Plant variety and Protection

History, Test, Objective and Tests of Plant Variety Protection.

1. Presentation by- Aakash Mohapatra Debadutta Swain Nikita Singh NLU Odisha, Cuttack PLANT VARIETY PROTECTION

2. NEED FOR IP PROTECTION TO PLANTS To encourage commercial plant breeders to invest the resources, labor and time needed to improve existing plant varieties. Designed to benefit Society. Encourages the development of new and beneficial plant varieties for use by farmers and consumers. Further helps in development of agriculture, and forestry.

3. CREATION OF NEW PLANT VARIETIES Traditional Breeding Method Employs processes that occur in nature, such as sexual and asexual reproduction Resultant plant emphasizes on certain characteristics. These are not technically ‘new’ Through Genetic Engineering Process does not occur in nature. Insertion of the genetic material into a particular plant’s genome which need not to be present in the original species or, Altogether creation of new genetic material, the expression of which leads to new plant characteristics.

4. RECOGNISED IP PROTECTIONS Patent United States started this in 1930 by Plant Patent Act. (PPA) Provides Plant Patent and Utility Patent. EU and Australia also grant Patent. Plant Breeder’s Right (PBR) Introduced by UPOV Adopted by majority of developing countries.

5. DIFFERENCE PBR Purpose is to protect the developer of the unique combination of plant germ- plasm forming the variety Exclusive right over the propagating material of protected varieties Do not cover technical processes for the production of those varieties Scope of protection is less PATENT Purpose of the patent is to protect the developer of the genetic element. Available for both products and processes. Scope of protection is more

6. PLANT BREEDER’S RIGHT Developed by Union for the Protection of New Varieties of Plants (UPOV). First introduced in 1961 and amended in 1972, 1978 and 1991. Currently UPOV 1978 (closed for membership) and UPOV 1991 in force. UPOV 1978 does not extend Breeder’s Right to materials harvested from plant variety while 1991 gives breeders some control over harvest of protected plant. Terms of Protection- 1978- minimum of 15 years (Vines- 18 years). 1991- minimum of 20 years (Vines- 25 years).

7. PLANT BREEDER’S RIGHT PBR confers the right to  exclude  others from: producing or reproducing, propagating, offering for sale, selling or other marketing, exporting, importing or stocking for any of the above purposes the protected variety.

8. CRITERIA- UPOV, 1978 New {Art.6(1)b} - If the variety has not been offered for sale or marketing for longer than one year in the territory of state or abroad for longer than six years in the case of vines, trees etc or for four years in all other trees. Distinct {Art.6(1)a} - The variety has to be distinguished by one or more important characteristics from any other existing variety Homogenous/Uniform {Art.6(1)c} - If a variety in its particular sexual reproduction or vegetative propagation feature is sufficiently uniform then it will be considered homogeneous Stable {Art.6(1)d} - If essential characteristics are maintained after repeated reproduction and propagation then it will be considered stable.

9. EXCEPTIONS TO PBR IN UPOV Farmer’s Privilege Enables farmers to use the seeds and other propagating material of protected varieties for non commercial purpose without breeder’s prior authorization. Breeder’s Exemption Other breeders have right to create new varieties using the protected varieties

10. TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS Came into effect on 1 st January 1995 Annexed to Marrakesh Agreement. (Annex-1c) The first and only IPR treaty that seeks to establish universal, minimum standards of protection across the major fields of intellectual property, In addition to Plant Protection it deals with Patents, copyrights, trademarks, industrial designs, integrated circuits and trade secrets. 

11. WHY PLANT VARIETY WAS INCLUDED IN TRIPS? Earlier Plant Variety was governed by UPOV. It did not have International Character as most developing nations were not the Party to it. WTO has a proper Enforcement Mechanism which UPOV lacked. The purpose of the UPOV was diluted in 1991 as it made strict regulation and rules, slowly progressing towards patenting, defeating the purpose of earlier UPOV’s

12. Art. 27 (3) (b) OF TRIPS TRIPS Article 27 (3) (b) first provides for exclusion of Plants from Patentability. However it further states that “Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or any combination there of.” The reason behind such a construction of the provision was the conflict of opinions between US and EU

13. METHODS OF PROTECTION Patent – The TRIPS requires that for a plant variety to be protected under patent requires passing three criteria – Novelty, Inventive step and Industrial Application. Effective Sui-Generis system – TRIPS has not defined this term and it essentially means that the complying countries are at their own and it gives them the freedom to implement and adopt national legislation suiting their local needs. Combination – This means that the country can a legislation which provides both Patent and Plant breeder rights.

