CAS-IP National Partners Initiative (NPI)
Institutionalization of Intellectual Property Management:
Case Studies from four Agricultural Research Institutions in
Developing Countries
- A Compilation of Four Working Papers
Intellectual Property Management Regime in the Indian National Agricultural Research
Systems (R. Kalpana Sastry, India)
Establishment of a Plant Breeders’ Rights System in Tanzania: Achievements and
Challenges (Patrick Ngwediagi, Tanzania)
A review of the Nigerian System of Intellectual Property (Victor M. Ibigbami and
Christopher U. Orji, Nigeria)
Establishing a Technology Transfer Office in a developing country academic institution:
Experience of Moi University (Antony S. Mbayaki, Kenya)
CAS-IP C/O Bioversity International
Via dei Tre Denari, 472a
00057 Maccarese (Rome) Italy
Tel.: (39) 066118.1 - Fax: (39) 0661979661
www.cas-ip.org

The individual case studies and the compilation are licensed under the Creative Commons
Attribution-Noncommercial-Share Alike 3.0 Unported License. To view a copy of this license,
visit http://creativecommons.org/licenses/by-nc-sa/3.0 or send a letter to Creative Commons,
171 Second Street, Suite 300, San Francisco, California, 94105, USA.
Recommended citation for the compilation:
CAS-IP NPI. 2009. Institutionalization of Intellectual Property Management: Case Studies
from four Agricultural Research Institutions in Developing Countries. CAS-IP, Rome, Italy.
Recommended citation for individual case studies:
R.Kalpana Sastry. 2009. Intellectual Property Management Regime in the Indian National
Agricultural Research Systems. In: CAS-IP NPI. 2009. Institutionalization of Intellectual
Property Management: Case Studies from four Agricultural Research Institutions in
Developing Countries. CAS-IP, Rome, Italy.
Patrick Ngwediagi. 2009. Establishment of a Plant Breeders’ Rights System in Tanzania:
Achievements and Challenges. In: CAS-IP NPI. 2009. Institutionalization of Intellectual
Property Management: Case Studies from four Agricultural Research Institutions in
Developing Countries. CAS-IP, Rome, Italy.
Victor M.Ibigbami, Christopher U.Orji. 2009. A Review of the Nigerian System of Intellectual
Property. In: CAS-IP NPI. 2009. Institutionalization of Intellectual Property Management: Case
Studies from four Agricultural Research Institutions in Developing Countries. CAS-IP, Rome,
Italy.
Antony S.Mbayaki. 2009. Establishing a Technology Transfer Office in a Developing Country
Academic Institution: Experience of Moi University. In: CAS-IP NPI. 2009. Institutionalization
of Intellectual Property Management: Case Studies from four Agricultural Research
Institutions in Developing Countries. CAS-IP, Rome, Italy.
The CAS-IP National Partners Initiative (CAS-IP NPI) and the publication of the working
papers have received funding from the Dutch Ministry of Foreign Affairs (Cultural Co-
operation, Education & Research Department) under grant agreement DCO/OC-354/07
For more information please contact:
CAS-IP C/O Bioversity International
Via dei Tre Denari, 472a
00057 Maccarese (Rome) Italy
Tel.: (39) 066118.1 - Fax: (39) 0661979661
http://www.cas-ip.org
CAS-IP is a system office unit of the CGIAR
b

Institutionalization of Intellectual Property Management:
Case Studies from four Agricultural Research Institutions in
Developing Countries
- A Compilation of Four Working Papers written by:
R.Kalpana Sastry
National Academy of Agricultural Research Manangement, Hyderabad-50040. Andhra Pradesh. INDIA
Patrick Ngwediagi
Registrar of Plant Breeders’ Rights, Ministry of Agriculture Food Security and Cooperatives, Dar Es
Salaam, TANZANIA
Victor M. Ibigbami
National Biotechnology Development Agency (NABDA) 16, Dunukofia Street, Area 11, Garki,
P.M.B.5118 Wuse, Abuja, NIGERIA
Christopher U. Orji
National Biotechnology Development Agency (NABDA) 16, Dunukofia Street, Area 11, Garki,
P.M.B.5118 Wuse ,Abuja, NIGERIA
Antony S. Mbayaki
Technology Transfer Manager, Moi University, Eldoret, KENYA.PO Box 3900-30100
Studies conducted in 2008.
Online publication of working papers: April 2009.
c

About Authors
Kalpana Sastry received her undergraduate degree from the University of Delhi in Botany
and her Masters from Indian Agricultural Research Institute, New Delhi in the area of
Mycology and Plant Pathology. She completed her PhD in the same subject and joined the
Agricultural Research Service, ICAR, New Delhi in 1984. She is presently working as a
Principal Scientist at National Academy of Agricultural Research Management, Hyderabad,
India. Her work focuses on agricultural innovations, intellectual property management
systems and in research centring policy issues in this area for the national agricultural system
in India. In addition, she is part of team for facilitating IP portfolios for stakeholders like
farmers, traders’ organizations and scientists. Patent Facility services through her team have
been rendered to several scientists and farmers in National Agricultural Research System of
India. She is recognized faculty on IP and WTO issues in Agriculture at national and
international fora. As a Fulbright Senior Research Scholar at Cornell University, during 2008,
she worked on “Policy and strategy options for nanotechnology in agricultural and food
systems\" against the background of environmental, social and intellectual property
implications. This study aimed to facilitate internalization of such technologies in agricultural
research and innovation systems. Early results gained in this study are now being extended
further to assess the use of this emerging technology into Indian agriculture systems.
Patrick Ngwediagi graduated from Wonsan Agricultural University in DPR Korea where he
received his first degree in Agronomy in 1987. He obtained his Masters degree in the subject
of Seed Technology from the University of Edinburgh, Scotland, United Kingdom in 1992. He
has also undertaken short and medium term training on seed science and technology, plant
breeding and plant variety protection. Since 2005 Mr. Ngwediagi has been the Registrar of
Plant Breeders’ Rights of the Ministry of Agriculture Food Security and Cooperatives in
Tanzania. His main responsibility is to grant plant breeders’ rights and to oversee the
implementation of the country’s Plant Breeders’ Rights Act of 2003. Between 1993 and
January 2005 he worked as the Research Coordinator and Head of the National Vegetable
Seed Programme at the Horticultural Research Institute-Tengeru where he led a team of
experts to develop a number of now most popular vegetable varieties and established a
formal vegetable seed production system using those varieties and other local varieties.
Between 1998 and 2005 while heading the Vegetable Seed Programme Mr. Ngwediagi
trained many framers on how to produce quality declared seed (QDS) on their own farms for
their own use as well as selling to neighbouring farmers. He is a member of the National
Variety Release Committee and National Seed Committee which is the highest organ that
advises the government on matters related to development of the seed industry.
Victor M. Ibigbami received a B. Sc. in Soil Science and an M. Sc. in Soil and Water
Conservation both from the University of Ibadan, Nigeria. He also attended numerous short
courses including one on Biodiversity, Biotechnology and Law jointly organized by Global
Biodiversity Institute and International Institute of Tropical Agriculture (IITA), Ibadan, Nigeria.
After a short career as a lecturer he moved to become a policy maker in the Ministry of
Science and Technology of Nigeria. He is now Director, Agricultural Biotechnology and
Bioresources Department, National Biotechnology Development Agency (NABDA), Abuja,
Nigeria. In this capacity he is also responsible for formulating policies on Intellectual Property
in biotechnology and related issues for the institution and the country.
Christopher U. Orji received a bachelor’s degree in Animal Science and a Master of
Business Administration (MBA) from the University of Nigeria, Nsukka. His working career
started in Nigeria’s World Bank sponsored Agricultural Development Project (ADP) where he
served as an extension officer. He is presently working in the Agricultural Biotechnology
Department of the National Biotechnology Development Agency where his responsibilities
include formulating institutional and national Intellectual Property Policies in biotechnology
and agriculture to meet the WTO expectations.
d

