In accordance with the TRIPs Agreement, India has enacted the Protection of Plant Varieties and Farmers Rights Act, 2011 with an aim to establish an effective system for the protection of plant varieties and, the rights of the breeders and to encourage the development of new varieties of plants.
The Central Government is authorized to establish an Authority to be known as the Protection of Plant Varieties and Farmer’s Rights Authority consisting of a chairperson and 15 other members as representatives of different Ministries and departments. The powers and functions of the Authority are conferred by the Act.
Any variety of plant that fulfils the DUS criteria and is “new” qualifies for protection. Unlike patent protection, there is no requirement to show any inventive step or industrial application.
A DUS examination involves growing the variety with most similar varieties of common knowledge, usually for at least two seasons, and then record a comprehensive set of morphological descriptors.
Plant varieties growing in wilderness cannot be registered by the Authority. Traditional plant varieties which have undergone domestication or improvement through human interventions can be registered and protected if it fulfills the eligibility criteria.
A plant variety, to be able to be registered, must conform to the criteria of novelty, distinctiveness, uniformity and stability.
Any person specified in section 16 may make an application to the Registrar for registration of any variety.
An application for the registration of a plant variety can be made by:
The application can be filed by any of the persons mentions or jointly with another person.
The Registrar will initially accept the new plant variety as acceptable and direct the publication, calling for objections.
After giving an opportunity of hearing to both the parties, the Registrar will direct the registration of the variety. The order of the Registrar of granting or refusal shall contain reasons.
After the grant of certificate of registration, the Registrar will make further publication of the registration granted to the breeder inviting claims for benefit sharing to the plant variety registered.
The duration of protection is different for different varieties:
Breeders Rights – the certificate of registration of a variety will confer on the breeder or his successor or agent or licensee to produce, sell. Market, distribute, import or export the variety.
Farmer’s Right - The farmer’s rights of the Act define the privilege of farmers and their right to protect varieties developed or conserved by them. Farmers can save, use, sow, re sow, exchange, share and sell farm produce of a protected variety except under a commercial marketing arrangement. Further, the farmers have also been provided protection of innocent infringement when, at the time of infringement, a farmer is not aware of the existence of breeders rights.
Communities Rights – the communities have a right to get compensation for their contribution in the evolution of new varieties.
Compulsory License - The authority can grant compulsory license, in case of any complaints about the availability of the seeds of any registered variety to public at a reasonable price. The license can be granted to any person interested to take up such activities after the expiry of a period of 3 years from the date of issue of certificate of registration to undertake production, distribution and sale of the Seed or other propagating material of the variety.
Benefit Sharing - Sharing of benefits occurring to a breeder from a variety developed from indigenously derived plant genetic resources has also been provided. The authority may invite claims of benefit sharing of any variety registered under the Act and shall determine the quantum of such award after ascertaining the extent and nature of the benefit claim.