Protection of Plant Varieties: formula sheet

Key formulas

Variety (section 2(za))

Variety = plant grouping (not micro-organism) in lowest-rank botanical taxon + defined by genotype characteristics + distinguishable by at least one characteristic + unit unchanged on propagation

All three limbs must be met. The definition also includes propagating material, extant, transgenic, farmers' and essentially derived varieties.

Essentially derived variety (section 2(i))

EDV = predominantly derived from initial variety + clearly distinguishable from it + conforms to it in essential characteristics (except differences from derivation)

All three conditions are cumulative. Registration of an EDV also needs the Authority to be satisfied by testing that it is derived from the initial variety (section 23).

Extant variety (section 2(j))

Extant variety = notified under section 5 of Seeds Act, 1966 OR farmers' variety OR common knowledge OR other public domain variety

These are alternatives, not cumulative. The variety must be available in India.

Farmer (section 2(k))

Farmer = cultivates land himself OR directly supervises cultivation through another OR conserves/preserves/adds value to wild or traditional varieties

Three alternative limbs. A conserver who does not cultivate can still be a farmer.

Farmers' variety (section 2(l))

Farmers' variety = traditionally cultivated and evolved by farmers in their fields OR wild relative or land race about which farmers have common knowledge

Two alternatives.

Duty of the Authority (section 8(1))

Promote development of new plant varieties + protect rights of farmers and breeders

This is the core statement of objectives in the Act.

Farmers' variety and EDV authorisation (section 43)

Breeder of farmers' variety cannot authorise an EDV (section 28(2)) except with consent of the farmers, group or community who contributed to its preservation or development

Applies where the EDV is derived from a farmers' variety.

General duty of the Authority

Section 8(1): promote development of new plant varieties + protect rights of farmers and breeders

Both limbs must appear in your answer.

Registry and head office

Section 12(1) and (2): Registry set up by Central Government; head office sits in the Authority's head office

Branch offices are set up where the Authority thinks fit.

Registrar-General and Registrars

Section 12(3): Authority appoints Registrar-General. Section 12(4): Registrars work under the Registrar-General's superintendence and direction

The appointing body is the Authority, not the Central Government.

Branch office limits

Section 12(6): territorial limits defined by Authority by notification in the Official Gazette

Section 12(7): the Registry has a seal.

Authority Fund credits

Section 61(1): grants and loans (section 60) + fees of Authority and Registrars (except annual benefit/royalty fee under section 35(1)) + other sums decided by Central Government

The account is named the Protection of Plant Varieties Authority Account.

Uses of the Fund

Section 61(2): salaries, allowances and remuneration + other expenses for the Authority's functions and the Act's purposes

Members get allowances, if any; the Chairperson, officers and employees get salaries, allowances and remuneration.

Commencement

Sections 2 to 13 and 95 to 97 from 11 November 2005; section 1 and sections 14 to 94 from 19 October 2006

Different provisions were brought in on different dates under section 1(3).

Registrability of a new variety (s.15(1))

Registrable = Novel + Distinct + Uniform + Stable

All four criteria must be met for a new variety. The denomination must also pass s.15(4).

Novelty periods (s.15(3)(a))

India: not sold earlier than 1 year before filing. Abroad: trees or vines 6 years; other plants 4 years

Counted back from the date of filing. Sale or disposal by or with the breeder's consent for exploitation is what matters; trials do not count.

Extant variety (s.15(2))

Extant variety = DUS only (as per regulations), within a specified period

No novelty test. Extant varieties include those notified under the Seeds Act, 1966, farmers' varieties, common knowledge and public domain varieties.

Distinctness (s.15(3)(b))

Clearly distinguishable by at least one essential characteristic from any variety of common knowledge in any country

A variety applied for in a convention country becomes common knowledge from that application date if it leads to a grant or entry in the official register.

Denomination bars (s.15(4))

No registration if denomination: cannot identify the variety; is only figures; misleads or confuses; is not different from existing denominations; deceives the public; hurts religious sentiments; is barred under the Emblems and Names Act, 1950; or is wholly or partly a geographical name

Proviso: a geographical name may be registered if the Registrar considers its use an honest use.

Exclusions (s.29)

s.29(1) public order, morality, life and health, environment; s.29(2) only notified genera or species; s.29(3) harmful technology including GURT and terminator technology; s.29(5) deleted genera or species get no protection

s.29(4): the Central Government cannot delete a genus or species from the notified list except in the public interest.

National Register (s.13)

Register at head office of Registry; managed by the Authority; copy at each branch office

Entries: names of registered varieties, breeders' names and addresses, breeders' rights, denomination particulars, seed or propagating material with salient features, and other prescribed matters.

Criteria for a new variety (s.15(1))

Novelty + Distinctiveness + Uniformity + Stability

All four are needed for a new variety. An extant variety needs distinctiveness, uniformity and stability as specified in the regulations.