Mbayaki Antony obtained his BSc. Degree in Electrical Engineering in 1991 from the
University of Nairobi in Kenya. He worked in the private sector shortly as a maintenance
engineer before joining the public service as a patent examiner with Kenya Industrial
Property Institute (KIPI) for over 11 years where he was also mandated with creation of
intellectual property awareness in the country as the Assistant Education and Outreach
Coordinator. He joined Moi University in 2004 to establish an Intellectual property
management office on secondment from KIPI becoming a pioneer Technology Transfer
Manager in public universities and R&D institutions in Kenya. He has experience in patent
and other Intellectual Property drafting and prosecution. He has co-authored several
documents for World Intellectual Property Organisation (WIPO) and East African Regional
Programme and Research Network for Biotechnology, Biosafety and Biotechnology Policy
Development (BIOEARN), a project supported by the Swedish International Development
Agency (SIDA).
e

Preface
The National Partners Initiative (NPI) of CAS-IP is an innovative project which was
started in May 2007. Over the last two years, it has brought together approximately 40
Intellectual Property (IP) and technology transfer (TT) practitioners, working together, across
many countries and regions, in a sustained manner to improve their individual skills and
institutional capacities. The NPI has resulted in the recognition and confidence that
developing country IP professionals effectively serve the needs of agricultural institutions
engaged in research and development activities and enhance the livelihoods of rural
economies both in their local environment and at the international level.
1. The Activities of NPI Initiative
During the last two years, the NPI project has focused on activities relating to skill
development of the partners and sharing of practical experiences through interaction, training
workshops and mutual discussions on topics such as project proposal writing, authorship,
communication skills and developing technical skills encompassing the theme of IP/TT
management. In an effort to document practices and experiences as a mechanism to
enhance the skills of the NPI members and the level of IP/TT practice in institutions, the
project has started an initiative of giving opportunities for case studies projects in individual
countries. We believe that these case studies will help to create a platform for discussion of
issues confronting researchers and other stakeholders in balancing the needs of IP regimes
in their domestic environments and in confronting challenges in emerging markets at the
global level. The broad objectives of the case studies are to understand evolving processes,
challenges being encountered in institutionalization processes of IP regime in public funded
research organizations or academic institutions through the case study approach
2. Case Study Approach
During 2008, case studies from four national partners located in India, Tanzania,
Kenya and Nigeria were sponsored by the CGIAR-CAS-IP NPI Project. These cases were
selected as they proposed to look at IP management strategies being developed in the
national environments. In 2009, following this initial set, a second sponsorship has been
granted to five more NPI partners representing Costa Rica, Indonesia, Malaysia, Burkina
Faso and Peru. By the end of three years, NPI members aim to share country experiences
from twelve developing countries in the areas surrounding IP policy making, policy
implementation and use of IPRs by researchers for leveraging more benefits to the
stakeholders, people, institutions and countries.
The principal objective of the four studies from the first year was to describe and
evaluate the attempts being made in strengthening IP management at the institutional level
and to understand the implementation and enforcement initiatives. The results of the case
studies have been prepared as four working papers in the present compilation for year 2008.
The four working papers are on the following topics:
Intellectual Property Management Regime in the Indian National Agricultural
Research Systems (R. Kalpana Sastry, India)
Establishment of a Plant Breeders’Rights System in Tanzania: Achievements and
Challenges (Patrick Ngwediagi, Tanzania)
A review of the Nigerian System of Intellectual Property (Victor M. Ibigbami and
Christopher U. Orji, Nigeria)
Establishing a technology transfer Office in a developing country academic
institution: Experience of Moi University (Antony S. Mbayaki, Kenya)
f

2.1 Intellectual Property Management Regime in the Indian National Agricultural
Research Systems
This case study presents an overview of the changing environment for public
research organizations in the Indian Agricultural Research System with respect to
intellectual property management. In its commitment to cater to its broader societal
objectives, the system has been challenged with growing sovereignty and restrictions
on the sharing of germplasm, privatization of knowledge, and pressures to reduce
demands on public finances through the commercialization of research products.
Starting with a review of the relevant legal and policy documents to understand the
background of the obligations at national and at the international level, followed by a
brief review of the role and functions played by some statutory agencies in India, the
implications for the National Agricultural Research System were studied. Against the
realization of need for IP policy for the large system, the provisions and governance
model of the new IP policy of the national agricultural organization like the Indian
Council of Agricultural Research (ICAR) was analyzed. Then the implementation of
guidelines now in place for two constituent institutes Project Directorate of Poultry
(PDP) and Directorate of Rice Research (DRR), animal- based and crop-based
institutes respectively, were studied in detail from the IP policy perspective. The study
highlights on the implementation of guidelines, structural adjustments in decision
making activities in IP management at institutes and at understanding the specific
issues of IP management relevant to the research mandate of these institutes.
2.2 Establishment of Plant Breeders’ Rights System in Tanzania: Achievements and
Challenges
The study is on establishment of plant breeders’ rights system in Tanzania:
achievements and challenges seeks to review appropriateness of the current plant
breeders’ rights system in Tanzania and its contribution to an effective sui generis
system, and attempts to formulate an appropriate model in line with the TRIPS
Agreement. The results indicate a need for a benchmark review of process of activities
to be useful towards the creation and operationalization of a sui generis system. The
involvement of the stakeholders in this exercise in Tanzania proved to be very useful
exercise and should be continued as many other developing countries develop models
to suit the needs in their niche areas. The findings suggest a strong need of such
actions to enable policy makers take prudent decisions while complying with the TRIPs
agreement. Issues of benefit sharing and access to biological resources especially in
PVP context need to evolve if the IP protection systems are to bring the needed
changes for the stakeholders.
2.3 A Review of the Nigerian System of Intellectual Property
Nigeria is taking steps to comply with the new IP regime ushered in by the
WTO TRIPS and supported by African Union (AU). The issues such as Plant Variety
Protection (PVP) and patent for microorganisms are technological in nature and the
country should exercise the sui generis option provided in the TRIPS agreement to
develop suitable laws. It is necessary that such laws may have instruments to be able
to be used beyond the country’s existing IP framework like through the aegis of AU
Model Law.
This study also points to the need to amend the National Crop Varieties and
Livestock Breeds Registration and Release Committee Decree 33 of 1987 in Nigeria to
provide space for Plant Variety Protection (PVP), Animal Breeders Rights, and Farmers’
Rights. The Committee is currently administered by the National Centre for Genetic
Resources and Biotechnology (NACGRAB) in the Ministry of Science and Technology
and institutional mechanism should be put in place.
Analysis of two grants relating to biotechnological related inventions and
consequent efforts for licensing the technology indicate the need for regulation of such
inventions in terms of best practices methods. Providing strong legal mechanisms for
biotechnological inventions through National Biotechnology Law may lead to
g

