PPV&FR Act 2001: Scheme and Kinds of Varieties

1. The Act and its objects

The Protection of Plant Varieties and Farmers’ Rights Act, 2001 is India’s sui generis system under TRIPS Article 27(3)(b). Its preamble sets out the aims: an effective system for the protection of plant varieties and the rights of plant breeders and farmers; recognising and protecting farmers’ contribution in conserving, improving and making available plant genetic resources; accelerating agricultural development; stimulating investment in research and development; and facilitating the growth of the seed industry to ensure availability of high-quality seed to farmers.

Institutions:

• the Protection of Plant Varieties and Farmers’ Rights Authority (section 3), at New Delhi, under the Ministry of Agriculture, which also handles benefit sharing, compulsory licences, revocation and compensation claims;
• the Registrar-General and the National Register of Plant Varieties kept at the Registry;
• the National Gene Fund (section 45); and
• appeals, formerly to the Plant Varieties Protection Appellate Tribunal (functions exercised by the IPAB), now lie to the High Court after the Tribunals Reforms Act, 2021.

2. What a “variety” is (section 2(za))

A variety means a plant grouping, except micro-organisms, within a single botanical taxon of the lowest known rank, which can be (i) defined by the expression of the characteristics resulting from a given genotype of that plant grouping; (ii) distinguished from any other plant grouping by expression of at least one of those characteristics; and (iii) considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation. It expressly includes propagating material of the variety, extant varieties, transgenic varieties, farmers’ varieties and essentially derived varieties. The core of the definition follows UPOV 1991.

3. New variety

A new variety is registrable if it conforms to novelty, distinctiveness, uniformity and stability (section 15(1)). Section 15(3)(a) deems it novel if, on the date of filing, its propagating or harvested material has not been sold or otherwise disposed of by or with the consent of the breeder for the purpose of exploiting the variety:

• in India, earlier than one year; or
• outside India, earlier than six years for trees or vines, or four years in any other case,

before the date of filing. Trials of an unsold variety do not affect novelty, and the fact that the variety has become a matter of common knowledge other than through sale does not affect novelty either. Novelty here is commercial, unlike patent novelty: a variety that existed in the wild but was never sold can be “new”.

4. Extant variety

Section 2(j) defines an extant variety as a variety available in India which is (i) notified under section 5 of the Seeds Act, 1966; (ii) a farmers’ variety; (iii) a variety about which there is common knowledge; or (iv) any other variety in the public domain. An extant variety is registered within a specified period if it meets the DUS criteria specified by regulations (section 15(2)); novelty is not required.

The purpose is to bring existing varieties (mostly bred by ICAR and agricultural universities and notified under the Seeds Act) into the register, to establish ownership, and to stop others claiming them as new. For an extant variety notified under the Seeds Act, the Central or State Government is deemed the owner unless a breeder establishes his right (proviso to section 28(1)), and the term runs fifteen years from the date of notification under the Seeds Act (section 24(6)(ii)).

5. Farmers’ variety

Section 2(l): a variety which (i) has been traditionally cultivated and evolved by the farmers in their fields; or (ii) is a wild relative or land race or a variety about which the farmers possess the common knowledge. “Farmer” (section 2(k)) is wide: a person who cultivates crops himself or by supervising others, and also a person who conserves and preserves wild species or traditional varieties or adds value to them through selection and identification of useful properties.

• Farmers’ varieties are registrable as extant varieties, on the DUS criteria, with a declaration as to lawful acquisition of the genetic material (section 39(1)(ii)).
• No fees are payable by farmers or communities in any proceeding before the Authority, Registrar or High Court (section 44).
• An EDV derived from a farmers’ variety cannot be authorised without the consent of the farmers or community who contributed to the variety (section 43).

India is one of the few countries that registers farmers’ varieties. Registration gives the community a legal title that can support benefit-sharing and compensation claims, and prevents misappropriation by a company claiming the variety as its own new variety.

6. Essentially derived variety

Section 2(i): a variety is an EDV in relation to an initial variety if it:

1. is predominantly derived from the initial variety, or from a variety itself predominantly derived from it, while retaining the expression of the essential characteristics that result from the genotype of the initial variety;
2. is clearly distinguishable from the initial variety; and
3. conforms (except for the differences resulting from the act of derivation) to the initial variety in the expression of its essential characteristics.

EDVs typically result from selection of a natural or induced mutant, back-crossing, or insertion of a single gene by genetic engineering (for example, a Bt gene inserted in an existing cotton hybrid). Section 23 provides a separate procedure for registering EDVs: the application is made to the Registrar, who forwards it to the Authority; the Authority has the variety tested to determine whether it is derived from the initial variety and, if satisfied, directs the Registrar to register it.

The policy is to protect the initial breeder against “cosmetic” breeding while allowing the EDV’s developer to obtain a right. Unlike UPOV 1991, the Indian Act does not make an EDV automatically fall within the initial breeder’s right; it requires separate registration, and the statute does not set a numerical threshold of genetic similarity, leaving it to evidence.

7. Comparison

How this is examined

For the 2025 question, write four headed sections, each with the statutory definition, conditions, an example and a comment. Start with section 2(za) and end with a short comparative point: India’s farmers’ and extant categories have no counterpart in UPOV.