Procedure of Registration under Protection of Plant Variety and Farmer’s Rights Act, 2001

• By: Bhawna Sharma
• Date: 14-Aug-2020
• Post in: Intellectual Property & Technology

The Protection of Plant Variety and farmer’s Rights Act (“the Act”) was passed by the Parliament in 2001 owing to the obligation of the Indian Government under Article 23.3(b) of the TRIPS Agreement. This act is a unique legislation owing to the fact that is the first legislation of its kind to make provisions for recognizing the rights of farmers.

The act seeks to grant protection to plant breeders who have developed plant varieties by the use of their intellectual capabilities so as to boost the agricultural development in the country.

The various plant varieties that can be protected through registration under the Act are:

1. New variety: As is evident from the name, these are the varieties that have been developed anew i.e. they do not exist naturally. The distinguishable characteristics are generally easily discernible in cases of new varieties.

2. Essentially Derived Variety (“EDV”): These are the varieties that have predominantly been derived from an initial variety. They are different from new varieties as they are fundamentally similar to the initial variety to such an extent that the characteristic that distinguishes them is considerable hard to discern. It is for this reason that the identification of EDVs is a fundamentally tedious process.

Generally developed through (non-exhaustive list):

1. Genetic Engineering
2. Mutation
3. Tissue Culture Derived
4. Back Cross Derivative
5. Any other (Ploidy change etc.)

3. Extant Variety: The Indian Legislation also provides for the Registration for existing varieties. These are the varieties that are already in existence but still warrant protection for one reason or another. These include:

1. Varieties notified under Section 5 of the Seeds Act,1966.
2. Farmer’s variety
3. Varieties in Common Knowledge(“VCK”)
4. Varieties in Public Domain

4. Farmers’ Variety: These are the varieties that have been traditionally cultivated or evolved by farmers in their field and their existence is a matter of common knowledge within the community.

Who can file an application for protection?
Under Section 16 of the Act, an application for the registration of a plant variety can be filed by any of the following persons:

• Breeder;
• Successor of breeder;
• Assignee of breeder;
• Farmer, group or community or
• University or publicly funded agricultural institution.

Procedure of Application for the varieties specified under Section 14, 15

1. The application for registration shall be made to the Registrar and for a variety clearly stating the denomination of the same in the manner prescribed under Form 1 of the Regulations.
2. It shall contain the entire passport data of the parental lines from which the variety has been derived along with all the information related to contribution of various parties in its development (Duty to disclose the source).
3. Once the application has been made, the same can either be:

1. Accepted,
2. Rejected, in which case a reasonable opportunity of representation has to be accorded,
3. Sent back for amendment.

4. Documents Required while making the application (Section 18 of the Act):

1. Statement of distinctiveness, uniformity and stability.
    
2. Declaration that the genetic material or parent material has been lawfully acquired.
    
3. If application is being made by exercising right to succession or assignment, a proof of the same shall be attached.
    
4. Seeds shall also be made available for tests, the ,manner of which has been prescribed in the regulations
    
5. The duty of Disclosure under Section 40 must be adhered to i.e. if there has been any contribution in the development of the variety by any tribal group or community, the breeder is required to disclose the same in his application. Willful failure to do so would lead to rejection of the application.
    
6. If application is being made by a person authorized under Sec 16(1)(e), Letter of authorization required(Form PV 1)
    
7. If application is being made by a person by virtue of succession or assignment, the succession certificate or any other certificate that proves such succession or assignment must be attached in the manner prescribed in Form PV 2 as laid down under Section 18(3).

5. Objections:

Once the application has been accepted (with or without conditions or limitations), it shall be advertised calling for objections. This has to be done within 3 months from the date of filing of the application.
The objections can be made on the following grounds

1. Person making objection is entitled to breeders right
2. Variety not registrable.
3. Against public interest
4. Adverse effect on environment

The objections under Sec 21(2) are to be made in the manner prescribed in Form PV-3 and a copy of objections is to be provided to the applicant.

6. Counter Statement

1. Counter-statement to be sent within 2 months of receipt in the manner prescribed in
    

   Form PV 4.

1. Counter-statements shall be made available to the opposing party.

7. Evidence

1. Evidence can be submitted and recorded under Sec 21(6).
    
2. Extension for time limit for filing the evidence can be extended by making an application.
    
3. The authority is also entitled to provide an opportunity of hearing to the parties if a desire in that regard is expressed.
    

8. Certificate

1. Once the application has been accepted, the certificate is to be issued to the applicant.
    
2. Under Section 24(3) of the act, in the event that the certificate not granted to the applicant within 12 months from application, on account of default by applicant the application shall be considered as abandoned provided that notice is accorded.
    
3. Certificate once issued, shall be valid for 9 years in case of trees and vines and 6 years in case of other crops.