On June 17, 2025, the Registrar General of the Protection of Plant Varieties and Farmers Rights Registry (hereinafter “the Indian Plant Variety Registry”) passed an order in favour of Advanta Enterprises Ltd. (hereinafter “applicant”) rejecting the opposition filed by the Nuziveedu Seeds Limited (hereinafter “opponent”) against registration of okra variety denominated as V130014 (Raadhika) under Section 22 of the Protection of Plant Varieties and Farmers Rights Act, 2001 (hereinafter “the Act”), suggesting that when the opposition is based on non-technical findings, the chances of winning are bleak.
On April 5, 2018, the applicant filed an application No. N2-AE2-18-164 at the Indian Plant Variety Registry seeking registration of a hybrid okra variety Raadhika under the New category. After substantive examination, details of the variety were published in the Plant Variety Journal on January 1, 2024. Prior to publication of said variety, the applicant in 2021 had instituted a proceeding against the opponent under Section 24(5) of the Act, alleging abusive acts committed by the opponent and that the opponent’s varieties BINDU and NBH-45 were identical to that of the applicant’s hybrid variety Raadhika.
The opponent, identifying the opportunity to file opposition after publication of said variety, filed opposition against registration of said variety on March 28, 2024, on the basis that the opponent had commercialised the varieties BINDU and NBH-45 since 2004 and 2012, respectively. It was also argued that the applicant’s allegations against the opponent in the proceeding under Section 24(5) of the Act were an admission that the opponent’s varieties BINDU and NBH-45 were the same as the applicant’s variety Raadhika.
Consequent to receiving an opposition against the registration of variety Raadhika, the applicant filed a counterstatement and evidence. The Registrar for the Indian Plant Variety Registry, after analysing the pleadings filed by both parties and their evidence, framed the following issues to decide:
- Whether the deficiencies in the filed application for registration of the okra variety are fatal for registration?
- Whether the opponent’s varieties NBH-45 and BINDU have been sold since 2004 and 2012, respectively?
- What are the characteristics of NBH-45 and BINDU, which have been sold by the opponent?
- Whether the applicant’s hybrid variety Raadhika and the opponent’s varieties NBH-45 and BINDU can be treated as identical based on the statement or confession of the applicant in a parallel proceeding?
After hearing both the parties, the Registrar decided that although the grounds mentioned under Section 21(3) of the Act, does not explicitly mention deficiencies in the application as a ground for filing an opposition, still deficiencies in the application were within the purview of sub clause (b) of clause (3) of Section 21 of the Act, which provides that an application can be opposed on the ground that the variety is not registrable under the Act. Addressing the question of fatality or curability of deficiencies, the Registrar preferred to abide by a contextual approach and to decide upon the facts and circumstances of the case. The Registrar, in the instant case, held that, although the deed of assignment for the parental lines had been executed after the deed of assignment for the hybrid variety, it could be fatal for the registration of the hybrid variety.
For establishing that the sale of NBH-45 and BINDU commenced prior to the filing of the applicant variety, the opponent had presented invoices and licenses issued by state governments that were issued on dates before the date of filing of the applicant variety. The Registrar General, after examining the evidence, decided that the sale of NBH-45 and BINDU had commenced prior to the filing of the applicant variety.
Although the opponent succeeded in establishing that applicant variety Raadhika was not new, he could not establish that NBH-45 and BINDU were the same as Raadhika. Section 106 of the Indian Evidence Act, 1872, requires that the burden to prove must be discharged by the claimant. Thus, evidence to the effect that the characteristics of the varieties NBH-45 and BINDU were identical to those of the applicant variety Raadhika must have been submitted by the opponent.
Thus, though the opponent was selling the varieties NBH-45 and BINDU before the enactment of the Act and formulation of DUS Test Guidelines of Okra by the Indian Plant Variety Authority, the opponent did not submit any documentary proof to establish the resemblance of morphological/agronomic characters between varieties NBH-45/BINDU and Raadhika and thus failed to discharge the burden. The Registrar, while deciding the third issue, also mentioned in the order that “if the characteristics of NBH-45 and BINDU have been submitted, it would have facilitated to ascertain its DUS characteristics as per crop-specific guidelines and compare the same with DUS Test results of Raadhika”.
Section 24(5) of the Act has always been a matter of debate. The intent of the legislature behind this provision was to protect the interests of breeders against any abusive act committed by any third party during the period between the filing of an application for registration and the decision taken by the Authority on such application. In the instant case, the applicant had used this provision to obtain provisional protection, alleging that the opponent was committing an abusive act in respect of the applicant’s variety Raadhika. During the proceedings under Section 24(5) of the Act, the applicant stated that the respondent’s okra varieties NBH-45 and BINDU were identical to the applicant variety Raadhika.
Therefore, the opponent’s case in the present opposition was that the applicant’s variety development was initiated in 2012, whereas the opponent varieties BINDU and NBH-45 had been licensed since 2012 and 2004, respectively; hence, the applicant’s variety Raadhika fails the test of novelty and distinctiveness. Accordingly, the fourth and final issue before the Registry was whether admission by the applicant in a parallel proceeding that the applicant’s variety Raadhika was identical to that of the opponent’s variety was sufficient to discharge the burden on the opponent that both varieties were identical.
Therefore, the applicant’s variety was liable to be rejected under Section 20 of the Act. The Registrar, in his order, clearly stated that the question whether two varieties were identical in nature or not could be decided only on evidence of technical findings which could be corroborated or contradicted by the parties. Accordingly, the Registrar, in the absence of any technical evidence supporting the identicalness of varieties in dispute, rejected the contention of the opponent. In view of the above, the opposition was rejected under Section 22 of the Act.
An analysis of the aforesaid order suggests that evidence in support of early sales confirming prior commercialisation was not sufficient. However, technical evidence disclosing the morphological and agronomic traits of the varieties was essential in opposition proceedings where the question of selling the variety with identical traits arises.
Author: Manisha Singh and Vijaya Choudhary
First Published by: Mondaq here