2/24/20141 protection of plant varieteies and farmers rights act, 2001 5 april 2010 wipo malathi...
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PROTECTION OF PLANT VARIETEIES AND PROTECTION OF PLANT VARIETEIES AND FARMERS’ RIGHTS ACT, 2001FARMERS’ RIGHTS ACT, 2001
5 April 20105 April 2010WIPO WIPO
Malathi LakshmikumaranMalathi LakshmikumaranLakshmikumaran & Sridharan Lakshmikumaran & Sridharan
Why Protection for plants is Why Protection for plants is required in India?required in India?
Compliance with TRIPSCompliance with TRIPS Some form of IPR protection is Some form of IPR protection is
necessary for plantsnecessary for plants Can be in the form of patent protection; orCan be in the form of patent protection; or By a By a sui generis sui generis system; orsystem; or By a combination of bothBy a combination of both
Crops Covered under the Crops Covered under the PPVFRAPPVFRA
CerealsCereals : : Rice, wheat, maize, sorghum, pearl milletRice, wheat, maize, sorghum, pearl millet Legumes: Chickpea, mungbean, urdbean, field pea, rajmash, Legumes: Chickpea, mungbean, urdbean, field pea, rajmash,
lentil, pigeon pealentil, pigeon pea
Fibre Crops : Cotton and JuteFibre Crops : Cotton and Jute
Third phase Third phase Sugarcane , ginger, turmericSugarcane , ginger, turmeric Fourth PhaseFourth Phase Oilseeds : Rapeseeds mustard, groundnut, soybean, sunflower, Oilseeds : Rapeseeds mustard, groundnut, soybean, sunflower,
safflower, castor, sesame, linseedsafflower, castor, sesame, linseed Fodder Varieties : Lucerne, berseem Fodder Varieties : Lucerne, berseem Vegetables : Tomato, brinjal, okra, cauliflower, cabbage, potato, Vegetables : Tomato, brinjal, okra, cauliflower, cabbage, potato,
onion, garliconion, garlic Flowers : Rose and ChrysanthemumFlowers : Rose and Chrysanthemum
Varieties that can be registeredVarieties that can be registered
Novel VarietyNovel Variety Extant VarietyExtant Variety Farmers Variety Farmers Variety Essentially derived variety Essentially derived variety
Varieties that are RegistrableVarieties that are Registrable
DISTINCT
UNIFORM
STABLE
ATLEAST ONE ESSENTIAL CHARACTERISTIC
SUFFICIENTLY UNIFORM
SUSCEPTIBLE TO CHANGE AFTER REPEATED PROPAGATION
Criteria
NOVEL VARIETY 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 People who can apply for protection of a VarietyVariety
any person claiming to be the breeder of the varietyany person claiming to be the breeder of the variety
any successor of the breeder of the varietyany successor of the breeder of the variety
any person being the assignee of the breeder of the varietyany person being the assignee of the breeder of the variety
any farmer or group of farmers or community of farmers any farmer or group of farmers or community of farmers claiming to be the breeder of the varietyclaiming to be the breeder of the variety
any person authorised in the prescribed manner by the persons any person authorised in the prescribed manner by the persons mentioned abovementioned above
any university or publicly funded agricultural institution any university or publicly funded agricultural institution claiming to be the breeder of the varietyclaiming to be the breeder of the variety
PVP ConditionsPVP Conditions
DenominationDenomination Descriptors of varietyDescriptors of variety NoveltyNovelty DUS Characters DUS Characters Parental linesParental lines Terminator technologyTerminator technology
Rights of the Owner of the Variety Rights of the Owner of the Variety (Sec. 28)(Sec. 28)
The owner of the protected variety has the right toThe 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 In case of the variety being an EDV where the EDV derived from a protected variety then an authorisation required from a protected variety then an authorisation required from the breeder of the initial varietyfrom the breeder of the initial variety
Infringement (Sec. 64)Infringement (Sec. 64)
Any one of the following done by a Any one of the following done by a person other than the owner or person other than the owner or without his authorisation / licensewithout his authorisation / license
• Sells, exports, imports or exports a Sells, exports, imports or exports a registered variety registered variety
• Sells, exports, imports or exports a Sells, exports, imports or exports a variety deceptively similar to the variety deceptively similar to the registered varietyregistered variety
Acts not considered to be infringementActs not considered to be infringement
Researcher Rights (Sec 30) : Researcher Rights (Sec 30) : Use of variety for research and Use of variety for research and
experimental purposes allowedexperimental purposes allowed Use of variety as an initial variety for the Use of variety as an initial variety for the
creation of a new variety allowedcreation of a new variety allowed Repeated use of the variety for Repeated use of the variety for
commercial production of a new variety commercial production of a new variety is not allowed without the authorization is not allowed without the authorization of the breeder of the registered variety.of the breeder of the registered variety.