institutionalizing the norms for biosafety through institutions like National Biotechnology
Development Agency (NABDA). This will help regulate research on microorganisms in
terms of IP creation, benefit sharing and on biopharmaceuticals and nutraceuticals
which the patent law presently does not address. It is envisaged that such measures
would lead to increased investment in technology development and the resulting
products can better the lives of the people of Nigeria.
2.4 Establishing a Technology Transfer Office in an Academic Institution in
a Developing Country: Experience of Moi University
The study relates to the experience of Moi University (in Eldoret Kenya) on the
establishment of the first technology transfer office in a university or public research
institution in Kenya. This study indicates the efforts of the policy makers leading to the
establishment of the office at the institutional level. Nuances in the process of
establishment, the challenges that faced and continue to open up, the manner of
countering and overcoming have been discussed. The success and the roadblocks
during the process serve as vital lessons for several other organizations that are now in
the process of establishing Technology Transfer Office (TTO) in academic institutions
especially in Africa. The study indicates that the benefits accrued through such offices
placed in institutions of higher learning are enormous. If technology transfer has to be
disseminated to reach to end users in a climate of ‘win-win’ situation, it is necessary to
institutionalize the technology transfer in all institutes. Since the provisions in law have
to be actualized and enforced, TTOs will have a major role in overseeing that potential
and actual through sound IP management reach all stakeholders.
3. Recommendations
3.1 Designing Institutionalization of IP Regimes
In the four case studies, the policies being developed in representing
institutions are based on following criteria. These are to:
(a) understand the need for compliance with international obligations in the national
administration and enforcement of IPRs
(b) attempt to ‘balance’ incentives for IP rights holders with access for the users of
subject matter covered by IPRs
(c) recognize the emerging levels of domestic creation of intellectual property in these
countries
(d) rationalize the flow of benefits IPRs through adoption of “holistic” approaches, and
(e) develop relevant institutions for managing the assets and address the
institutionalization of IP policies.
The four case studies clearly indicated that such initial attempts have been
started, both at the national and institutional levels to achieve these objectives.
3.2 Institutional Challenges in Developing Countries
The four case studies examine current levels of institutional capacity for
addressing the challenges related to:
(a) formulation of policy and legislation on IP; and
(b) administration and enforcement of IPRs at the national level in line with international
obligations.
In all these four studies, the lack of IP expertise in the institutions emerges as a
major challenge. This in turn results in a serious shortage of a professional approach to
issues of IP management in research institutions. It is essential to learn from these
h

experiences that development of institutional capacity for policy coordination across
government and participatory processes for IP policymaking and enforcement (with
active participation of all stakeholders) is therefore, vital. While levels of awareness
creation may vary in each of four studies, it is important to understand that this issue
needs to be strengthened. These efforts will ensure a continuum after the policy
development step to actual institutionalization of the policy. Implementation through
regulations, creating new institutional arrangements and modernization of office
operating procedures are indeed necessary to nurture the IP climate for which trained
manpower are essential.
3.3 Maximizing the Process for Benefits of IP policy
The case studies indicate means to exploit the maximum possible benefits in
terms of cost reduction and administrative efficiency from existing regional and
international co-operation mechanisms. The institutions in three countries within the
African region, would benefit through membership of ARIPO or OAPI and extend the
lessons from these initial experiences. More work on policy research and analysis on
intellectual property subjects in the national interest (eg protection of plant varieties;
traditional knowledge and folklore; technology transfer etc) within academic
organizations, policy think-thank institutes and other stakeholder organizations in civil
society needs to be undertaken to catalyze the processes of intellectual property
policy and legislative development and enhance the economies of the developing
countries. Similarly, it is important that studies to understand the challenges of IP
management may need to be undertaken at institutional level for all sectors of
agricultural systems viz fisheries, engineering, veterinary, horticulture etc., This sub –
sectorial studies would be essential especially for the large NARS sector like that in
India. Such in-depth analyses will make decision making for corrective measures
more scientific based and more rational. Concurrently, these will ensure that policies
developed are successfully implemented at the institutional, organizational and
country levels. Later these can be transferred at the transnational levels in SAARC,
ASEAN and other related groups.
3.4 Facilitating Platforms for Maximizing the Process for Benefits of IP policy
All the four case studies under discussion here reflect that IP policy and
governance is evolving in the respective countries. The studies indicate that the
process is constantly changing due to global and national debates and institutions
need to be aware of this. Hence there needs to be a platform to discuss these. Since
the pace of IP regime differs in each country against the background of common
issues, platforms of discussions and opinion sharing would be vital and necessary to
implement the governance models. For instance, the experience of Farmers Rights
so vital to developing countries and has been much debated in all platforms. The
perspectives from India and Tanzania need to be understood and other countries
should evolve taking gains from these experiences. Similarly, issues of transfer of
technology as reflected in the experience of Nigeria evoking major change in the
domestic laws are pointers for several countries in the African region who do not have
a system in place as yet. Keeping the institutional environment in developing
countries, the case of Moi University reflects the need for change in mindsets of
people engaged in technology transfer process in innovation life cycle processes.
*****
i

Intellectual Property Management Regime in the
Indian National Agricultural Research Systems
A Case Study
Under NAARM-CAS-IP NPI Collaboration Project
R.Kalpana Sastry
Principal Scientist
NAARM
Email: kalpanas.regulagedda@gmail.com
kalpana@naarm.ernet.in
National Academy of Agricultural Research Management
Indian Council of Agricultural Research
Rajendranagar,Hyderabad 500407, Andhra Pradesh, India
Phone 091+40+24581300 & 24581444
Fax 091+40+24015912 & 091+40+24015926
E-Mail:naarm.hyd@naarm.ernet.in

Contents
Executive Summary
Acronyms
Chapter I Introduction 8
1.1 Background
1.2 Goal of the Study
1.3 Purpose of the Study
1.4 Evaluation Process
1.5 Outline of the Report
Chapter 2 Intellectual Property Rights and Agricultural R&D 10
Scenario
2.1 Research and Development Scenario in India
2.2 Impacts of Global Changes
2.3 Impact on Agriculture R&D
Chapter 3 Review of Relevant Legal and Policy Documents 13
3.1 Global Context
3.2 Indian Context
3.3 Summary of Provisions under Various Acts for IPs in India
Chapter 4 ICAR System 29
4.1 The Indian Council of Agricultural Research (ICAR)
4.2 Partners and Mode of Functioning
4.3 New Role
4.4 Need for Institutionalization of IP Policy
4.5 ICAR Guidelines for Intellectual Property Management and
Technology Transfer / Commercialization
Chapter 5 Project Directorate on Poultry (PDP) 40
5.1 Background
5.2 Genesis of PDP
5.3 Mandate
5.4 Governance Model of PDP
5.5 Research Activities
5.6 Consultancy, Patents, Commercialization of Technology
5.7 IP Activities
5.8 IP Check list
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 2

Chapter 6 Directorate of Rice Research (DRR) 49
6.1 Background
6.2 Genesis of DRR
6.3 Mandate
6.4 Governance Model of DRR
6.5 Research Activities
6.6 Activities under IP and Commercialization of Technology
6.7 IP Check list
Chapter 7 Conclusion 58
Annexure i-ix 59
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 3