Novelty (s.15(3)(a))

Not sold or disposed of with breeder's consent for exploitation: in India, earlier than 1 year; outside India, earlier than 6 years (trees or vines) or 4 years (other crops), before the filing date

A trial of an unsold variety does not defeat protection. Common knowledge arising otherwise does not defeat novelty.

Registration trigger (s.24(1))

Accepted application + (no opposition and notice time expired, OR opposition rejected) → Registrar registers

Not applicable to essentially derived varieties, which the section excludes.

Initial validity (s.24(6))

Trees and vines: 9 years; other crops: 6 years

Renewable for the remaining period on payment of fees.

Maximum total protection (s.24(6))

Trees and vines: 18 years from registration; extant variety: 15 years from Seeds Act notification; others: 15 years from registration

Pick the cap that matches the category in the question.

Abandonment (s.24(3))

Registration not completed within 12 months of application due to applicant's default → Registrar may treat as abandoned after notice

Applicant gets the time given in the notice to complete.

Surrender (s.33)

Notice by breeder → Registrar notifies agents and licensees → they may oppose → hearing → order revoking certificate

Registrar must be satisfied that surrender is proper.

Benefit sharing claim (s. 26)

Authority publishes certificate contents → invites claims → claimant files → breeder may oppose → hearing → order stating the amount

Claimant must be an Indian citizen (every member, for a group) or a firm or organisation formed or established in India.

Factors for the benefit sharing amount (s. 26(5))

(a) extent and nature of use of claimant's genetic material in developing the variety; (b) commercial utility and market demand of the variety

The order must explicitly state the amount, if any.

Payment and recovery of benefit share

Breeder deposits the amount in the National Gene Fund (s. 26(6)); recoverable as arrears of land revenue by the District Magistrate (s. 26(7))

Recovery follows a reference by the Authority in the prescribed manner.

Compulsory licence application (s. 47)

Application only after 3 years from the date of the registration certificate, by any person interested

Grounds: public's reasonable requirements not satisfied, or seed not available at a reasonable price.

Decision on compulsory licence (s. 47(3))

Consult Central Government + opposition by breeder + hearing → Authority may order breeder to grant licence on terms it thinks fit

The licensee's title is registered by the Registrar on payment of fees.

Terms of licence (s. 51)

Reasonable compensation to the breeder + licensee with adequate means to supply seed timely at reasonable market price

Licence cannot authorise import where import would infringe the breeder's rights.

Duration (s. 50)

Duration set case by case; never beyond the remaining period of protection of the variety

Reproductive material is made available from the National Gene Bank or another centre.

Modification and revocation (ss. 52, 53)

Revoke: breach of terms or continuation not appropriate in public interest, after hearing the licensee. Modify: in public interest, after hearing the breeder

Authority can act on its own motion or on application.

Researcher's rights (s. 30)

Free use for experiment or research, and as initial source to create other varieties; breeder's authorisation needed if repeated use as a parental line is necessary for commercial production of the new variety

The proviso is the usual examination point.

Appeal (s. 56)

Appeal to the High Court within the prescribed period against orders on registration, agents or licensees, benefit sharing, compulsory licence revocation or modification, and compensation

Made by written petition in the prescribed form.

Farmers' rights under section 39(1)

Breeder-like registration + farmers' variety registration + reward for conservation + farmers' privilege

Four distinct rights in clauses (i) to (iv). Learn them in order.

Farmers' privilege

Save, use, sow, resow, exchange, share or sell farm produce including seed, except branded seed of a protected variety

Section 39(1)(iv). Branded seed means packaged or containered seed labelled as being of a protected variety.

Reward for conservation

Recognition and reward from the Gene Fund, provided the selected and preserved material has been used as donors of genes in registrable varieties

Section 39(1)(iii) proviso. The donor-of-genes condition is essential.

Compensation for non-performance

Breeder discloses expected performance; failure leads to claim before the Authority; Authority hears and may direct compensation

Section 39(2). Claimants: a farmer, group of farmers or farmers' organisation.

Community claim process

Claim at notified centre → verification and report → Authority notice and hearing → compensation → breeder deposits in Gene Fund

Section 41. Compensation is subject to the limit notified by the Central Government and is recoverable as an arrear of land revenue.

National Gene Fund (section 45)

Credits: benefit sharing, annual royalty fee under s.35(1), compensation under s.41(4), contributions. Uses: benefit sharing, s.41(3) compensation, conservation support, benefit-sharing schemes

Application is in the prescribed manner.

Authority Fund (section 61)

Credits: Central grants and loans, fees (except the s.35(1) annual royalty fee), other sums. Uses: salaries and allowances, other expenses of the Authority

Called the Protection of Plant Varieties Authority Account.

