Plant breeders' rights
Encyclopedia
Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder
Plant breeding
Plant breeding is the art and science of changing the genetics of plants in order to produce desired characteristics. Plant breeding can be accomplished through many different techniques ranging from simply selecting plants with desirable characteristics for propagation, to more complex molecular...

 of a new variety
Variety (plant)
Plant variety is a legal term, following the International Union for the Protection of New Varieties of Plants Convention. Recognition of a cultivated plant as a "variety" in this particular sense provides its breeder with some legal protection, so-called plant breeders' rights, depending to some...

 of plant that give him exclusive control
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...

 over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.

With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others. In order to qualify for these exclusive rights, a variety must be new, distinct, uniform and stable. A variety is new if it has not been commercialized for more than one year in the country of protection. A variety is distinct if it differs from all other known varieties by one or more important botanical characteristics, such as height, maturity, color, etc. A variety is uniform if the plant characteristics are consistent from plant to plant within the variety. A variety is stable if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties. The breeder must also give the variety an acceptable "denomination", which becomes its generic name and must be used by anyone who markets the variety.

Typically, plant variety rights are granted by national offices, after examination. Seed is submitted to the plant variety office, who grow it for one or more seasons, to check that it is distinct, stable, and uniform. If these tests are passed, exclusive rights are granted for a period of 20 years (or 25 years, for trees and vines). Annual renewal fees are required to maintain the rights.

Breeders can bring suit to enforce their rights and can recover damages for infringement. Plant breeders' rights contain exemptions from infringement that are not recognized under patent law. Commonly, there is an exemption for farm-saved seed. Farmers may store the production in their own bins for their own use as seed, but this does not necessarily extend to brown-bag sales of seed. Further sales for propagation
Plant propagation
Plant propagation is the process of creating new plants from a variety of sources: seeds, cuttings, bulbs and other plant parts. Plant propagation can also refer to the artificial or natural dispersal of plants.-Sexual propagation :...

 purposes are not allowed without the written approval of the breeder. There is also a breeders' exemption (research exemption in the 1991 Act) that allows breeders to use protected varieties as sources of initial variation to create new varieties of plants (1978 Act), or for other experimental purposes (1991 Act). There is also a provision for compulsory licensing to assure public access to protected varieties if the national interest requires it and the breeder is unable to meet the demand.

There is tension over the relationship between patent rights and plant breeder's rights. There has been litigation in Australia, the United States, and Canada over the overlap between such rights. Each of these cases was decided on the principle that patents and plant breeders' rights were overlapping and not mutually exclusive. Thus, the exemptions from infringement of plant breeders' rights, such as the saved seed exemption, do not create corresponding exemptions from infringement of the patents covering the same plants. Likewise, acts that infringe the plant breeders' rights, such as exportation of the variety, would not necessarily infringe a patent on the variety, which only allows the patent owner to prohibit making, using or selling the patented invention.

International rights

The United States of America passed the Plant Patent Act
Plant Patent Act
The Plant Patent Act of 1930 is a United States federal law spurred by the work of Luther Burbank....

 in 1930 (US) at the urging of such notable figures as Thomas Edison and Luther Burbank's widow. Plant patents provided a special form of patent protection, which relaxed certain requirements of the utility patent law as applied to asexually reproduced varieties of plants. In 1957, the French Government held a conference in Paris concerned with the protection of new varieties. This led to the creation of the Union Internationale pour la Protection des Obtentions Végétales
International Union for the Protection of New Varieties of Plants
The International Union for the Protection of New Varieties of Plants or UPOV is an intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Francis Gurry....

 (UPOV) and adoption of the first text of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1961. The purpose of the Convention was to ensure that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles.

The Convention was revised in Geneva
Geneva
Geneva In the national languages of Switzerland the city is known as Genf , Ginevra and Genevra is the second-most-populous city in Switzerland and is the most populous city of Romandie, the French-speaking part of Switzerland...

 in 1972, 1978 and 1991. Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation. Under the 1978 Act, the minimum scope of the plant breeder's right requires that the holder's prior authorisation is necessary for the production for purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety. The 1991 Act contains more detailed provisions defining the acts concerning propagating material in relation to which the holder's authorisation is required. The breeder's authorisation is also required in relation to any of the specified acts done with harvested material of the variety, unless the breeder has had reasonable opportunity to exercise his right in relation to the propagating material, or if not doing so could constitute an "Omega Threat" situation. Under that provision, for example, a flower breeder who protects his variety in the Netherlands could block importation of cut flowers of that variety into the Netherlands from Egypt, which does not grant plant breeders' rights, because he had no opportunity to exercise any rights in Egypt. Member countries also have the option to require the breeder's authorization with respect to the specified acts as applied to products directly obtained from the harvested material (such as flour or oil from grain, or juice from fruit), unless the breeder has had reasonable opportunity to exercise his right in relation to the harvested material.

