Licences, Infringement, Remedies and Offences under the PPV&FR Act

1. Kinds of licences

The Act knows three ways in which someone other than the breeder may exploit a registered variety.

(a) Authorisation and registered licence (section 28)

• The breeder may authorise any person to produce, sell, market or otherwise deal with the variety, subject to limitations and conditions in regulations, in the specified form (section 28(2)–(3)).
• An agent or licensee entitled to deal in the variety applies to the Registrar to register his title; the certificate of registration is conclusive proof of the entitlement and its conditions (section 28(4)–(5)). Disputes about validity are referred to the Authority.
• A registered licensee may sue for infringement in his own name if the breeder fails to do so within three months of being called on (section 28(6)).
• A registered agent or licensee cannot further transfer the right (section 28(8)).
• The registration may be varied or cancelled by the Registrar on grounds such as misrepresentation, breach of the licence terms, or the variety ceasing to exist (section 28(9)).

(b) Authorisation for EDVs of farmers’ varieties (section 43)

Where an EDV is derived from a farmers’ variety, the breeder cannot authorise its exploitation without the consent of the farmers or community who contributed to the farmers’ variety.

(c) Compulsory licence (Chapter VII, sections 47 to 53)

1. When: at any time after three years from the issue of the certificate (section 47(1)).
2. Grounds: the reasonable requirements of the public for seed or other propagating material of the variety have not been satisfied, or the seed is not available to the public at a reasonable price.
3. Procedure: application by any person interested to the Authority, stating his interest; consultation with the Central Government; opportunity to the breeder to oppose; hearing (section 47(2)–(3)).
4. Factors (section 48): the nature of the variety, time elapsed since grant, price of seed, measures taken by the breeder or licensee to meet demand, and the applicant’s capacity and technical competence to produce and market it.
5. Adjournment (section 49): if the breeder shows reasonable cause for inability to produce on a commercial scale and has taken immediate measures, the hearing may be adjourned for up to twelve months in aggregate.
6. Terms (sections 50–51): the Authority fixes the duration (never beyond the remaining term), secures reasonable compensation to the breeder having regard to his breeding expenditure, and ensures the licensee can supply farmers timely and at reasonable price; reproductive material may be made available from the National Gene Bank. A compulsory licence does not authorise import where that would infringe.
7. Revocation and modification (sections 52–53) where the licensee fails to comply or circumstances change.
8. Failure to supply seed to a compulsory licensee is a ground for revoking the breeder’s protection (section 34(e)).

Compulsory licensing reflects TRIPS Article 31 flexibilities and UPOV’s permission to restrict the right for reasons of public interest. Its main value is as a check: the possibility of a licence gives the Authority a hold over seed supply and price.

2. Infringement (section 64)

A right established under the Act is infringed by a person who:

1. not being the breeder or a registered agent or licensee, sells, exports, imports or produces the variety without the breeder’s permission, or outside the scope of a registered licence or agency without the permission of the licensee or agent; or
2. uses, sells, exports, imports or produces any other variety under a denomination identical with or deceptively similar to the registered denomination in a way that causes confusion in the mind of the general public in identifying the registered variety.

Infringement is subject to the Act’s other provisions: research use (section 30), the farmers’ rights in section 39(1)(iv) (unbranded seed), and the innocent-farmer protection in section 42.

3. Civil remedies (sections 65 to 67)

• Forum: no suit for infringement, or relating to any right in a registered variety, may be instituted in a court inferior to the District Court within whose local limits the cause of action arises (section 65). Commercial disputes of the specified value go to the Commercial Courts.
• Relief (section 66(1)): an injunction and, at the plaintiff’s option, either damages or a share of the profits.
• Interim relief (section 66(2)): including an ex parte injunction, and interlocutory orders for discovery of documents, preservation of infringing variety or evidence, and attachment of the defendant’s property to secure the eventual award.
• Scientific adviser (section 67): the court may appoint an independent scientific adviser on questions of fact or science, for example whether the defendant’s plants are the registered variety (often resolved by DNA fingerprinting or grow-out tests).
• Farmers (section 42): no relief may be granted against a farmer who proves he was not aware of the right at the time.

4. Offences and penalties (sections 68 to 77)

Section 68 reserves the use of a registered denomination to the breeder and his registered agents and licensees, and explains what “applying” a denomination means (to the variety, to its package, in advertisements, invoices and catalogues). Section 69 defines falsely applying a denomination: applying it or a deceptively similar one without the breeder’s assent, or using a package bearing it to pack another variety. The burden of proving the breeder’s assent lies on the accused.

Further provisions:

• Section 74: nothing is an offence if it is permissible under the Act, so a farmer’s exercise of section 39 rights cannot be criminal.
• Section 75: an employee acting in the ordinary course of employment, without intent, after reasonable precautions, and who discloses on whose behalf he acted, is acquitted.
• Section 76: where the accused pleads invalidity of the registration, the court may adjourn to allow a rectification application, and stays proceedings until it is decided.
• Section 77: offences by companies make the company and every person in charge liable, unless the person proves lack of knowledge or due diligence; directors and officers whose consent, connivance or neglect is shown are also liable.
• Section 42 bars cognizance of an offence against an innocent farmer.

5. Assessment

The criminal provisions target spurious seed sold under a registered name, the real problem for Indian farmers, rather than farmer-level seed saving. The civil remedies are standard IP remedies. The weakness is enforcement: District Courts lack familiarity with variety identification, and DNA-based tests are not yet routine. Compare the Seeds Act, 1966 and the long-pending Seeds Bill, which deal with seed quality rather than ownership.

How this is examined

For licences and remedies, cover the three kinds of licence (with sections 47–51 in detail), then section 64 and the remedies in sections 65–67, and the farmer exceptions. For offences, use the table with the exact penalty ranges, then sections 74–77.