Executive Summary
This case study presents an overview of the changing environment for public research
organizations in the Indian Agricultural Research System with respect to intellectual property
management. The National Agricultural Research System (NARS) in India continues to fulfil its
commitment to cater to its broader societal objectives. However, the dimensions of dealing with
growing sovereignty and restrictions on the sharing of germplasm, privatization of knowledge, and
pressures to reduce demands on public finances through the commercialization of research
products are new challenges to the system.
A review of the relevant legal and policy documents was done to understand the
background of the obligations at national and at the international level. This was followed by a
brief review of the role and functions played by some statutory agencies in India that are actively
involved in IP facilitation. Later the National Agricultural Research System was studied with an
intention to understand the complexities and magnitude vis-a-vis the IP policy. Then the
provisions and governance model of the new IP policy of the ICAR was analyzed. Thus, the
principles and strategies for intellectual property management as adapted from the Laws in India
through the ICAR guidelines on IP and Technology Management are outlined.
Against this background, two constituent institutes of ICAR, namely, Project Directorate of
Poultry (PDP) and Directorate of Rice Research (DRR), animal- based and crop-based institutes
respectively, were studied in detail from the IP policy perspective. The study highlights on the
implementation of guidelines, structural adjustments in decision-making activities in IP
management at institutes and at understanding the specific issues of IP management relevant to
the research mandate of these institutes.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 4

Acronyms
ADG Assistant Director General
AICCIP All India Coordinated Crop Improvement Project
AICRIP All India Coordinated Rice Improvement Project
AICRP All India Coordinated Research/Network Projects
AIMS Agriculturally Important Microbes
AnGR Animal Genetic Resources
ATMC Agro-Technology Management Centre
AVT Advance Varietal Trial
BARC Bhabha Atomic Research Centre
CARI Central Avian Research Institute
CAS Central Advisory Service
CBD Convention on Biological Diversity
CDFD Centre for DNA Finger Printing and Diagnostics
CGIAR Consultative Group on International Agricultural Research
CGPDT The Controller General of Patents Designs and Trademarks
CIMMYT Centro Internacional de Mejoramiento de Maíz y Trigo
CITES Convention on Trade in Endangered Species
CODEX Codex Alimentarius
CP Cartagena Protocol on Biosafety
CSCS Central Sub-Committee on Crop Standards
CSIR Council of Scientific & Industrial Research
CTMC Central Technology Management Committee
DARE Department of Agriculture Research and Education
DBT Department of Biotechnology
DNA Double helix Nucleic Acid
DRR Directorate of Rice Research
DST Department of Science and Technology
DUS Distinctness, Uniformity and Stability
ENV Extent Notified Rice Varieties
FAO Food and Agriculture Organization
FV Farmers' Variety
GADVASU Guru Angad Dev Veterinary and Animal Sciences University
GATT General Agreement on Trade and Tariffs
GDP Gross domestic product
GI Geographical Indications
GIR Geographical Indications Registry
GMO Genetically Modified Organisms
GPA Global Plan of Action
GURT Genetic Use Restriction Technology
IARI Indian Agricultural Research Institute
IC Integrated Circuit
ICAR Indian Council of Agricultural Research
ICRISAT International Crops Research Institute for Semi-Arid Tropics
ICT Information and Communication Technology
IET Initial Evaluation Trial
IFPRI International Food Policy Research Institute
IP Intellectual Property
IPAB Intellectual Property Appellate Board
IPC International Patent Classification
IPPC International Plant Protection Convention
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 5

IPR Intellectual Property Rights
IRC Institute Research Council
IRRI International Rice Research Institute
ITMC Institute Technology Management Committee
ITMU Institute Technology Management Units
ITPGRFA International Treaty on Plant Genetic Resources for Food And
Agriculture
IVRI Indian Veterinary Research Institute
IVT Initial Varietal Trial
KAU Kerala Agricultural University
KTKA Kerala Traditional Knowledge Authority
KVAFSU Karnataka Veterinary, Animal and Fisheries Sciences University
KVK Krishi Vigyan Kendras
LMO Living Modified Organisms
MDG Millennium Development Goals
MHRD Ministry of Human Resource Development
MoCI Ministry of Commerce and Industry
MoCIT Ministry of Communications and Information Technology
MoEF Ministry of Environment and Forests
MOU Memorandum Of Understanding
MTA Material Transfer Agreement
NAARM National Academy of Agricultural Research Management
NAIP National Agricultural Innovation Project
NARO National Agricultural Research Organization
NARS National Agricultural Research Systems
NBA National Biodiversity Authority
NBAGR National Bureau of Animal Genetic Resources
NBFGR National Bureau of Fish Genetic Resources
NBPGR National Bureau of Plant Genetic Resources
NDUS New Distinctness, Uniformity and Stability
NEH North Eastern Hill region
NIIPM National Institute of Intellectual Property Management
NPA National Policy on Agriculture
NPI National Partner Initiative
NRSA National Remote Sensing Agency
NRV Notification and Release of Varieties
PCT Patent Co-operation Treaty
PDP Project Directorate of Poultry
PGRFA Plant Genetic Resources for Food and Agriculture
PIS Patent Information System
PPV &FR Protection of Plant Varieties and Farmers Rights
PVP Plant Variety Protection
QRT Quinquennial Review Team
QTL Quantitative Trait Locus
SAU State Agricultural Universities
SBB State Bio-diversity Board
SCIP Supervisory Council on Intellectual Property
SICLD Semiconductor Integrated Circuits Layout-Design
SICLDR Semiconductor Integrated Circuits Layout-Design Registry
SKUAST Sher-e-Kashmir University of Agricultural Sciences and Technology
of Kashmir
SPS Sanitary and Phyto-Sanitary Measures
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 6

SRC Staff Research Council
SVRC State Variety Release Committee
SVVU Sri Venkateswara Veterinary University
TRIPS Trade Related Intellectual Property Rights
TQ Technical Questionnaire
UGC University Grants Commission
UPOV International Union for the Protection of Plant Varieties
USA United States of America
USC Unites States Code
USPTO United States Patent and Trademark Organization
VIC Variety Identification Committee
WCT WIPO Copyrights Treaty
WIPO World Intellectual Property Organization
WPPT WIPO Performances and Phonograms Treaty
WTO World Trade Organization
ZITMC Zonal Institute Technology Management Committee
OIE International Office of Epizootics
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 7

