2/24/20141 PROTECTION OF PLANT VARIETEIES AND FARMERS RIGHTS ACT, April 2010 WIPO Malathi Lakshmikumaran Lakshmikumaran & Sridharan

Why Protection for plants is required in India? Compliance with TRIPS Compliance with TRIPS Some form of IPR protection is necessary for plants Some form of IPR protection is necessary for plants Can be in the form of patent protection; or Can be in the form of patent protection; or By a sui generis system; or By a sui generis system; or By a combination of both By a combination of both

Crops Covered under the PPVFRA Cereals : Rice, wheat, maize, sorghum, pearl millet Cereals : Rice, wheat, maize, sorghum, pearl millet Legumes: Chickpea, mungbean, urdbean, field pea, rajmash, lentil, pigeon pea Legumes: Chickpea, mungbean, urdbean, field pea, rajmash, lentil, pigeon pea Fibre Crops : Cotton and Jute Fibre Crops : Cotton and Jute Third phase Third phase Sugarcane, ginger, turmeric Sugarcane, ginger, turmeric Fourth Phase Fourth Phase Oilseeds : Rapeseeds mustard, groundnut, soybean, sunflower, safflower, castor, sesame, linseed Oilseeds : Rapeseeds mustard, groundnut, soybean, sunflower, safflower, castor, sesame, linseed Fodder Varieties : Lucerne, berseem Fodder Varieties : Lucerne, berseem Vegetables : Tomato, brinjal, okra, cauliflower, cabbage, potato, onion, garlic Vegetables : Tomato, brinjal, okra, cauliflower, cabbage, potato, onion, garlic Flowers : Rose and Chrysanthemum Flowers : Rose and Chrysanthemum

Varieties that can be registered Novel Variety Novel Variety Extant Variety Extant Variety Farmers Variety Farmers Variety Essentially derived variety Essentially derived variety

Varieties that are Registrable DISTINCT UNIFORM STABLE ATLEAST ONE ESSENTIAL CHARACTERISTIC SUFFICIENTLY UNIFORM SUSCEPTIBLE TO CHANGE AFTER REPEATED PROPAGATION Criteria NOVELVARIETY IS NEW

NOVELTY OF VARIETY IS PROTECTED-Sec. 15(3) a 1.EXPLOITATION BY SALE OR DISPOSAL 2.USED FOR TRIAL NOT NOVELTY DESTROYING < 1 YEAR IN INDIA OVERSEAS FOR TREES & VINES < 6 YRS OTHERS < 4 YRS

Extant Variety ( Section 2j ) A variety in public domain is eligible for protection Notified under section 5 of Seeds act 1966 Farmers variety A variety about which there is common knowledge and includes the propagating material from extant variety Registration within Three Years Which species ? Not Clear – Can extant variety get protection – Term of protection

Essentially Derived Variety (Section 2i) Is a variety which is essentially derived from an initial variety Retains expression of the essential characteristics Clearly distinguishable from the initial variety Conforms to the initial variety in the expression of essential characteristics except variation which result in the process of derivation Not clearly defined in the Act DUS testing guidelines For EDV not developed yet.

People who can apply for protection of a Variety any person claiming to be the breeder of the variety any person claiming to be the breeder of the variety any successor of the breeder of the variety any successor of the breeder of the variety any person being the assignee of the breeder of the variety any person being the assignee of the breeder of the variety any farmer or group of farmers or community of farmers claiming to be the breeder of the variety any farmer or group of farmers or community of farmers claiming to be the breeder of the variety any person authorised in the prescribed manner by the persons mentioned above any person authorised in the prescribed manner by the persons mentioned above any university or publicly funded agricultural institution claiming to be the breeder of the variety any university or publicly funded agricultural institution claiming to be the breeder of the variety

PVP Conditions Denomination Denomination Descriptors of variety Descriptors of variety Novelty Novelty DUS Characters DUS Characters Parental lines Parental lines Terminator technology Terminator technology

Rights of the Owner of the Variety (Sec. 28) The owner of the protected variety has the right to Produce the protected varietyProduce the protected variety Sell the varietySell the variety Market the varietyMarket the variety Distribute the varietyDistribute the variety Import the varietyImport the variety Export the varietyExport the variety In case of the variety being an EDV where the EDV derived from a protected variety then an authorisation required from the breeder of the initial variety

Infringement (Sec. 64) Any one of the following done by a person other than the owner or without his authorisation / license Sells, exports, imports or exports a registered varietySells, exports, imports or exports a registered variety Sells, exports, imports or exports a variety deceptively similar to the registered varietySells, exports, imports or exports a variety deceptively similar to the registered variety

Acts not considered to be infringement Researcher Rights (Sec 30) : Use of variety for research and experimental purposes allowed Use of variety for research and experimental purposes allowed Use of variety as an initial variety for the creation of a new variety allowed Use of variety as an initial variety for the creation of a new variety allowed Repeated use of the variety for commercial production of a new variety is not allowed without the authorization of the breeder of the registered variety. Repeated use of the variety for commercial production of a new variety is not allowed without the authorization of the breeder of the registered variety.

