one year before the
date of filing; or outside India. In the case of treesand vines earlier than sixyear, or in any
other cases, eaarler than four years.

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*Extant Varities – A which isnotified under the Seeds Act, 1966 or a variety about which
there is common knowledge or any other varity which is in public domain is considered as an
Extant variety.

*Farmer’s Varities – 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 varities (EDV) by UPOV – A plant variety is taken to be an essentially

derived variety of another plant variety if:

(a) It is predominantly derived from that other plant variety.

(b) It retains the essentially characteristics that result from the genotype or combination of
genotypes of that variety.

(c) It does not exhibit any important feature that differentiate it from other varties.

Criteria For Protection:

A new plant variety should be protected by registration if it is novel, distinct, uniform and
stable (DUS).

1.Novel: A new variety shall be demed to be novel.If at the date of filing of application for
registration for protection, the propagating or harvested material of such variety hasnot been
sold or otherwise disposed of by orwith the consent of thr breeder, for the purposes of
exploitation of such variety (a) in India for more than one year or (b) outside India in the case
of trees or vines, earlier than 6 years or, in any other case, earlier than 4years.

2.Distinct: A new variety shall be deemed to be distinct if it isclearly distinguishable by

atleast one essential characteristics fromany 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 propogations, it issufficiently uniform in
itsessential characteristics.

4.Stable: A newvariety shall be deemed to be stable if its essential characteristics remain

unchanged after repeated propogations or, in the case of a particular cycle of propagation, at
the end of each such cycle. The requirements of stability means that a variety must remain
true to itsdescription/character even after repeated propagations.

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Rights Under This Act:

Breeder’s Right: Breeders will have exclusive rights to produce, sell, market, distribute,
import or export the protected variety.Breeder can appoint agent/licensee and many exercise
for civil remedy in case of infringement of rights.

Researcher’s Right: Researchers can use any of the registered varity under the act for
conducting experiment on research. This includes the use of a variety as an initial source of
variety for the purpose of developing another variety but repeated use needs prior oermission
of the registered breeder.

Farmers Rights: A farmer can save, use, sow, re – resow, exchange, share or sell his farm
produce inducing seed of variety protected under the PVPFR Act, 2001.

What Plant Varieties Are Covered the PVPFR Act, 2001:

As of the following 18 species can register under the Act.

*Cereals – Rice, wheat, maize, sorghum, pearl millets

*Legumes – Chickpea, mungbean, urdbean, field pea, rajmash, lentil, pigeon pea

*Fibre Crops:

Four species of cooton namely Gossypium arboretum L. and G. herbaceum 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 plant species in the pipeline are:

1. Mango ( Mangifera indica L.)

2. Indian Mustard ( Brassica juncea L.)

3. Rapeseed ( Brassica rapa L.)

4. Gobhi Sarson ( Arachis hypogaea L.)

5. Groundnut ( Arachis hypogaea)

6. Castor ( Ricinus communis L.)

7. Linseed ( Linum Usitatissimum L.)

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8. Sesame ( Sesamum indicum L.)

9. Sunflower ( Helianthus annuus L.)

10. Safflower ( Carthamus tinctorius naapus L.)

11. Soyabean ( Glycine max (L.) Merrill)

Conclusion
The protection of the rights of breeders and farmers has gained general acceptance in many
states. The states are convinced of the importance attaching to the protection of new varities
of plants and only for the development of the agricultural industry in their territory but also
for safeguarding the interests of breeders. They are conscious of the special problems arising
from the recognition and protection of the rights of breeders through patents and particularly
of the limitations that the requirements of the public interests may imposeon free exercise of
such rights. They deem it highly desirable that these problems, to which very many states
rightly attach importance should be resolved by each of them in accordance with uniform and
clearly defined principles.

The breeders right shall not extend to acts done privately and for non – commercial purposes,
acts done for experimental purposes and acts done for the purpose of breeding other varities.
Each contracting party may, with reasonable limits and subject to the safeguarding of the
legitimate interests of the breeders rights in relation to any varities in order to permit farmers
to use for propagating purposes, on their own holdings, the protected variety or a variety
covered by varities which are essentially derived from the protected variety, where the
protected variety is not itself an an essentially derived variety or varieties which are not clerly
distinguishable in accordance with art. 7 from the protected variety (Art. 15)

In a recent case of Kerela the state government and the Kerela Agricultural University
recently objected to a petition filed by a farmer from Palakkad for registering Navara, a
traditional medicinal rice variety under the Protection Of Plant Varities And Farmers Right
Act, 2001. P Indiradevi the Director of Research from Kerela Agricultural University says

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Navara has been cultivated for centuries and g=hence, it is not ethical to patent under a single
farmer’s name. The university objected to the claims as soon as they swathe petition on the
PVPFR act website. To support hisclaimsthefarmer citedan award called , Plant Genome by
PPVFRA two years ago. Indiradevi says that one of the reasonsfor him to patent the variety
could be for its commercial units.

Hence time has came when this act needs to be amended and some more effective
provisions needs to included in this act so farmers can grow and prosper well as ell as some
limitations should be added so that farmers cannot misuse the old and traditional varities of
plants and seeds for their own commercial purposes.

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