There are a handful law firms in India specializing in matters related to Registration of Plant Varieties. Infini Juridique is one of the leading Law Firms handling plant varieties registration and opposition matters in India. It is also the first Law Firm in India to file various Oppositions, and a Writ Petition challenging the legality of Section 24 (5) of the Protection of Plant Varieties & Farmers' Right Act which empowers the Registrar of Plant Varieties to pass an order for protection from the date of filing of application and until the plant variety is registered.
The Protection of Plant Varieties and Farmers’ Right Act 2001 (PPV&FR Act) has been enacted in India. The Rules came into effect from December 7, 2006. The purpose of the Act is to provide for an establishment of an effective system for protection of plant varieties, recognize the rights of farmers and plant breeders and to encourage the development of new varieties of plants.
The Indian Act is unique as it not only provides for protection of breeders but also takes care of the farmers’ rights as well as the Rights of the Communities, Researcher’s Rights, Benefit Sharing and Compulsory Licensing.
The PPV & FR Act also provides for constitution of a GENE Fund to be named as the National Gene Fund where any money royalty payable for benefit sharing and annual fee collected shall be deposited.
According to the Protection of Plant Varieties and Farmers’ Rights Act, 2001 an application for registration of can be filed by (a) any person claiming to be the breeder of the variety; or (b) any successor of the breeder; or (c) any person being the assignee of the breeder of the variety in respect of the right to make such application; or (d) any farmer or group of farmers or community of farmers claiming to be the breeder of the variety; (e) any person authorized in the prescribed manner (f) any university or publicly funded agricultural institution claiming to be the breeder of the variety.
WHAT PLANT OR PLANT VARIETY CAN BE REGISTERED UNDER THE ACT
The Act provides for registration of Plant Varieties which have been specified under Section 14, Section 15 of the Act, however the exclusions are contained under Section 14 (4) for New Variety, Section 29 of the Act.
Application for registration under Plant Variety can be filed under Section 14 of the Act by any of the above persons individually or collectively. An application may be filed for varieties which include:
- Such genera or species other than Extant Variety or Farmers variety, which the Central Government may notify in the Official Gazette [Section 29(2)]
- Extant Variety; or
- Farmers Variety
Section 15 provides for registration of New Variety, which shall be registered under the Act if it conforms to the criteria of Novelty, Distinctiveness, Uniformity, and Stability Test (NDUS Test).
WHO CAN MAKE AN APPLICATION
An application for registration of plant variety including new variety and Extant Variety or Farmer’s Variety under Section 14 can be filed by :
- any person claiming to be the breeder of the variety; or
- any successor of the breeder of the variety; or
- any person being the assignee of the breeder of the variety in respect of the rights to make such application; or
- any farmers or group of farmers or community of farmers claiming to be the breeder of the variety; or
- any person authorized in the prescribed manner by a person specified under clauses (a) to (vi) to make application on his behalf; or
- any university or publicly funded agricultural institution claiming to be the breeder of the variety.
An application may be made by any of the persons referred above individually or jointly with any other person.
The Application under Section 14 must be filed in accordance with the provisions of the Act and must assign a single and distinct denomination to a variety with respect to which the person is seeking registration under the Act. Denomination given to a variety must be capable of distinguishing or is capable of identifying the variety from other variety. It should not consist solely of figures or must not mislead or cause confusion concerning the characteristic, value identity of such variety of the identity of such breeder. The denomination must be different from a variety of the same botanical species or of a closely related species registered under this Act. The denomination given to a variety must not be such as it may lead to deceiving the public or cause confusion in the public regarding the identity of such variety. The denomination given to a variety must be such as not to hurt the religious sentiments of any class or section of the citizens of India or is prohibited for use as a name or emblem and names or is comprised solely or partly of geographical names.
VARIETIES THAT CANNOT BE REGISTERED
Section 15 (4) of the Act deals with New Varieties which cannot be registered under the Act. This provision is more like Section 3 of the Patent Act which is in the nature of prohibitory provision. Thus any application for New Variety has to withstand the tests laid down under section 15 (4) of the Act in order to be registered, subject to other provisions of the Act and the mandatory test under Section 19 of the Act.
A New Variety shall not be registered if the denomination given to the variety is not capable of indentifying such variety; or
A New Variety shall not be registered under the provisions of the Act if the denomination given to such variety is not capable of identifying such variety or consists of solely of figures or is liable to mislead or to cause confusion concerning the characteristic, value identity of such variety or the identity of breeder of such variety; or
A New Variety shall also not be registered if it 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; or
A New Variety shall also not be registered under the Act if it is likely to deceive the public or cause confusion in the public regarding the identity of such variety; or
A New Variety is also not entitled to be registered if it is likely to hurt the religious sentiments of any class or section of the citizens of India or is prohibited for use as a name or emblem and names or is comprised solely or partly of geographical names; or
A New Variety or Extant Variety shall also not be registered if it contains any gene or gene sequence involving any harmful technology including terminator technology which is injurious to the life or health of human beings, animals or plants.
The Registrar may register a New Variety under the Act, if the denomination given to such variety comprises solely or partly of geographical name, if he considers that the usage of such denomination is an honest use under the circumstances of the Case.
The Act mandates that every new variety subject to the criteria of Novelty, Distinctiveness, uniformity an stability shall be registered under the Act.