Relief in Case of Infringement (Sec. 66) An injunction awarded against the infringer An injunction awarded against the infringer The plaintiff has the option to claim for damages or a share of the profits of the infringer The plaintiff has the option to claim for damages or a share of the profits of the infringer

Other Protection Provided Other Protection Provided The PPVFRA provides a civil as well as a criminal liability for other acts which violates the rights of the owner of the protected variety Penalty for selling varieties to which false denomination is applied (Sec. 71) – punishable offence with heavy fine Penalty for selling varieties to which false denomination is applied (Sec. 71) – punishable offence with heavy fine Penalty for falsely representing a variety as registered (Sec 72) – punishable offence Penalty for falsely representing a variety as registered (Sec 72) – punishable offence Penalty for subsequent offence (Sec 73) Penalty for subsequent offence (Sec 73)

Duty of the Breeder of a Protected Variety Duty of the Breeder of a Protected Variety Shall in all circumstances provide correctly the expected yield/performance under a given set of conditions Shall in all circumstances provide correctly the expected yield/performance under a given set of conditions Shall ensure that the denomination of the protected variety conforms with the description of the protected variety Shall ensure that the denomination of the protected variety conforms with the description of the protected variety

Who is a Farmer ? A farmer is defined in the PPVFRA as : Section 2(k) "farmer" means any person who-- i. cultivates crops by cultivating the land himself; or ii. cultivates crops by directly supervising the cultivation of land through any other person; or iii. conserves and preserves, severally or jointly'. with any person any wild species or traditional varieties, or adds value to such wild species or traditional varieties through selection and identification of their useful properties

Farmers Rights (Sec 39) Has the same privilege with respect to a breeder of a variety Has the same privilege with respect to a breeder of a variety A farmers variety shall be entitled for registration if a declaration has been made that the initial variety has been lawfully obtained A farmers variety shall be entitled for registration if a declaration has been made that the initial variety has been lawfully obtained Can save, use, sow, resow, exchange, share or sell his farm produce including seed of a protected variety Can save, use, sow, resow, exchange, share or sell his farm produce including seed of a protected variety The farmer as such cannot sell branded seeds of a protected variety The farmer as such cannot sell branded seeds of a protected variety A farmer can claim damages if the seed of the protected variety does not give the yield as stated by the breeder. A farmer can claim damages if the seed of the protected variety does not give the yield as stated by the breeder.

Protection Against Unintentional Use (Sec 42) The act provides farmers against the unintentional and accidental use of the protected variety No infringement if the farmer was unaware of the existence of the rights No infringement if the farmer was unaware of the existence of the rights A relief granted as damages for infringement shall not be granted if the farmer proves before court that at that time he was unaware of the existence of such right A relief granted as damages for infringement shall not be granted if the farmer proves before court that at that time he was unaware of the existence of such right

Farmers Are Exempted From Fees (Sec. 44) Farmer or a group of farmers not liable to pay Fees in any proceedings Fees in any proceedings Including any fees payable for inspection Including any fees payable for inspection For obtaining any copy of a document or a copy of a decision For obtaining any copy of a document or a copy of a decision

A Compulsory Licensing System Section 47 If seeds of a protected variety are not available after 3 yrs of registration in adequate quantity, and at reasonable price, the Authority may grant license to a third party to (a) undertake production, and (b) distribution and sale of the seed on reasonable royalty

Benefit Sharing- National Gene Fund Authority will invite claims for benefit sharing from persons or organizations Authority will invite claims for benefit sharing from persons or organizations Benefit sharing only for Indian Citizens and Organizations Benefit sharing only for Indian Citizens and Organizations Breeder can oppose the claims Breeder can oppose the claims Authority shall decide the quantum Authority shall decide the quantum The amount of benefit sharing shall be deposited with the National Gene Fund The amount of benefit sharing shall be deposited with the National Gene Fund

THANK YOU!