Registration of Plant Varieties: DUS, Exclusions, Opposition and Revocation

1. Registrable varieties (section 14)

Any person entitled under section 16 may apply to register a variety:

1. of the genera and species notified by the Central Government under section 29(2), which covers new varieties and EDVs;
2. which is an extant variety; or
3. which is a farmers’ variety.

A new variety must be novel, distinct, uniform and stable (section 15(1)); an extant variety must meet the DUS criteria specified by regulations (section 15(2)). Protection is limited to notified crops, and the list has been extended over time from major field crops to vegetables, fruits, flowers, plantation crops and trees.

2. Non-registrable varieties

• Public order, morality, health and environment (section 29(1)): no variety may be registered where prevention of its commercial exploitation is necessary to protect public order or public morality or human, animal and plant life and health, or to avoid serious prejudice to the environment. The language mirrors TRIPS Article 27(2).
• Harmful technology (section 29(3)): no variety involving any technology injurious to the life or health of human beings, animals or plants may be registered. The Explanation says “any technology” includes genetic use restriction technology and terminator technology. The applicant must file an affidavit that the variety contains no gene or gene sequence involving terminator technology (section 18(1)(c)).
• Non-notified species: a new variety of a genus or species not notified under section 29(2) cannot be registered; and a variety of a species deleted from the list in the public interest is not eligible (section 29(4)–(5)).
• Failure of DUS or novelty.
• Unacceptable denomination (section 15(4)): a new variety is not registered if its denomination is not capable of identifying it; consists solely of figures; is liable to mislead or confuse about the variety’s characteristics, value or identity or the breeder’s identity; is not different from every denomination of a variety of the same or a closely related species; is likely to deceive or cause confusion; is likely to hurt religious sentiments; is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950; or comprises solely or partly a geographical name, unless the Registrar considers the use honest.

3. Conditions for registration: DUS (section 15(3))

• Novelty: not sold in India more than one year, or abroad more than six years (trees and vines) or four years (others), before filing.
• Distinctiveness: clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing. An application for PBR or for entry in an official register in a convention country makes a variety a matter of common knowledge from the date of that application, if it leads to grant.
• Uniformity: sufficiently uniform in its essential characteristics, subject to the variation that may be expected from its propagation.
• Stability: essential characteristics remain unchanged after repeated propagation or, for a particular cycle of propagation, at the end of each cycle.

DUS testing is done in the field, usually over at least two growing seasons at designated test centres (ICAR institutes and agricultural universities), using crop-specific guidelines that follow UPOV test guidelines. The applicant must supply seed for testing (section 19).

4. Who may apply and the application

Section 16 allows application by: the person claiming to be the breeder; his successor; his assignee; any farmer, group or community of farmers claiming to be the breeder; a person authorised by any of them; or any university or publicly funded agricultural institution claiming to be the breeder. Applications may be individual or joint. Section 31 allows priority from an application in a convention country made within twelve months.

Section 18 requires the application to: relate to a variety; state its denomination; be accompanied by the anti-terminator affidavit; give the complete passport data of the parental lines and the geographical location in India from which the genetic material was taken, with information about any contribution of a farmer, village community, institution or organisation; describe the variety’s novelty and DUS characteristics; pay the fee; and contain a declaration that the genetic or parental material was lawfully acquired. Section 40 adds a duty to disclose use of genetic material conserved by tribal or rural families; wilful concealment allows the Registrar to reject the application.

5. Examination and acceptance (section 20)

The Registrar may accept the application absolutely or subject to conditions, require amendment, or reject it after giving the applicant a reasonable opportunity to be heard.