Court for infringement suits (s. 65)

Suit for infringement or any right in a registered variety → not below a District Court

Jurisdiction lies with the District Court within whose local limits the cause of action arises.

Relief in infringement suit (s. 66)

Injunction + (damages OR share of profits, at plaintiff's option)

Injunction may include ex parte or interlocutory orders: discovery of documents, preserving infringing variety or evidence, attaching defendant's property to secure damages and costs.

Penalty for applying false denomination (s. 70)

Imprisonment: 3 months to 2 years, or fine: ₹50,000 to ₹5,00,000, or both

Escape if the accused proves he acted without intent to defraud.

Penalty for selling falsely denominated variety (s. 71)

Imprisonment: 6 months to 2 years, or fine: ₹50,000 to ₹5,00,000, or both

Unless the accused proves one of the three defences: reasonable precautions and no reason to suspect; gave all information on his source on demand; or otherwise acted innocently.

False application of denomination (s. 69)

Without breeder's assent: apply identical or deceptively similar denomination, or use such a package for another variety

Burden of proving the breeder's assent lies on the accused.

Innocent farmer (s. 42)

Farmer unaware of the right → no infringement, no relief, no cognizance of offence

The farmer must prove before the court that he was unaware of the right at the time.

Quick revision

• The Act extends to the whole of India and came into force in parts, in 2005 and 2006.
• The Authority must encourage new plant varieties and protect the rights of farmers and breeders.
• A breeder can be a person, a group, a farmer, a group of farmers or an institution that bred, evolved or developed a variety.
• A variety is a plant grouping (not a micro-organism) in the lowest known botanical taxon that is definable, distinguishable and stable on propagation.
• An extant variety is one available in India that is notified under the Seeds Act, 1966, a farmers' variety, commonly known, or otherwise in the public domain.
• An essentially derived variety is predominantly derived, clearly distinguishable, and conforms to the initial variety in essential characteristics.
• The National Register of Plant Varieties is kept at the head office of the Registry under the Authority's control and management.
• The Authority appoints the Registrar-General and the Registrars.
• A farmer may save, use, sow, resow, exchange, share or sell farm produce including seed of a protected variety, but not branded seed.
• If propagating material fails the performance disclosed by the breeder, the farmer can claim compensation before the Authority.
• A farmer conserving land races and wild relatives can get recognition and reward from the Gene Fund.
• A compulsory licence cannot authorise import that would infringe the breeder's rights.

Common mistakes

• Saying India protects plant varieties under the Patents Act because of TRIPS. Fix: Article 27(3)(b) allows patents, an effective sui generis system, or both. India uses a sui generis law, the PPVFR Act, 2001.
• Treating breeder and farmer as separate categories that never overlap. Fix: The breeder definition expressly includes a farmer or group of farmers. A farmer who develops a new variety is entitled to registration like any breeder (section 39(1)(i)).
• Saying the Authority protects only breeders. Fix: Quote section 8(1) fully: encourage new varieties and protect the rights of farmers and breeders.
• Saying the Central Government appoints the Registrar-General. Fix: Under section 12(3) the Authority appoints the Registrar-General, and under section 12(4) it appoints Registrars.
• Applying the novelty test to extant varieties. Fix: Link extant variety to DUS only, under regulations, within a specified period.
• Mixing up the novelty periods, for example saying four years in India. Fix: Remember: India is one year; abroad is four years, six for trees and vines.
• Stating the total protection for trees and vines as 15 years, or for other crops as 18 years. Fix: Link them: trees and vines have the longer life, so 9 initial and 18 total. Other crops are 6 initial and 15 total.
• Counting the 15-year cap for an extant variety from registration. Fix: For an extant variety the 15 years run from the date of notification under section 5 of the Seeds Act, 1966.
• Allowing a compulsory licence application within three years of registration. Fix: Under the PPVFR Act, applications come only after three years from the date of issue of the registration certificate (section 47).
• Saying a foreign firm can claim benefit sharing. Fix: Only Indian citizens (all members of a group) or firms and organisations formed or established in India can claim.

Exam tips

• Open any background answer with TRIPS Article 27(3)(b) and the phrase sui generis. Examiners look for it.
• For definitions, write the section number and the limbs, and state whether they are AND or OR.
• In case-based questions, classify each person and each variety separately: farmer, breeder, extant, farmers' variety, EDV.
• Always check for the section 43 trigger when a fact pattern mixes a traditional variety with a company's derived variety.
• Keep the section 8(1) objective as a one-line quote you can reuse in any answer on the Act's purpose.
• Learn section 8(1) word for word and use it as the opening line of any functions answer.
• Pair each section 8(2) measure with a short fact trigger, such as seed shortage for compulsory licensing or farmers' varieties for cataloguing.
• Cite section 12 for the Registry and Registrar-General, and section 61 for the Authority Account. Cite only numbers you are sure of.