The UPOV Convention also establishes a multilateral system of national treatment, under which citizens of any member state are treated as citizens of all member states for the purpose of obtaining plant breeders rights. It also sets up a multilateral priority filing system, under which an application for protection filed in one member state establishes a filing date for applications filed in all other member states within one year of that original filing date. This allows a breeder to file in any one member country within the one-year period required to preserve the novelty of his variety, and the novelty of the variety will still be recognized when he files in other member countries within one year of his original filing date. However if the applicant does not wish to make use of priority filing he or she has four years in which to apply in all other member states, excepting the USA, for all species except tree and vine species in which case he or she has six years to make application. See article 10 1 (b) of Council Regulation EC No 2100/94 of 27 July 2004 on the website www.cpvo.eu. The trigger to start the four or six year period is not actually the date on which the first filing is made but the date on which the variety was first commercialised.

The UPOV Convention is not self-executing
Self-executing right
Self-executing rights in international human rights law are rights that are formulated in such a way that one can deduce that it was the purpose to create international laws that citizens can invoke directly in their national courts...

. Each member state must adopt legislation consistent with the requirements of the convention and submit that legislation to the UPOV Secretariat for review and approval by the UPOV Council, which consists of all the UPOV member states acting in committee. In compliance with these treaty obligations, the United Kingdom enacted the Plant Variety and Seeds Act 1964
Plant Variety and Seeds Act 1964
The Plant Variety and Seeds Act 1964 was an Act of Parliament in the United Kingdom passed to establish certain proprietary rights for the originators of new varieties of plants. It was enacted for the UK to comply with its obligations as a member of UPOV....

. Similar legislation was passed in the Netherlands, Denmark, Germany, and New Zealand. In 1970 the United States followed the lead of seventeen Western European nations and passed the Plant Variety Protection Act
Plant Variety Protection Act
The Plant Variety Protection Act of 1970 , 7 U.S.C. §§ 2321-2582, is an intellectual property statute in the United States. The PVPA gives breeders up to 25 years of exclusive control over new, distinct, uniform, and stable sexually reproduced or tuber propagated plant varieties...

 1970 (US). This legislation provided protection to developers of novel, sexually reproduced plants. However, the United States originally acceded to the UPOV Convention on the basis of the Plant Patent Act and did not bring the PVP Act into compliance with UPOV requirements until 1984 when the Commissioner of Plant Variety Protection promulgated rules to do so. Since the 1980s, the US Patent Office has granted patents on plants, including plant varieties this provides a second way of protecting plant varieties in the USA. Australia passed the Plant Variety Protection Act 1987 (Cth) and the Plant Breeders Rights Act 1994 (Cth). Australian patent law also permits the patenting of plant varieties. In total, 65 countries have signed the UPOV Convention and adopted plant breeders' rights legislation consistent with the requirements of the convention.

The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...

 (TRIPs) requires member states to provide protection for plant varieties either by patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

s or by an effective sui generis (stand alone) system, or a combination of the two. Most countries meet this requirement through UPOV Convention-compliant legislation. India has adopted a plant breeders' rights law that has been rejected by the UPOV Council as not meeting the requirements of the treaty.

Introduction to Plant Varieties and Farmers Rights

The TRIPS Agreement states that "Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof." In order to fulfill its obligations under the TRIPS Agreement, India has implemented the Protection of Plant Varieties and Farmers' Rights Act, 2001 (hereinafter known as the "Act"). This Act has been passed in order to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders, and to encourage the development of new varieties of plants. The Act helps to stimulate investment for research and development to produce new plant varieties. Such protection is also likely to facilitate the growth of the seed industry that will ensure the availability of high quality seeds and planting material to the farmers.

Registration of a plant variety gives protection only in India and confers upon the rights holder, its successor, agent, or licensee the exclusive right to produce, sell, market, distribute, import, or export the variety.