6. Advertisement, opposition and counter-statement (section 21)

1. On acceptance, the application is advertised, with any conditions, the specifications of the variety and photographs or drawings, inviting objections (section 21(1)).
2. Any person may, within three months from the date of advertisement and on payment of the fee, give notice of opposition (section 21(2)).
3. Grounds of opposition (section 21(3)):
   1. the opponent is entitled to the breeder’s right as against the applicant;
   2. the variety is not registrable under the Act;
   3. the grant of the certificate may not be in the public interest; or
   4. the variety may have an adverse effect on the environment.
4. The Registrar serves the notice on the applicant, who must file a counter-statement of the grounds on which he relies within two months of receiving it; if he does not, he is deemed to have abandoned the application (section 21(4)).
5. The counter-statement is served on the opponent (section 21(5)); both sides file evidence and may be heard (section 21(6)).
6. The Registrar decides whether, and on what conditions, registration should be permitted, and may take into account a ground of objection whether or not the opponent relied on it (section 21(7)).
7. A non-resident opponent or applicant may be required to give security for costs (section 21(8)).

7. Registration and certificate (section 24)

If there is no opposition within time, or the opposition is rejected, the Registrar registers the variety (other than an EDV, which follows section 23) and issues a certificate, sending a copy to the Authority for benefit sharing (section 26). The certificate is valid initially for nine years for trees and vines and six years for other crops, renewable on review, subject to a total of eighteen years for trees and vines, fifteen years from Seeds Act notification for extant varieties, and fifteen years for others (section 24(6)). The Registrar may issue directions to protect the breeder against abusive acts between filing and decision (section 24(5)).

8. Revocation (section 34)

On application by any person interested, the Authority may revoke protection on these grounds: grant based on incorrect information; grant to a person not eligible; failure to provide required information, documents or material; failure to provide an alternative denomination; failure to supply seed to a compulsory licensee; non-compliance with the Act or rules; failure to comply with the Authority’s directions; or grant not in the public interest. The breeder must be given an opportunity to object and be heard. The PepsiCo potato case (see the biopiracy note) turned on section 34.

9. Surrender, forfeiture, rectification and correction (sections 33 and 35 to 37)

• Surrender (section 33): the breeder may at any time offer to surrender the certificate by notice to the Registrar. The Registrar notifies every registered agent and licensee, any of whom may oppose within the prescribed period. After hearing the breeder and the opponents, the Registrar may accept the offer and revoke the certificate. The notice to licensees protects those who have invested in producing the variety.
• Forfeiture for unpaid annual fee (section 35): with the prior approval of the Central Government, the Authority may impose an annual fee on breeders, agents and licensees, based on the benefit or royalty earned from the variety. If the fee is unpaid for two consecutive years and a notice is not complied with, the Authority declares all protection under the certificate forfeited. Arrears are recoverable as arrears of land revenue.
• Cancellation or change of registration (section 36(1)): on application by any person aggrieved, the Registrar may cancel or change a certificate for contravention of the Act or breach of a condition of registration.
• Rectification (section 36(2) to (4)): any person aggrieved by the absence or omission of an entry, an entry made without sufficient cause, or an entry wrongly remaining on the Register may apply, and the Registrar may make, expunge or vary the entry. He may decide any connected question and may act on his own motion after notice and hearing.
• Correction (section 37): on the breeder’s application, the Registrar may correct errors in the breeder’s name, address or description or any other entry, record a change in them, or cancel the entry of the variety; on the application of a registered agent or licensee, after notice to the breeder, he may correct their particulars.
• Change of denomination (section 38): the breeder may apply to alter the denomination without substantially affecting its identity, on terms that avoid conflict with other breeders’ rights.

Revocation (section 34) is the Authority’s power on substantive grounds; cancellation, rectification and correction (sections 36 and 37) are the Registrar’s powers over the Register. Orders of either on registration matters are appealable to the High Court under section 56 after the Tribunals Reforms Act, 2021.

How this is examined

For registrable and non-registrable varieties, list section 14, then section 29 and the denomination bars, then the DUS conditions. For opposition, give the three-month window, the four grounds, the two-month counter-statement and the hearing. A good answer contrasts the public-interest and environmental grounds with UPOV practice.