1 Introduction
1.1 Background
The National Academy of Agricultural Research Management (NAARM), a
constituent of Indian Council of Agricultural Research and also part of National Partner
Initiative (NPI) of Central Advisory System/Intellectual Property (CAS/IP) was invited by
CAS/IP to undertake a case study in order to understand the system and document the
lessons learnt, the challenges present and the experiences gained in the process of
operationalising the Intellectual Property (IP) management guidelines in the Indian NARS.
Accepting this invitation NAARM undertook the assignment with an aim at understanding and
explores modalities to improve the effectiveness of the IP management and technology
transfer guidelines in agriculture based public sector institutions in India.
1.2 Goal of the Study
The goal of the study is to contribute to improving the newly established policy
framework and guidelines for the systematic management of IP assets and technology
transfer in National Agricultural Research System (NARS) in India.
1.3 Purpose of the Study
The study aims at understanding and also explores modalities to improve the
effectiveness of the IP management and technology transfer guidelines in agriculture based
public sector institutions in India
1.4 Evaluation Process
The study involved collection and reviewing of existing literatures and documents
related to establishment and operationalization of the ICAR guidelines for IP management
and technology transfer /commercialization in Indian NARS.
Detailed information relevant to the objectives set was elicited through:
1.4.1 Information Collection
• Identifying the technology from two institutes in NARS for building a IP portfolio
• Review of relevant, legal and policy documents through secondary sources.
• Administration of questionnaire survey (Annexures i to iv).
• Interviews and discussions with IP practitioners, officials of the statutory bodies,
academicians, seed producers, farmers/group of farmers to obtain their views on
the need and implementation of IP guidelines.
• Participation and discussions in ICAR Training-cum-Workshop on IP and
Technology Management held at various institutes between June to December
2008.
• Visit both the constituent-institutes identified for the study and interact with
concerned sections.
• Critical analysis and synthesis of the collected information. This synthesis was
then discussed again with the concerned departments in the two institutes and a
consolidated checklist prepared.
1.4.2 Information Analysis
Based on the final discussions, a strategy for operationalising IP policy for these two
institutes was prepared.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 8

1.5 Outline of the Report
The report starts with a brief introduction to the IPR regime in India and its relevance
to agricultural systems. A review of the relevant legal and policy documents was done to
understand the background of the obligations at national and at the international level. This
was followed by a brief review of the role and functions played by some statutory agencies in
India that are actively involved in IP facilitation. In the fourth chapter, the National Agricultural
Research System was studied with an intention to understand the complexities and
magnitude vis-a-vis the IP policy. Then the provisions and governance model of the new IP
policy of the ICAR was analysed. Two constituent institutes, namely Project Directorate of
Poultry (PDP) and Directorate of Rice Research (DRR), animal- based and crop-based
institutes respectively were studied in detail from the IP policy perspective. Most of the
discussion has been focussed on the implementation of guidelines, structural adjustments in
decision-making activities in IP management at institutes and at understanding the specific
issues of IP management at these institutes.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 9

2. Intellectual Property Rights and Agricultural R&D Scenario
“An inventor had no special advantage from his own invention.
The patent system changed this; secured to the inventor, for a
limited time, the exclusive use of his invention; and thereby
added the fuel of interest to the fire of genius, in the discovery
and
production of new and useful things.”- Abraham Lincoln,
Second lecture on discoveries and inventions. February 11,
1859
Intellectual Property Rights (IPRs) can play a significant role in achieving the United
Nations Millennium Development Goals (MDGs), as they affect agricultural and rural
development in developing countries. The main impact of IPRs is through their relationship with
the transfer of traditional and modern agricultural technologies, and making IPRs support rather
than hinder sustainable development. However, developing countries like India have a less
homogeneous agro-socio-economic environment in which farmers operate. While it is now
accepted that IPRs can help stimulate economic growth and reduce poverty, there are still
inherent fears on a more negative impact of these in Indian Agriculture. The functioning of IPR
systems raises genuine concerns especially in the changing models of agricultural research,
which are now emerging in partnership mode with multiple agencies. All systems including the
public sector systems may incur considerable costs, time and money, and need to ensure
conducting research without infringing upon others’ IP rights, or defending their own IP rights
against other users. This raises questions as to whether the substantial costs involved in IP
litigation are a necessary price to pay for the incentives offered by the IP system, or whether
ways can be found to reduce them. How does this proliferation of Intellectual Properties (IPs)
affect competition and research? The concerns about the impact of IP are now becoming
important for research outcome auditing. The importance of intellectual property protection to
develop the scientific and technological capacity of developing countries and benefits derived
from the enhanced level of growth has now become a matter of common understanding. IP
systems management is strong determinant of economic growth of a nation as it helps
1
entrepreneurs recover costs of their innovative expenses .
2.1 Research and Development Scenario in India
Since independence, India has tried to effectively use science and technology for its
advancement as major economy in the world. The ushering of “Green Revolution” to support
the country’s efforts for increasing food productivity has been to due timely interventions based
on scientific acumen and technology. Despite these successes, newer challenges like declining
and degenerating natural resources, increasing population, and emphasis on quality food,
nutrition, healthcare and access to better livelihoods are surmounting. There is a growing need
to be able to meet these through adoption of newer technologies including biotechnological
approaches.
2.2 Impacts of Global Changes
Several changes at global level after advent of WTO, has started to build technology-
led enterprises with knowledge, as an asset fetching remunerations. Research today is poised
to come out of its sheltered existence to a more open era and help institutions face competition.
The agricultural research requires pursuit of excellence through innovation, technology
development, evaluation and refinement. While the IPR system can provide pursuit for effective
competition, there is bound to be some parallax. Issues like public good versus private right;
food and nutrition security versus industrial agriculture; public disclosure of
1
Laik, Kaushik.2005.Role of Intellectual Property in Economic Growth. Journal of Intellectual Property
Rights.Vol.10, November.2005.pp465-473.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 10

information/specification for seeking IPR versus holding back the know-how for better bargain in
licensing contracts are conflicting zones of operation. This is more challenging in public
research systems in agriculture. Until 1989 India refused to enter into detailed negotiations on
standards. But the threat of unilateral retaliatory trade sanctions played a role in changing the
stand of many developing countries on this matter 2 .Thus, India has amended all the relevant
legislations for the various forms of intellectual property as per the mandatory requirements of
World Trade Organization (WTO) by January 1, 2000 3 . The time frame for implementation was
2005 and the necessary rules for process of implementing the acts have now been completed.
2.3 Impact on Agriculture R&D
With the framing, enacting and operationalization of all these legislations, and India
becoming compliant with TRIPS, the onus is now on the research systems including those in
agriculture to use these provisions in their research programs and build strong IP instruments
where required. On the same plane, the issues towards defence of indigenous innovation and
the recognition of the contribution of our biodiversity are also interwoven in IP building for
researches based on agro-biodiversity. Articles 8 and 15 of the Convention on Biodiversity
(CBD) center on the theme of the sovereign rights of states over their natural resources. Article
8(j) 4 is particularly important because it recognizes the rights of indigenous farming
communities in India and their traditional knowledge and practices. Article 15 of the CBD,
regarding access to genetic resources, is also important for providing a framework for regulating
access to genetic resources and their use by foreign organizations and corporations. As per
TRIPS, the issue of ownership is to be determined by national law, by creating an institutional
framework and helping safeguarding the rights of local people. It would make it mandatory for
such corporations to share their profits with the indigenous communities.
2.3.1 The Last Ten Years
Notwithstanding these challenges, a decade after India launched it’s innovate-and
patent campaign, there are signs of early success 5 . The Science and Technology Policy of
the Government of India was announced in 2003 and aims at establishing an intellectual
property regime which maximized the incentives for the generation and protection of IP by all
types of innovators 6 . Similarly the predominantly publicly funded agricultural research system
in India needs a IP policy framework 7 and the National Agricultural Research System (NARS)
is in the process of developing IPR management strategies for effective transfer of IP
protected technologies 8 . The Protection and Utilisation of Public Funded Intellectual Property
2
For example, China, Brazil, India, Taiwan and Thailand were \"investigated\" under the `Special 301'
section of the US Trade Acts, and many other countries (e.g. Argentina, Andean Group countries) were
repeatedly threatened with trade sanctions in order to obtain changes in their IPR regimes. USA, in fact
lodged a complaint with DSB at WTO in 1996 on non-compliance by India that was upheld even after an
appeal.
3
Kalpana Sastry. 2007. Mechanisms of Protection of Agricultural Innovations in India. DESIDOC
Bulletin of Information Technology .27(6): 3-11.
4
This article enunciates three rights. First, it acknowledges farmers’ traditional rights over their
biological resources. Second, it stipulates that wider application of farmers’ knowledge, innovations and
practices is subject to their approval and involvement. Third, it calls for the equitable sharing of ensuing
benefits. All three rights, needed to be embodied in a national legislation, and can provide ownership
and protection of local resources. India ratified as a party to CBD in 1994.
5
The purchasing of patent for Indian designed software that eliminates noise from complex digital data
by a US company and that of a pomegranate deseeder invented by college drop out by a fruit growers
of California and Turkey indicate early successes of the regime which is slowly evolving. See: Ganapati
Mudhur. 2006. India’s 10-year patent drive. Technology Review. September/October.2006 pp18-19.
6
The Science and Technology Policy, 2003, Govt. of India clearly states the intellectual property rights
have to be viewed as an effective policy instrument that will be relevant to wide ranging socio- economic
technological and political concepts.
7
Rao,N.H. and R.Kalpana Sastry.2004. Towards a Policy for Management of Intellectual Property in
Public Agricultural Research Systems in India. Journal of Intellectual Property Rights Vol. 9.May 2004
pp 242-259.
8
The Director General, Indian Council of Agricultural Research (ICAR) had constituted a committee in
November 2005 for developing the organization’s IPR guidelines. These have now been developed and
implemented in national agriculture research institutions under ICAR since October, 2007.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 11