Who can Apply and What can be Registered

The application for protection under the Act can be made by any of the following persons

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 be breeder
of the variety;
Any person authorized to apply on behalf of farmers; or
Any university or publicly funded agricultural institution claiming to be breeder of the variety.

A new variety shall be registered under this Act if it conforms to the following criteria

Novelty A new variety is deemed to be novel if, at the date of filing of the application for registration for protection, the propagating and harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety for a certain period of time before the date of filing of the application. For sale or disposal of a new variety in India, this time period is earlier than one year. Outside of India, in the case of trees and vines, the time period is earlier than six years. In any other case in India, it is earlier than four years.
Distinctiveness A new variety is deemed distinct if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application.
Uniformity A new variety is deemed uniform if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics.
Stability A new variety is deemed stable if its essential characteristics remain unchanged after repeated propagation or, in case of a particular cycle of propagation, at the end of each such cycle.

Unacceptable Denominations

A new variety cannot be registered under a given name if the denomination given to such variety

Is not capable of identifying such variety;
Consists solely of figures;
Is liable to mislead or cause confusion concerning the characteristics, value identity of such variety or the identity of breeder of such variety;
Is not different from every denomination which designates a variety of the same botanical species or of a closely related species registered under the Act;
Is likely to deceive the public or cause confusion in the public regarding the identity of such variety;
Is likely to hurt the religious sentiments respectively of any class or section of the citizens of India;
Is prohibited for use as a name or emblem for any purposes mentioned in section 3 of the Emblems and Names (Protection of Improper Use) Act, 1950; or
Consists solely or partly of geographical name.

Registration Procedure

Rights holders can apply for the registration of a new variety either directly or through their agents. The Office of the Registrar, Protection of Plant Varieties and Farmers' Rights Authority is the appropriate office for filing of the application in India. The different steps that are involved in the registration process in India are as follows

Completing the application form and filing
The Applicant has to file the prescribed form with the requisite fee in the Office of the Registrar. The Applicant can make an application to the Registrar for registration of any variety of such genera and species as specified under sub-section (2) of Section 29 or which is an extant variety or which is a farmer's variety. An agent can complete and sign the application form, provided that the Applicant has issued a signed Power of Attorney appointing them as the agent. The application has to be in respect to a variety and state the denomination assigned to such variety by the Applicant. It has to be accompanied by an affidavit sworn by the Applicant that such variety does not contain any gene or gene sequence involving terminator technology and also a statement containing brief description of the variety bringing out its characteristics of novelty, distinctiveness, uniformity and stability. The application should also contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution, or organization in breeding, evolving, or developing the variety. It should also contain a declaration that the genetic material or parental material acquired for breeding, evolving, or developing the variety has been lawfully acquired. Copies of all the forms are available at Protection of Plant Varieties & Farmers' Rights Authority, India site.

The Applicant must, along with the application for registration under this Act, also make available to the Registrar such quality of seeds of a variety for registration of which such application is made so that the Registrar can conduct tests to evaluate whether seeds of such variety along with parental material conform to the standards as may be specified by regulations. The Applicant should also deposit the requisite fees for conducting such tests.
Review by the Registrar
After the application has been filed, the Registrar will accept the application absolutely or subject to certain conditions or limitations, after reviewing the application and making such inquiry as he deems fit. Should the Registrar not be satisfied with the particulars as mentioned in the application, he can either direct the Applicant to amend the application or in the alternative reject the application.
Publication and Opposition
After the Registrar accepts the application either absolutely or subject to any conditions, it will be advertised in the prescribed manner along with its photographs or drawings. Within three months of the publication of this application, any person may give notice of his opposing the application to the Registrar in the prescribed format. Any person can oppose the application on the following grounds
- The person opposing the application is entitled to the breeder's right as against the Applicant;
- The variety is not registerable under the Protection of Plant Varieties & Farmers' Rights Act, 2001 Act;
- The registration of this variety will not be in public interest; or
- The variety may have adverse effect on the environment.

After following the prescribed procedure of serving the Notice of Opposition to the Applicant, perusing the evidence as filed by both the parties and hearing both the parties, the Registrar will either allow or reject the opposition.
Registration
When an application for registration of a variety (other than an essentially derived variety) has been accepted and not opposed or opposed but the opposition has been rejected, the Registrar will issue a certificate of registration to the Applicant. A person aggrieved by the decision of the Protection of Plant Varieties and Farmers' Rights Authority or the Registrar can file an appeal before the Plant Varieties Protection Appellate Tribunal.