14. EFFECTIVE SUI-GENERIS Not defined in TRIPS There is a wide conflict regarding the interpretation of this term. The developed countries believe that the phrase refers to UPOV. The developed countries support UPOV because it gives them monopoly which is more suited in the industrial development. The Developing Nations interpret the phrase Sui-Generis as enabling them to frame and enforce local legislation which best suits their domestic interest. Majority of the Developing Nations have adopted national legislations different to UPOV to comply with TRIPS

15. COMBINATION It means providing both Patent and an effective sui-generis system by a single Act. No country has adopted this option. Though some countries provide double protection. eg . EU and US

16. APPROACH OF COUNTRIES TOWARDS TRIPS United States After TRIPS it adopted Plant Variety Protection Act which gives the plant breeder right. European Union EU directive Community Plant Variety Rights provides for plant breeder right. Africa Interestingly adopted a method of protection in lines of UPOV being a developing country.

17. PROTECTION OF PLANT VARIETY AND FARMERS RIGHTS ACT, 2001 India being a member of WTO was obliged to introduce plant protection in lines of TRIPS Adopted a ‘ Sui-Generis ’ approach. Came into effect in 2001 (Rules- 2003,2005, 2009) Was drafted even before TRIPS, in 1993-1994 Rationale behind the PPV&FR Act- UPOV 1991 TRIPS Liberalization of Seed Industry in 1998 Liberalization of Economy in 1991

18. CRITERIA FOR REGISTRATION Section 15- 4 step test, different from TRIPS Novelty Distinctiveness Uniformity Stability

19. CRITERIA NOVELTY {15(3a)} - A plant variety is novel, if at the date of filing registration the propagating or harvested material has not been sold or disposed for the purpose of exploitation , with the consent of the plant breeder or his successor, In India earlier than 1 year before filing Outside of India earlier than- 6 years- trees and vines 4 years- in other cases Novelty is not affected if new variety is put in trial or has passed to common knowledge other than through selling or disposing.

20. Distinctiveness {15(3b)} - At least one distinguishable “ essential characteristic ” from varieties which are in common knowledge in any country. Essential Characteristics {2(h)} - Heritable traits of a plant variety which are determined by the expression of one or more genes of other heritable determinants that contribute to the principle features, performance or value of the plant variety Uniformity {15(3c)} - If the essential characteristics are sufficiently uniform, though with some variation, the new variety can be considered uniform. Stability {15(3d)} - If there is no change in essential characteristic after cycle or repeated propagations then that variety can be considered stable.

21. RIGHTS GRANTED Farmer’s Rights {39} - save, use resow exchange or sell his farm produce even if the seeds are protected, compensation for failure of expected performance of registered variety, protection against innocent infringement and exemption from payment of DUS testing fee. Researcher’s Rights {30} - Use of registered variety for conducting research and using variety to create other varieties. Breeder Right – Produce, sell, market, distribute, import/export seeds of protected variety, breeder authorization for commercial exploitation.

22. PROTECTED VARIETIES New Varieties (NDUS) Essentially Derived Varieties {2( i )} - Essentially derived varieties are those which are predominantly derived from new varieties but distinguishable from them. Extant Varieties {2(j)} - Varieties notified under Seeds Act, famers’ variety, variety which has been in common knowledge or in public domain. (DUS) Farmer Varieties {2(l)} - Crops traditionally cultivated and evolved by farmers or related to variety which has been in common knowledge of the farmers. ( DUS- Relaxed)

23. EXCLUSION OF CERTAIN VARIETIES (S. 29) Exploitation of which are harmful to ecosytem (human, animal, plants & environment). Varieties produced using Genetic use restriction technology & terminator technology. Genus/ species not notified in official gazette at the time of filing application.

24. Terms of Protection ( S . 24 ) Trees and Vines- 9 Years. Crops- 6 Years Can be renewed- Trees and Vines- 18 Years Extant Variety- 15 years Other cases- 15 years

25. REGISTRATION Who can apply 1) Breeder- successor, assignee 2) Farmer- group or community 3) University or publicly funded institutions A maximum of 3 application per person Regulatory Authority -The Protection Of Plant Varieties And Farmers Rights Act Authority .

26. Registration Process Submission of Application. Initial Scrutiny. Receipt of acknowledgement. Acceptance. Advertisement in Gazette of India. Invitation of objection (within 3 months). Counter Statement (within 2 months). Hearing Conduct DUS ( 2 years at 2 location). Certificate issuance if successful. Copy sent to breeder of rregistered variety. Benefit sharing in prescribed manner.

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