Bill 2008, introduced by Science and Technology Ministry in December 2008,in Rajya Sabha 9
aims to develop a framework for protection and utilisation of intellectual property created out
of public funded research and development. Currently the national government controls the
rights to IP developed at academic or research institutions with the support of public funds.
The bill proposes that the inventing institution be assigned these rights. This is based on the
provisions of the Bayh-Dole Act does in the United States of America (USA) 10 and seeks to
provide for a funding agreement between the government and the recipient before release of
grant for research and development. Besides seeking to bar public disclosure, publication and
exhibition of the public funded intellectual property, the Bill lists duties of the recipient who
retains the titles.
Against such a background of paradigm shifts in national research scenario, it
becomes imperative to monitor the initiatives for catalysing the changes in positive manner
and take corrective steps in a timely manner. The present study is an attempt in this direction.
9
Upper House of the Indian Parliament
10
The Hindu Business Line. 2008. Bill for protecting IPR in public funded research in RS. Monday,
December 15, 2008.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 12

3. Review of Relevant Legal and Policy Documents
“A country without a patent office and good patent laws is just a
crab and can't travel any way but sideways and backwards.”-
Mark Twain in his book, A Connecticut Yankee in King Arthur's
Court (1889)
3.1 Global Context
Over last few decades, several agreements at various international fora have been
negotiated and adopted in order to enhance and better the livelihoods and help nations
achieve the targets set in Millennium Development Goals. Some of these are of direct
relevance to sustainable agriculture, enhanced trade and ensuring better environment. These
include Convention of Biological Diversity (CBD), 1992; Convention on Trade in Endangered
Species, 1973 (CITES); International Plant Protection Convention (IPPC), 1997; International
Union for the Protection of Plant Varieties (UPOV), 1978 and 1991; Cartagena Protocol on
Biosafety, 2000; Trade Related Intellectual Property Rights, 1994 (TRIPs); and The
International Treaty on Plant Genetic Resources for Food And Agriculture, 2001
(ITPGRFA) 11 . These international conventions /treaties/agreements have comprehensive
provisions for conservation and sustainable use of, and access to genetic resources and for
sharing of benefits derived from their use. Concurrently, new emerging regimes in protection
mechanisms for innovations at the global levels are impacting the access, transfer, and use of
biological and /genetic resources for furthering the research and developmental activities in all
fields of agriculture (Table 3.1).
Table 3.1. International Treaties/Conventions affecting Agriculture Innovation
Systems
Treaty / Agreements/ Convention Objectives
1. Convention on International Trade Ensure international trade in specimens of
in Endangered Species of Wild wild animals and plants under strict
Fauna & Flora (CITES), 1975 regulation and not endanger their further
http://www.cites.org/ survival
2. International Convention for the Grant and protect breeders rights
protection of new varieties of plants
(UPOV), 1978; 1991
http://www.upov.int/index.html
3. Convention on Biological Diversity Conservation of Biological Diversity
(CBD), 1992 Sustainable use of its components (biological
resources)
http://www.biodiv.org/default.shtml Fair and equitable sharing of benefits arising
out of utilization of genetic resources
4. FAO-CGIAR Agreement, 1994 Designated germplasm held in trust in CG
centers
5. Agreement on Trade-Related To promote effective and adequate protection
Aspects of Intellectual Property of IPR
Rights (TRIPs) , 1995 To ensure IPR themselves do not become
http://www.wto.org/English/docs_e/l barriers to legitimate trade
egal_e/legal_e.htm
6. Global Plan of Action Developed State of World’s PGFRA
(GPA), 1996 20 priority areas under four groups
Adopted by 150 countries
11
Cooper,H.D. and N.Murthi Anishetty. 2004. International Treaties relevant to the management of Plant
Genetic Resources. Encyclopedia of Plant and Crop Science Marcel Dekker .
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 13

Treaty / Agreements/ Convention Objectives
http://www.fao.org/ag/
AGP/AGPS/GpaEN/gpatoc.htm
7. Cartagena Protocol, (CP), 2000 Safe transfer, handling and use of living
http://www.biodiv.org/biosafety/defa modified organisms (LMOs) resulting from
ult.aspx modern biotechnology that may have
adverse effects on conservation and
sustainable use of biological diversity taking
also into account risks to human health, and
specifically focusing on transboundary
movements
8. International Treaty on Plant Conservation and sustainable use of plant
Genetic Resources for Food & genetic resources for Food and Agriculture
Agriculture of FAO (ITPGRFA) 2001 (PGRFA
http://www.fao.org/ag/cgrfa/itpgr.ht Fair and equitable sharing of the benefits
m arising out of their use in harmony with CBD
for sustainable agriculture and food security
9. Agreements on Sanitary and Phyto- Provides basic rights to the member countries
Sanitary Measures (SPS) namely sovereign right, scientifically
http://www.wto.org/English/tratop_e/ justifiable, to protect the health and safety of
sps_e/sps_e.htm their citizens, animals, plants and the
environment in which they live as defined
Allows justified discrimination in contrary to
non-discrimination of other agreements These
measures in any case would constitute a
disguised restriction on international trade
Provides harmonization the members to have
standards based on international guidelines
where ever they exist in compliance to Codex
Alimentarius (CODEX), International Office of
Epizootics (OIE) and International Plant
Protection Convention (IPPC) which should
be subjected to periodic review, but however,
members.
3.2 Indian Context
All these agreements have thus led India to put in place the commensurate and
compliant mechanisms and instruments. Some of the legal instruments passed by the Indian
Parliament as part of compliance to the TRIPS include The Patents Act, 1970 (39 of 1970), The
Patents (Amendment) Act, 1999 (17 of 1999), The Patents (Amendment) Act 2002 (38 of
2002), The Patents (Amendment) Act 2005 (15 of 2005), The Geographical Indications of
Goods (Registration & Protection) Act, 1999 and The Protection of Plant Varieties and Farmers
Rights Act, 2001 (PPV FR Act) (53 of 2001). Apart from these, the Government of India also
enacted an umbrella legislation called the Biological Diversity Act, 2002 (No.18 of 2003).
Proper application and effective enforcement of these laws is the next challenge. Various
ministerial departments under the Government of India are responsible for the administration of
these Acts (Table 2). At present, there is no specific IPR Act to provide protection for
undisclosed information (trade secret). The Indian Contract Act of 1872 and common law have
provisions covering this. The Ministry of Law and Justice is the nodal agency for this purpose.
In October, 2007, the Department of Science and Technology, Govt of India released draft
12
version of the proposed National Innovation Act 2008 . This is to provide legislative framework
12
The Preamble of National Innovation Act states as “An Act to facilitate public, private or public- private
partnership initiatives for building an Innovation support system to encourage Innovation, evolve a
National Integrated Science and Technology Plan and codify and consolidate the law of confidentiality in
aid of protecting Confidential Information, trade secrets and Innovation” Indian Innovation Act: trade and
confidentiality. Kamakhya Srivastava. October 8, 2008. Posted at: http://www.cafezine.com/depts/
article.asp?id=21215&deptid=6
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 14