The Distinctiveness Uniformity and Stability test guidelines have been finalized for 12 notified crop species Black gram, Bread wheat, Chickpea, Field pea, Green gram, Kidney bean, Lentil, Maize, Pearl millet, Pigeon pea, Rice and Sorghum and the registration for these crops has started
Term of Registration
The certificate of registration issued by the Registrar is valid for eighteen years from the date of registration of the variety in the case of vine and trees, fifteen years from the date of notification of that variety (under Section 5 of the Seeds Act, 1966) by the Central Government in the case of extant varieties and for a period of fifteen years from the date of registration of the variety in other cases. However, the certificate of registration is valid for a period of nine years in the case of trees and vines and six years in the case of other crops. The Registrar may review and renew this registration for the remaining term on payment of the prescribed fee.
Researcher's Right
Though the rights holder has the exclusive right to the use of a registered variety, no provision of the Act precludes the researcher's right to the use of any variety for conducting experiments or research or the use of a variety as an initial source for creating other varieties. However, the researcher will have to seek the rights holder's authorization where the repeated use of such variety as a parental line is necessary for commercial production of a newly developed variety.
Revocation
There are certain circumstances in which the protection that has been granted to a rights holder can be revoked. These circumstances in which the same can be done are enumerated below
The grant of the certificate of registration has been based on incorrect information furnished by the rights holder;
The registered proprietor is not eligible for protection;
The rights holder has not provided the Registrar with such information and documents as are required under the Act;
The rights holder has not provided the Registrar with an alternative denomination, which could be used in case the denomination provided by the rights holder is not available;
The rights holder has not provided the necessary seeds or propagation material to the person to whom a compulsory license has been issued;
The rights holder has not complied with the provisions of the Actor the accompanying Rules;
The rights holder has not complied with the directions of the Protection of Plant Varieties and Farmers' Rights Authority; or
The grant of the certificate is not in public interest.

The Registrar also has the authority to either cancel or rectify the registration on an application made by an aggrieved person.

Compulsory License

Any person, after expiry of three years from the date of registration, can apply to the Protection of Plant Varieties and Farmers' Rights Authority for a compulsory license for undertaking production, distribution, and sale of the seed or other propagating material on the grounds that the reasonable requirements of the public for seeds or other propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price. This application should contain a statement of the nature of the compulsory license Applicant's interest and the facts upon which the application is based. The Protection of Plant Varieties and Farmers' Rights Authority in consultation with the Central Government and after hearing both the parties may pass an order for the registered proprietor to grant the license on such terms and conditions as the Protection of Plant Varieties and Farmers' Rights Authority deems fit. Furthermore, the Protection of Plant Varieties and Farmers' Rights Authority will determine the duration of the compulsory license on a case-to-case basis but in no event will the duration of the license exceed the total remaining period of the protection.

Infringement & Enforcement Remedies available under The Protection of Plant Varieties and Farmers' Rights Act, 2001

A right established under the Act is infringed by a person

Who not being the registered proprietor of the variety under the Act sells, exports, imports or produces such variety without the permission of the registered proprietor;
Who uses, sells, exports, imports or produces any other variety, giving this variety, the denomination identical with or deceptively similar to the denomination of a variety registered under the Act in such a manner so as to cause confusion in the mind of the general public in identifying the variety that has been registered.

The rights holder in case of an infringement of its rights can file a civil suit in court. This court will not be inferior to a District Court. In the suit, the rights holder may seek an injunction and either damages or a share of the profits. The order for injunction could include interlocutory order for discovery of documents, preserving of infringing variety or documents or other evidence which are related to the subject matter of the suit, and attachment of such property of the infringer that the court deems necessary to recover damages, costs, or other pecuniary remedies which may be finally awarded to the rights holder.

Expected Developments

The office of the Registrar of Plant Varieties and Farmer's Rights has drafted guidelines for the conduct of test for Distinctiveness, Uniformity and Stability for Tetraploid Cotton, Diploid Cotton, and Jute and is likely to commence accepting applications for these crops soon. Moreover the Plant Varieties Protection Appellate Tribunal is also likely to be formed soon.

