4 Factors That Determine How a Seed Company Can Benefit or Lose Out on
Protection of Plant Varieties
My tryst with the Bt Cotton controversy in the Year 2003 by way of
representing the Seed Company before Court and GEAC led to my assisting Clients
in the field of Agriculture over the last 9 years now.
I have been witness to the evolution of law in this sector, especially Protection
of Plant Varieties & Farmers’ Rights Act, 2001 (PPV&FR Act) which has
taken center stage in recent years. I attended Seed Congress at Hyderabad in
2011 and recently at Pune, which entailed meetings with PPV&FR officials,
numerous meetings with specialists in the seed companies and attempts to simplify
the maze of complicated laws/documents. I wish to share some of these with you in
this communication.
The benefit of registering plant
varieties gives EXCLUSIVE right to the Breeder or his assignee company to
produce, sell, market, distribute, import or export the registered variety for
15 years[i].
It is equivalent to a Patent in India. Indian patent laws exclude plant
varieties and thus PPV&FR is the only option for plant varieties.
If your company has bred a plant
variety and has not commercialized it for more than One year, then you can register
it as a “New Variety”, whether, inbred, hybrid or GMO[ii]. If you have commercialized your variety for
more than one year, then your choices are limited to the categories of either
“Extant Variety” or “Essentially Derived Variety”. The later is from an act of
derivation (including hybridization) where some characteristics are retained
and some characters come up from derivation. in my considered view, this
definition is vague and is a futile exercise in semantics[iii].
PPV&FR notifies the crops for
which registration is now open, see a list of these 54 crops in the end note[iv].
Extant varieties have 1423 pending
applications[v]
where their fate is ambiguous. The time limit to register your variety as
Extant variety is 3 years from the date of notification[vi].
If your variety falls into the black
box of ‘Extant Variety’, then, either the Central or State Government is deemed
to be owner of the exclusive rights to produce, sell, market, distribute,
import or export your extant varieties and the Breeder or his Assignee Company
has to establish his rights to be a part or whole owner of the above rights
before the PVP&FR Authority after registration[vii].
Let us consider a hypothetical
situation: if the Seed Company files for registration after one year of
commercialization because the crop was not notified by PVP&FR at
appropriate time or internal delays in decision to register, it can not claim registration
of it as a new variety and has to fight for its rights from the Government in
the category of “Extant Variety”. Let us say that you do not register your
variety in this narrow window of opportunity, then, the product of your
intellectual property in that variety is everybody’s property. Not a desirable
proposition because it opens a window for a potential loss to your Seed
Company?
My IPR team keeps an eye on spurious
attempts of someone trying to register variety of our Clients, and file
oppositions within the given discipline of time.
The benefit of exclusivity in
production and sale from successful registration comes at the end of a lengthy
process that encompasses: 1) Application submission, 2) Acceptance, 3)
Advertisement in Plant Variety Journal, 4) Opposition, if any, 5)
Distinctiveness, Uniformity and Stability (DUS) testing, 6) Registration and finally
Benefit sharing.
A silver lining for Essentially
Derived Variety is that DUS testing which takes 2 years in two crop seasons is not
necessary but DUS testing is necessary for New Varieties.
Delays are considerable which makes
one wonder if they mitigate the benefits. I am told that most of hybrids have a
commercial life span of about 5 years. From the fifty one entries contained in
Plant Variety Journal of January 2012, we calculated from the data of the
recent past 4 years between Submission of Application to Acceptance by
PVP&FR to be average of 563 days, a whopping One and One Half Years.
Something is terribly wrong.
Four major factors seem to be responsible
for this inordinate long delay of one and one half years even at this initial
step in registration. These are
FIRST, a complex set of instructions
of PVP&FR;
SECOND, hesitation in providing the
pedigree/ geneology;
THIRD, characteristics of the
candidate variety and
FOURTH, candidate variety’s correct
category supported by documentation.
Registrar of PVP&FR authority
has the right to reject the application[viii].
I feel that PVP&FR Authority
should develop and sign a confidentiality agreement with the applicant and
include in this confidentiality agreement the information on Pedigree/
Geneology and protection of parental lines seeds. US Patents have such a
provision to protect the investment made by patent holder. Hoping this to
happen in India is a HOPE.
Unlike many previous Indian Acts,
this Act and its rules enacted in 2003, 2006, 2009 and 2010 are both confusing
and certainly not user friendly and slanted towards public sector.
This Indian system of protection of
plant varieties is Sui generis[ix]. An example of
sui generis system is European Union, which is neither a federal nor a
state system but a unique combination of Independent Nations banded together
with certain things such as Euro and the system evolves with time. Such are our
Laws for Protection of Plant Varieties.
Have queries; feel free to contact
me at <vineetbhagat@gmail.com>; and finally
Good
Information = Good Decision
Adv. Vineet Bhagat is a practicing Lawyer in the Supreme Court of India
and is a Managing Partner of KG Bhagat & Co. in New Delhi.
[iv] http://www.plantauthority.gov.in/index.htm Accessed on 29 March 2012, 54 Crops in alphabetical order are 11) Bean- Kidney, 2) Brahmi, 3)
Brinjal, 4) Cabbage, 5) Cardamom- small Elettaria cardamomum, 6) Castor
7) Cauliflower, 8) Chickpea, 9) Coconut, 10) Cotton- Diploid Gossypium arboretum, 11) Cotton- Diploid Gossypium
herbaceum, 12) Cotton- Tetraploid Gossypium
barbadense, 13) Cotton- Tetraploid Gossypium hirsutum, 14) Crysanthemum,
15) Garlic, 16) Ginger, 17) Groundnut, 18) Isabgol, 19) Jute Corchorus
capsularis, 20) Jute Corchorus
olitorieus, 21) Lentil, 22)
Linseed, 23) Maize, 24) Mango, 25) Mint- Menthol, 26) Mungbean, 27) Mustard
Indian Brassica juncea, 28) Mustard
Rai Karan Brassica carinata,
29) Mustard Sarson Gobhi Brassica napus, 30) Mustard Rapeseed Brassica rapa, 31) Okra, 32) Onion, 33)
Pea-Field, Pearl Millet, 34) Pepper – Black, 35) Periwinkle, 36) Pigeon pea,
37) Potato, 38) Rapeseed, 38) Rice, 40) Rose Rosa spp. other than R.
damascene, 41) Rose Damask Rosa damascene, 42) Safflower, 43) Sesame 44) Sorghum, 45) Soyabean, 46)
Sugarcane, 47) Sunflower, 48) Tomato, 49) Turmeric, 50) Urdbean, 51) Wheat-
Bread, 52) Wheat- Dicoccum, 53) Wheat- Durum, 54) Wheat Other Triticum species.
[v] List of extant varieties- 1423, http://www.plantauthority.gov.in/pdf/extant.pdf accessed on 29th March 2012
[ix] sui generis noun in its own
category, in its own group, of its own character, of its own class, of its own
classification, of its own denomination, of its own designation, of its own
genre, of its own kind, of its own nature, of its own type, of its own variety,
peculiar, special, the only one of its kind, unique. Source: http://legal-dictionary.thefreedictionary.com/sui+generis accessed on 29 March 2012