to protect trade secrets in India considering opportunities for trading in innovations. In addition,
the biodiversity-IPR related matters are covered under the Biological Diversity Act, 2002 by the
Table 3.2 Broad Institutional Mechanism of the Indian IPR Regime
S. IP Legislation Administration Authority Nodal Agency
No.
1. Patent The Patents Act, The Controller General of
1970 Patents Designs and
Trademarks
(CGPDT)/Controller of
Patents
Department of
2. Design The Design Act, The CGPD/Registrar of
Industrial Policy
2000 Designs
& Promotion
3. Trade Mark The Trade Marks The CGPDT/Registrar of
(DIPP), Ministry
Act, 1999 Trademarks
of Commerce
4. Geographical The Geographical The CGPDT/Registrar of
and Industry
Indication Indications Geographical Indications
(MoCI)
(Registration and
Protection) Act,
1999
5. Copyright The Copyright Act, Director and Registrar of Department of
1957 Copyright Secondary and
Higher
Education,
Ministry of
Human
Resource
Development
(MHRD)
6. Integrated The Semiconductor Registrar, Semiconductor Department of
Circuit Design Integrated Circuits Integrated Circuits Layout- Information
Layout-Design Act, Design Registry Technology,
2000 Ministry of
Communication
s and
Information
Technology
(MoCIT)
7. Plant varieties The Protection of Protection of Plant Varieties Department of
Plant Varieties and and Farmers’ Rights Agriculture and
Farmers’ Rights (PPV&FR) Authority/Registry Cooperation,
Act, 2001 Ministry of
Agriculture
8. Undisclosed The Contract Act, Civil courts Ministry of Law
information 1872; Common and Justice
(Civil) Law
9. Biodiversity The Biological National Biodiversity Authority Ministry of
Diversity Act, 2002 (NBA) Environment
and Forests
(MoEF)
10.
Traditional None Secretary of the concerned MoHRD; MoCI
knowledge Ministry(ies)
Source: Kochhar, Sudhir 2008 13 .
13
Kochhar, Sudhir 2008. Institution and capacity building for the evolution of IPR regime in India:
Protection of Plant Varieties and Farmers Rights. Journal of Intellectual Property Rights. Vol. 13,
January 2008,pp.51-56
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 15

National Biodiversity Authority wherein the Ministry of Environment and Forests is the nodal
agency. On the issues of traditional knowledge, two ministries of the central government,
namely, the Ministry of Commerce and Industry and the Ministry of Human Resource
Development, act as the nodal agencies for different matters.
3.3 Summary of Provisions under Various Acts for IPs in India
3.3.1 Copyright
India has one of the most modern copyright protection laws in the world. The earlier
1994 amendment to the Copyright Act of 1957 had provided protection to all original literary,
dramatic, musical and artistic works, cinematography, films and sound recordings. Through
the amendment in 1999, to the Copyright Act of 1957 to make it fully compatible with the
provisions of the TRIPS Agreement, a provision was made bring sectors such as satellite
broadcasting, computer software and digital technology under Indian copyright protection.
The Copyright Act is now in full conformity with the TRIPS obligations 14 . It is called
the Copyright (Amendment) Act, 1999 and came into force on January 15, 2000. The Indian
law facilitates copyright protection to the creators of original works of authorship for: literary
works (including computer programs, tables and compilations including computer databases
which may be expressed in words, codes, schemes or in any other form, including a machine
readable medium); dramatic, musical and artistic works and cinematographic films and sound
recordings. However, a copyright law does not protect facts, ideas, systems, or methods of
operation; although it may protect the way these things are express. A copyright protects the
rights of authors, i.e. creators of intellectual property in the form of literary, musical, dramatic
and artistic works and cinematograph films and sound recordings. The author is the first
owner of copyright in a work. Under the Act, the author is the person who creates the work in
the case of a literary or dramatic work; or composer in the case of a musical work; or the
producer in the case of a cinematograph film; or the producer in case of sound recording or
the photographer in the case of photograph; or the person who uses the work to be created in
the case of a computer generated work. In the case of a work made in the course of the
author’s employment under a contract of service or apprenticeship, the employer shall, in the
absence of any agreement to the contrary, be the first owner of the copyright therein. In
addition, there are moral rights of an author also. The author of a work has the right to claim
authorship of the work and to restrain or claim damages in respect of any distortion,
mutilation, modification or other acts in relation to the said work which is done before the
expiry of the term of copyright if such distortion, mutilation, modification or other act would be
prejudicial to his honour or reputation. Moral rights are available to the authors even after the
economic rights are assigned. For performances, the Act entails rights of performers too.
Legally, a copyright can be assignable. The owner of the copyright in an existing work or the
prospective owner of the copyright in a future work may assign to any person the copyright
either wholly or partially and either generally or subject to limitations and either for the whole
term of the copyright of any part thereof.
The term of copyright in India is the lifetime of a creator and 60 years after his/her
death. In the case of original literary, dramatic, musical and artistic works, the 60-year period
is counted from the year following the death of the author. In the case of cinematograph
films, sound recordings, photographs, posthumous publications, anonymous and
pseudonymous publications, works of government and works of international organizations,
14
The Indian Copyright Act today is compliant with most international conventions and treaties in the
field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971),
the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of
1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. Two new treaties,
collectively termed as Internet Treaties, were negotiated in 1996 under the auspices of the World
Intellectual Property Organization (WIPO). These treaties are called the ‘WIPO Copyrights Treaty
(WCT)’ and the ‘WIPO Performances and Phonograms Treaty (WPPT)’. These treaties were negotiated
essentially to provide for protection of the rights of copyright holders, performers and producers of
phonograms in the Internet and digital era. India is not a member of these treaties as yet. Further
reference: http://copyright.gov.in/
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 16