Legislation and Regulation in India


The Protection of Plant Varieties and Farmers' Rights Act, 2001
The Protection of Plant Varieties and Farmers' Rights Rules, 2003

International Treaties to which India is a signatory

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
International Treaty On Plant Genetic Resources For Food And Agriculture

Plant Varieties Related Websites

Protection of Plant Varieties & Farmers' Rights Authority, India
International Union for the Protection of New Varieties of Plants (UPOV)

FAQs

What are Farmers' rights?


A farmer who has bred or developed a new variety shall be eligible to register his variety under the Protection of Plant Varieties & Farmers' Rights Act, 2001 in the same manner as a breeder of a variety. 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 eligible to register his variety for recognition and reward from the Gene Fund provided that material so selected and preserved has been used to donate genes of varieties registered under the Act. Moreover, a farmer shall also be entitled to save, use, sow, re-sow, exchange and share or sell his farm produce including seed of a variety protected under the act in the same manner as he was entitled before the coming into force of the Act provided that the farmer shall not be entitled to sell branded seed of a variety protected under the Act.
What are the characteristics that may be used for distinguishing a Variety?

The new variety should be distinct from the other varieties for at least one characteristic.
Is it necessary to submit the seed / propagating material before registration?

Yes, the breeder shall be required to deposit the seed or propagating material including parental line seeds of a registered variety to the Authority. An Applicant has to submit a fixed amount of seed sample (breeder seed) with prescribed germination percentage, physical purity and phyto-sanitary standards. The Applicant shall also submit along with the seed / propagating the seed quality test report.
Can a person apply for registration of a variety, which is already in the market?

Any variety, which is already in the market, but not for more than one year, may be eligible for registration as a new variety. Other older varieties may be eligible for registration as extant varieties.
What is the cost of registering a plant variety?

The fee structure as defined by the Authority is available at http//www.plantauthority.in/PDFile/Questionnare.pdf. (PDF)
Is there any punishment if any person falsely represents a variety as a registered variety?

If a person falsely represents a variety as a registered variety, then he may be punished by imprisonment for a term not less than six months, which can be extended up to three years or by a fine not less than INR one lakh (approximately $2,500) which may be enhanced to INR five lakhs (approximately $12,500), or both.
What species can be protected?

The Central Government has notified the following crops with their genera eligible for registration of varieties.'Bold text


S.No. Botanical Name Hindi Name Common Name
1. Oryza sativa L. Chawal Rice
2. Triticum aestivum L. Gehun Bread wheat
3. Zea mays L. Makka Maize
4. Sorghum bicolor (L.) Moench Jowar Sorghum
5. Pennisetum glaucum (L.) R. Br. Bajra Pearl millet
6. Cicer arietinum L. Chana Chickpea
7. Cajanus cajan (L.) Millsp. Arhar Pigeon pea
8. Vigna radiata (L). Wilczek Mung Green gram
9. Vigna mungo (L.) Hepper Urd Black gram
10. Lens culinaris Medik Masur Lentil
11. Pisum sativum L. Matar Field pea
12. Phaseolus vulgaris L. Rajmah Kidney bean

See also

  • Plant breeding
    Plant breeding
    Plant breeding is the art and science of changing the genetics of plants in order to produce desired characteristics. Plant breeding can be accomplished through many different techniques ranging from simply selecting plants with desirable characteristics for propagation, to more complex molecular...

  • Community Plant Variety Office
    Community Plant Variety Office
    The Community Plant Variety Office is an agency of the European Union, located in Angers, France. It was established in 1994. Its task is to administer a system of plant variety rights, also known as plant breeders' rights, a form of intellectual property right relating to plants...

     (CPVO)
  • International Union for the Protection of New Varieties of Plants
    International Union for the Protection of New Varieties of Plants
    The International Union for the Protection of New Varieties of Plants or UPOV is an intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Francis Gurry....

     (UPOV)
  • Plant Variety Protection Act
    Plant Variety Protection Act
    The Plant Variety Protection Act of 1970 , 7 U.S.C. §§ 2321-2582, is an intellectual property statute in the United States. The PVPA gives breeders up to 25 years of exclusive control over new, distinct, uniform, and stable sexually reproduced or tuber propagated plant varieties...

    (U.S.)

Papers


International organizations

http://anpsa.org.au/APOL26/jun02-2.html]]
  • "CIOPORA" International community of breeders of asexually reproduced ornamental and fruit varieties
The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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