WHAT IS THE SUI GENERIS PROTECTION TO PLANT VARIETIES: FARMER’S RIGHT VS. BREEDER’S RIGHT

Protection of plant species, although at various levels, is related to both farm innovation and the conservation of biological resources. Latest advances have recently been awarded intellectual property rights, triggering the attractive characteristics of plants. In particular areas of technology, the common justification for implementing exclusive IP rights is the need to provide a temporary exclusivity to a person or legal entity which devotes significant resources for the creation of new technologies.

WHAT IS THE SUI GENERIS PROTECTION TO PLANT VARIETIES: FARMER’S RIGHT VS. BREEDER’S RIGHT

In the field of intellectual property rights, agriculture has been one of the most important areas to study since major legislation and policy changes have been made in this area over the past decades. Developing countries underline a number of factors, rather than a system similar to that which is prevalent in developed nations, that require a national plantation protection regime. The protection of plant varieties is a matter of the intellectual property rights over plant varieties, which for a fixed period of time grant exclusive trading rights for rights holders. Plants are the result of nature and for years conventional methods have been used to produce new plant varieties.

Protection of plant species, although at various levels, is related to both farm innovation and the conservation of biological resources. Latest advances have recently been awarded intellectual property rights, triggering the attractive characteristics of plants. In particular areas of technology, the common justification for implementing exclusive IP rights is the need to provide a temporary exclusivity to a person or legal entity which devotes significant resources for the creation of new technologies. This is connected with the idea to quickly copy such types of information. If no exclusive privilege was given to the inventor, people who had not contributed to the creation of an invention would be in a position to benefit from the fruits of the inventor. The tradition of inventiveness in the field of agriculture is that farmers in most parts of the world share biologically essential resources and expertise. In some OECD countries, a private seed sector has grown steadily at the beginning of the 20th century. The private sector growth in this region has resulted in calls for a form of defense of intellectual property rights over plant species to provide private sector actors with ample incentives to join the seed industry. However, while the preferred legal method of defense of innovations in most technical fields was patent, an alternative form of IPR rights, plant breeders' rights, was established in the agricultural sector. This alternative method of intellectual property security has been brought about by numerous factors. Firstly, it became clear progressively that it was important to promote private seed investment in a form of intellectual property rights, on the other hand, the prolongation of patent rights was opposed in two ways. For a while, the industry has claimed that if plant varieties are brought on board, the principle of inventiveness that characterizes patents would be watered down because a new plant variety is seen as better than a "scientific" discovery than the current natural product. Other actors argued that seeds were always a part of the common human heritage and were freely exchanged among farmers and farming communities, and still argue in some cases. In the wake of the TRIPS agreement, the various positions expressed on introducing the rights of plant breeders assumed added importance. Plant varieties can currently be protected by the defense in three ways:

  1. Patent award or;
  2. Successful sui generis system, or
  3. Any patent combination and sui generis system.

In 2001 in order to protect newly raised plant varieties, the Indian Parliament passed the Plant Variety Protection and Farmers' Rights Act. India has now adopted the legislation granting the rights of plant breeders to new seed varieties. The law also gives farmers certain rights. This research is aimed at reviewing the provisions of the Plant Varieties and Farmer's Rights Act, 2001 and assessing the Act's efficacy in enforcing this Act.

ORIGIN AND DEVELOPMENT OF PBRS IN INDIA

India and many other developing countries have no strict patenting scheme to protect plants. However, the TRIPs agreement has the mandate to preserve plant varieties by the Member States. One problem mainly affecting developing countries such as India is the implementation of plant variety protection. Indeed, before the TRIPS were implemented, most developing countries had already introduced plant patents or PBRs. Developing countries which are members of the WTO have been left with the option either to follow the current UPOV regime or to develop a scheme for the conservation of plants that are suited to their particular situation. The "Protection of Plant Varieties and Farmers' Rights Act, 2001" was enacted, under the TRIPs agreement, by India to include the sui generis framework for the protection of plant diversity. The model for this Act was the UPOV Convention, whereby India agreed to enact varietal protection schemes aimed at protecting commercial farmers and farmers. Thus, both PBR and farmers are covered by a single form of Indian plant variety scheme. The Indian Conservation of Plant Varieties and Farmers' Rights Act, 2001, divides plants into four major classes: new, current, basically derived and farmer's. Varieties of plants can only be covered by PBRs if they meet four essential novelty, differentiation, stability and uniformity or homogeneity criteria. Each of these features is supplied by UPOV itself with additional material. The definition of neighbours, since it varies from the recognition by patent law, needs further elaboration. Under UPOV, a diverse species is new if it was not marketed by or with the breeder's agreement for use of the variety or otherwise disposed of to others. Therefore, novelty is entirely characterized by advertisement and not by the fact that the variety did not occur in the past. For the application of novelty, UPOV gives a special timeframe. To be novel, a variety must not be sold for more than one year in the country where the request is lodged and for more than four years in the other Member States (six years in the case of trees and vines). The distinctive criteria require that the protected variety be clearly distinguishable from any other variety which, when filing the application, has a common knowledge. Stability is achieved if, after repeated replication or dissemination, the variety remains true to its definition. Finally, continuity means that when it is propagated, the variety holds true to the original in its related features.

IF YOU WANT TO KNOW WHAT IS PATENT PROTECTION IN INDIA, WATCH THIS VIDEO -  

RIGHTS OF THE FARMERS

Also covered seeds, finally provided for in section 39(iv) of the Farmers' Rights Chapter. The farmer is considered to be entitled, in the same way as he was entitled before this Act was effective to save, use, cultivate, resew, trade, share or sell its farmed products including seed of a variety covered under this Act. The farmer is not, however, entitled to sell the "branded seed of a species covered by this Act.”

FEATURES OF FARMERSRIGHTS

The law recognizes the role of rural communities in the propagation of new plant species as contributors of landraces and farmers. Breeders who want to make Essentially Derived Varieties (EDVs) using farmers' varieties cannot do so without farmers' explicit consent. All can register the argument of a group and have it registered properly in a published center. If the argument is found to be genuine, it must go into a National Gene Fund a proportion of the profit generated from the new variety.

  1. Fee exemption
  2. Disclosure 
  3. No technology for terminators
  4. Protection against innocent infringement   
  5. Sharing of benefits
  6. Poor seed defense

RIGHTS OF BREEDERS AND RESEARCHERS

The interests of breeders have been thoroughly safeguarded by statute. The Act defines the word "breeder" as "breeder." This defines an individual, group of persons or farmers or any entity that has cultivated, created, and developed a variety. The Act defines "breeder" as the meaning. Other farmers under this Act are those who either-

  1. Cultivates the crop by cultivating the land themselves, or
  2. Directly cultivates the land by some other individual, or
  3. Selects and recognizes the useful property of any wildlife or conventional varieties, separately or jointly, by any other person.

The breeder has full marketing rights for the registered variety upon registration. These include the right of the registered variety to manufacture, sell, market, distribute, import or export.

PENALTIES FOR INFRINGING BREEDERSRIGHTS

The breeder's rights may be abused for both the variety and the packaging of the variety itself. Sanctions will range between Rs. 50,000 and 10 lakes and a prison sentence of between three months and 2 years, depending on the severity of the damage caused. Fines can be elevated to Rs. 20 lakh, and prison sentences up to 3 years for repeated offences.  The new legislation provides for the rights of researchers, which allow for the free access of scientists and breeders to registered research plants. The registered species can also be used to build new species. This versatility is only limited if the recorded variety is repeatedly used to create a different variety as a parental line.

BY - RAKSHA SINGHAL