The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (the Indian Plant Varieties Act), was enacted to comply with the TRIPS Agreement. It establishes a sui generis framework for granting intellectual property rights in plant varieties in India because the Indian Patents Act excludes plants, seeds, varieties, and essential biological processes for plant production and propagation from patent protection.
A notable feature of the Indian Plant Varieties Act is that it grants intellectual property rights not only to newly developed varieties but also to varieties already in commercial use under the extant category. The extant varieties are also referred to as “variety of common knowledge (VCK)”. A variety is regarded as “new” if, on the date of filing the registration application, its propagating or harvested material has not been commercialised in India for more than one year, or outside India for more than six years in the case of trees and vines, and more than four years in all other cases. If variety does not satisfy these novelty requirements, it may instead be considered for registration under the extant category.
One of the key requirements for obtaining intellectual property rights for plant varieties under the new category is that the crop species must be notified by the Government of India under Section 29(2) of the Indian Plant Varieties Act. To date, the Government has notified more than 200 crop species, including cereals, pulses and legumes, oilseeds, sugar crops, spices, vegetables, flowering plants, medicinal and aromatic plants, trees, forest and plantation crops, fruits, and cash crops, as eligible for registration under this category. However, the Act does not specify criteria for selecting and notifying crop species, creating uncertainty. An analysis of the notification pattern suggests that the selection may be ad hoc and that most of the species notified are crops cultivated on a large scale in India.
Once the Government notifies a crop species, the Plant Variety Office publishes a notice in the Indian Plant Varieties Journal inviting applications for the registration of varieties of that species under the extant category. Registration of extant (notified) varieties is time-bound, although the deadline may be extended after review by the Plant Variety Office committee. By contrast, new varieties may be registered at any time after the Government notifies the relevant crop species.
A shortcoming of this aspect of India’s plant variety IPR regime is that it significantly limits the registration of varieties with little or no cultivation in India. For example, blueberries, raspberries, hemp and several other varieties with limited areas under cultivation have not yet been notified by the Government.
For extant varieties of common knowledge, government notification is not mandatory. In a positive step, the Plant Variety Office issued a public notice on April 5, 2022 (F. No. PPV &FRA/Legal/02/2019), inviting interested parties to submit proposals for the registration of non-notified crops under the extant category. The proposal must include detailed information about the candidate variety, such as its origin, method of propagation, available descriptors of genetically inherited distinguishing morphological characteristics, examples of reference varieties available in India with their trait expressions, suitable regions for conducting DUS testing, and production conditions that support optimal agronomic expression during DUS trials. Accordingly, the applicant is required to do extensive homework before presenting a proposal to the Indian Plant Variety Office. Further, the said notification clearly states that the Registrar, after examination, shall decide whether such an application can be considered for registration.
In view of the above, it is concluded that the Indian plant variety registration system offers protection to a very limited number of newly developed varieties. In contrast, under Article 3 of the International Union for the Protection of New Varieties of Plants (UPOV) Convention 1991, each member state is bound to provide protection for all plant genera and species. Hence, although India is not a member of UPOV, the Indian Plant Variety Office needs to take necessary steps to safeguard the rights of breeders of new varieties developed worldwide.
Authors – Manisha Singh (Partner) & Vijaya Choudhary (Managing Associate)