Relief in Case of Infringement Relief in Case of Infringement (Sec. 66)(Sec. 66)
An injunction awarded against the infringerAn injunction awarded against the infringer
The plaintiff has the option to claim for damages The plaintiff has the option to claim for damages or a share of the profits of the infringeror a share of the profits of the infringer
Other Protection ProvidedOther Protection Provided
The PPVFRA provides a civil as well as a criminal liability for The PPVFRA provides a civil as well as a criminal liability for other acts which violates the rights of the owner of the other acts which violates the rights of the owner of the protected varietyprotected variety
Penalty for selling varieties to which false denomination is Penalty for selling varieties to which false denomination is applied (Sec. 71) – punishable offence with heavy fineapplied (Sec. 71) – punishable offence with heavy fine
Penalty for falsely representing a variety as registered (Sec Penalty for falsely representing a variety as registered (Sec 72) – punishable offence72) – punishable offence
Penalty for subsequent offence (Sec 73)Penalty for subsequent offence (Sec 73)
Duty of the Breeder of a Protected Duty of the Breeder of a Protected VarietyVariety
Shall in all circumstances provide correctly the Shall in all circumstances provide correctly the expected yield/performance under a given set of expected yield/performance under a given set of conditions conditions
Shall ensure that the denomination of the Shall ensure that the denomination of the protected variety conforms with the description protected variety conforms with the description of the protected varietyof the protected variety
Who is a Farmer ?Who is a Farmer ?A A farmer farmer is defined in the PPVFRA is defined in the PPVFRA as :as :
Section 2(k) "farmer" means any person who--Section 2(k) "farmer" means any person who--i.i. cultivates crops by cultivating the land himself; orcultivates crops by cultivating the land himself; orii.ii. cultivates crops by directly supervising the cultivation cultivates crops by directly supervising the cultivation
of land through any other person; orof land through any other person; oriii.iii. conserves and preserves, severally or jointly'. with conserves and preserves, severally or jointly'. with
any person any wild species or traditional varieties, or any person any wild species or traditional varieties, or adds value to such wild species or traditional varieties adds value to such wild species or traditional varieties through selection and identification of their useful through selection and identification of their useful propertiesproperties
Farmers’ Rights (Sec 39)Farmers’ Rights (Sec 39)
Has the same privilege with respect to a breeder of a varietyHas the same privilege with respect to a breeder of a variety
A farmers’ variety shall be entitled for registration if a A farmers’ variety shall be entitled for registration if a declaration has been made that the initial variety has been declaration has been made that the initial variety has been lawfully obtainedlawfully obtained
Can save, use, sow, resow, exchange, share or sell his farm Can save, use, sow, resow, exchange, share or sell his farm produce including seed of a protected varietyproduce including seed of a protected variety
The farmer as such cannot sell branded seeds of a protected The farmer as such cannot sell branded seeds of a protected varietyvariety
A farmer can claim damages if the seed of the protected A farmer can claim damages if the seed of the protected variety does not give the yield as stated by the breeder.variety does not give the yield as stated by the breeder.
Protection Against Unintentional UseProtection Against Unintentional Use (Sec 42) (Sec 42)
The act provides farmers against the The act provides farmers against the unintentional and accidental use of the unintentional and accidental use of the protected varietyprotected variety
No infringement if the farmer was unaware of No infringement if the farmer was unaware of the existence of the rightsthe existence of the rights
A relief granted as damages for infringement A relief granted as damages for infringement shall not be granted if the farmer proves shall not be granted if the farmer proves before court that at that time he was before court that at that time he was unaware of the existence of such rightunaware of the existence of such right
Farmers Are Exempted From Fees (Sec. Farmers Are Exempted From Fees (Sec. 44)44)
Farmer or a group of farmers not liable to Farmer or a group of farmers not liable to paypay
Fees in any proceedingsFees in any proceedings Including any fees payable for inspectionIncluding any fees payable for inspection For obtaining any copy of a document or a For obtaining any copy of a document or a
copy of a decision 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 Authority will invite claims for benefit sharing from persons or organizationsfrom persons or organizations
Benefit sharing only for Indian Citizens and Benefit sharing only for Indian Citizens and OrganizationsOrganizations
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 The amount of benefit sharing shall be
deposited with the National Gene Funddeposited with the National Gene Fund
THANK YOU!THANK YOU!