The Protection of Plant Varieties and Farmers' Rights Act, 2001

1. Background

TRIPS Article 27(3)(b) allows members to exclude plants and animals from patents but requires them to protect plant varieties “either by patents or by an effective sui generis system or by any combination thereof.” The model sui generis law is that of the International Union for the Protection of New Varieties of Plants (UPOV), whose Convention was adopted in 1961 and revised in 1978 and 1991. UPOV 1991 strengthens breeders' rights, makes the farmers' privilege to save seed optional and narrow, and introduces protection of essentially derived varieties. India chose not to join UPOV and enacted its own law, which recognises breeders and farmers together. The Protection of Plant Varieties and Farmers' Rights Act, 2001 was among the first statutes anywhere to give farmers rights alongside breeders. The Rules were made in 2003, the Authority was set up in 2005, and registration of varieties began soon after.

2. Objects

The Preamble records the aims: an effective system for protecting plant varieties and the rights of farmers and breeders; recognising the contribution of farmers in conserving, improving and making available plant genetic resources; accelerating agricultural development; stimulating investment in research; and facilitating growth of the seed industry and availability of quality seed.

3. The Authority and the Registry

The Protection of Plant Varieties and Farmers' Rights Authority, under the Ministry of Agriculture, with a Chairperson and members representing agriculture, horticulture, seed industry, farmers' and tribal organisations and women's organisations. It maintains the National Register of Plant Varieties, documents and catalogues varieties, promotes farmers' varieties, and administers the National Gene Fund. A Plant Varieties Registry operates under it. Appeals from the Authority or Registrar lay to the Plant Varieties Protection Appellate Tribunal (whose functions were assigned to the IPAB and, after the 2021 reforms, to the High Court).

4. Registrable varieties

• New variety: must be novel (not sold or disposed of in India more than one year, or abroad more than six years for trees and vines or four years for others, before the application), distinct (clearly distinguishable by at least one essential characteristic from any variety of common knowledge), uniform and stable (DUS), with an acceptable denomination.
• Extant variety: a variety notified under the Seeds Act, 1966, a farmers' variety, a variety about which there is common knowledge, or any other variety in the public domain. It need meet only DUS, not novelty.
• Farmers' variety: traditionally cultivated and evolved by farmers in their fields, or a wild relative or land race about which farmers have common knowledge.
• Essentially derived variety (EDV): predominantly derived from an initial variety while retaining its essential characteristics, but clearly distinguishable. Its registration needs the authorisation of the breeder of the initial variety.

A variety involving genetic use restriction technology (“terminator” technology, which makes seed sterile) is not registrable. Nor is a variety whose exploitation must be prevented to protect public order, public morality or human, animal or plant life and health.

5. Procedure and term

Application to the Registrar with the denomination, passport data on the parental material, a declaration that the genetic material was lawfully acquired, and seed samples for DUS testing; testing; acceptance and advertisement; opposition within three months; registration and certificate. The term of protection: eighteen years for trees and vines, fifteen years for other crops, and for extant varieties notified under the Seeds Act, fifteen years from the date of notification under that Act. The registration is initially for a shorter period (nine years for trees and vines, six years for others) and is renewed on fees up to these maxima.

6. Rights under the Act

1. Breeders' rights. The exclusive right to produce, sell, market, distribute, import and export the variety, and to authorise others. Registration of a variety is a form of IP that can be licensed.
2. Researchers' rights. Any person may use a registered variety for experiment or research, and as an initial source to create other varieties, but repeated use as a parental line for commercial production of another variety needs the breeder's authorisation.
3. Farmers' rights (s.39):
   • a farmer who has bred or developed a new variety may register and protect it like a breeder;
   • a farmer who conserves or improves genetic resources of land races and wild relatives is entitled to recognition and reward from the National Gene Fund;
   • a farmer is entitled to save, use, sow, re-sow, exchange, share or sell his farm produce, including seed of a protected variety, in the same manner as before the Act, but may not sell branded seed of a protected variety (seed in a package labelled as that variety);
   • the breeder must disclose the expected performance of the variety, and a farmer whose crop fails to perform as disclosed may claim compensation from the breeder;
   • farmers are protected against innocent infringement where they prove they were unaware of the right; and they pay no fees in proceedings under the Act.
4. Communities' rights. Any person or group may claim on behalf of a village or local community for its contribution to the evolution of a registered variety, and compensation is paid into the Gene Fund.

7. Benefit sharing, compulsory licence and Gene Fund

On registration, the Authority invites claims for benefit sharing from persons whose material was used in developing the variety, decides the amount having regard to the extent of use and the commercial utility, and the breeder deposits it in the National Gene Fund, which also receives community compensation and is used for conservation. After three years from registration, any interested person may apply for a compulsory licence on the ground that the reasonable requirements of the public for seed or planting material have not been met, or that the seed is not available at a reasonable price.

8. The PepsiCo dispute

PepsiCo registered the potato variety FL-2027 (used for chips) and, in 2019, sued several Gujarat farmers for growing it, claiming large damages. After public protest it withdrew the suits. Farmers' activists then applied to revoke the registration, and in 2021 the Authority revoked it, citing defects in the application, including the date of first sale. That revocation has since been litigated before the Delhi High Court. The dispute tested s.39: the farmers relied on their right to save and sow, while PepsiCo argued that commercial cultivation of its variety for sale to chip makers went beyond that right.

How this is examined

As a short note: TRIPS Article 27(3)(b), the four kinds of variety, DUS and novelty, term, the four sets of rights with s.39 in detail, benefit sharing, compulsory licence after three years, and PepsiCo. As an essay, add the UPOV comparison and the critique; this also feeds the agriculture part of the question on IPR and development.