the 60-year period is counted from the date of publication. The term of rights for performers is
25 years.
The permission of copyright owners is not required for use of the work in specified
cases under the act. The Act has specified the instances where permission is not required
viz., for the purpose of research or private study; for criticism or review; in act of reporting
current events; or in connection with judicial proceedings. Performance by an amateur club
or society if the performance is given to a non-paying audience or making the sound
recordings of literary, dramatic or musical works under certain conditions are also permitted.
Administration of copyright can be taken in collective manner. Very often, the
management and protection of copyright in works are undertaken by a society of owners of
such works. Since these societies, have basic organizational facilities and strength, they are
able to keep a constant vigil over the uses of the work and are able to monitor the collection
of royalty for such use. Since India is a member in international conventions, these societies
can have reciprocal arrangements with similar societies in other countries and can collect
royalty from any use of such work. It is in the interest of copyright owners to join a collective
administration/organization to ensure better protection to the copyright in their works and for
reaping optimum economic benefits from their creations.
Copyright of works of the countries of nationals of countries who are members of the
Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright
Convention and TRIPS Agreement are protected in India through the International Copyright
Order. The same is extended to Indian nationals in those countries.
In India, acquisition of copyrights is automatic and it does not require any formality.
However, the certificate of registration of copyright and the entries made therein serve as
prima facie evidence in a court of law with reference to disputes relating to ownership of
15
copyright. Hence, in case of any infringement/disputes it is essential to register.
A copyright owner can take legal action against any person who infringes the
copyright in the work. The copyright owner is entitled to remedies by way of injunctions,
damages and accounts. Copyright infringement is a criminal offence. Any person who
knowingly infringes or abets the infringement of the copyright in any work commits a criminal
offence under Section 63 of the Copyright Act. The minimum punishment for infringement of
copyright is imprisonment for six months with a minimum fine of Rs 50,000/-. In the case of a
second and subsequent conviction, the minimum punishment is imprisonment for one year
and a fine of rupees one lakh.
16
As per the Indian Act, infringement is a cognizable offence . Any police officer, not
below the rank of a sub-inspector, may, if he is satisfied that an offence in respect of the
infringement of copyright in any work has been, is being, or is likely to be committed, can
seize without warrant, all the copies of the work and all plates used for the purpose of making
infringing copies of the work, wherever found. All copies and plates so seized shall, as soon
as practicable, are to be produced before a magistrate. The National Copyright Office 17 was
established under the provision of the Copyright Act, 1957 18 . The office provides registration
15
Making infringing copies for sale or hire or selling or letting them for hire; permitting any place for the
performance of works in public where such performance constitutes infringement of copyright;
distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the
interests of the owner of copyright; public exhibition of infringing copies by way of trade and import of
infringing copies into India.
16
Section 12 of the Copyright Act also lays down the powers of the Copyright Board and deems it to be
a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 and also
that all the proceedings of the Board would be deemed to be judicial proceedings within the meaning of
Sections 193 and 228 of the Indian Penal Code
17
Section 11 of the Copyright Act requires the Central Government to constitute a Copyright Board
headed by a Chairman with not less than two and not more than 14 other members. Registrar of
Copyrights is to be Secretary of the Copyright Board
18
The Section 9 of the Copyright Act requires for establishment of an office to be called the Copyright
Office for the purpose of the Act. The Copyright Office is to be under the immediate control of a
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 17

facilities for all types of works indicated in the Act and is headed by a Registrar of
Copyrights 19 .
3.3.2 Industrial Design
This is one of the categories of IP where the design system focuses on the aesthetic
feature of an article derived from its visual appearance. A design refers to the features of
shape, configuration, pattern, ornament or composition of lines or colors, applied to any
article, in two or three-dimensional (or both) forms. The IP does not include any mode or
principle of construction or anything, which is mere mechanical device. It also does not
include any trade mark or any artistic work. Any person or the legal representation or the
assignee can apply separately or jointly for the registration of a design. The term “person”
also includes firm, partnership and a body corporate besides individuals. In India, the
governance and administration of this IP is through the Designs Act, 2000. The International
Classification of Industrial Designs as per the Locarno Agreement has also been introduced
into Design Rules, 2001 under the Indian legislation conform to international trends in design
administration. Essential requirement for registration is that the design should be new or
original, distinguishable from known design/ a combination of known designs and be applied
to an article and should appeal to the eye. A design should not comprise or contain
scandalous obscene matter or not be disclosed to the public any where by publication in
20
tangible from or by use or in any other way prior to the filing date .The registration of a
design confers upon the registered proprietor the exclusive right to apply a design to the
article in the class in which the design has been registered. A registered proprietor of the
design is entitled to legal protection of his intellectual property. Registration initially confers
this right for ten years from the date of registration and is renewable for a further period of five
years. However, if the fee for extension is not paid for the further period of registration within
the period of initial registration, this right will cease. There is provision for the restoration is
filed within one year from the date of cessation in the prescribed manner. Registration of the
design is done only after undertaking a substantive examination is carried out where the
novelty and/or originality are checked before the acceptance of the application (Fig. 1). Once
the design is registered, it is entered into the design register and notified and published in
21
official gazette and a design registration certificate is issued .
3.3.3 Patent
A patent is a legal grant in respect of any invention in goods giving exclusive right for
a limited period of time granted by the Government to the patentee, subject to his full
disclosure of the invention. It is one of most popular and a strong form of IP, which focuses on
an invention, which is any new and useful art, process, method or manner of manufacture,
machine, apparatus or other article, and any substance produced by manufacture. An
invention also includes any new and useful improvement in any of them. In India, the
governance and administration of this IP is presently through The Patents Act, 1970 (39 of
1970) and the subsequent amendments made to it in a phased manner in 1999, 2002 and
2005, [The Patents (Amendment) Act 1999 (17 of 1999; The Patents (Amendment) Act 2002
(38 of 2002) The Patents (Amendment) Act 2005 (15 of 2005)] and their Rules to comply with
the obligations by India to TRIPS agreement 22 .
An invention must have certain essential characteristics to be suitable for grant of a
patent. These include novelty, non-obviousness and capability of industrial application.
Registrar of Copyrights to be appointed by the Central Government, who would act under the
superintendence and directions of the Central Government.
19
Registrar of Copyrights;New Delhi.India
20
Some items not considered for registration under this Act include: Book jackets, calendars,
certificates, forms, dressmaking patterns, greeting cards, leaflets, maps and plans cards, post cards,
stamps, transfers, medals; labels, tokens, cards, cartoons; any principle or mode of construction of any
article Buildings and structures; parts of articles not manufactured and sold separately; mere mechanical
contrivance or workshop alterations of components of an assembly; mere change in size of article; flags,
emblems or signs of any country .
21
At: http://www.ipindia.nic.in
22
http://www.patentoffice.nic.in/ipr/patent/patents.htm.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 18

Provision for grant of utility patents under the Indian Act is not there. Further, The Patent Act,
1970 and subsequent amendments in 2002 and 2005 specify some areas 23 that are not
allowed for patenting even after meeting the essential requirements of a patent. Application
for patents can be made by any person claiming to be the true and first inventor of the
invention or by his assignee or legal representative 24 . An application for patent can be made
by any of these persons either alone or jointly with any other person. Two or more companies
as assignees may also make an application jointly. An application for the patent has to be
filed in the respective patent office where the territorial jurisdiction. This application is a
techno-legal document, which fully and particularly describes the invention and the best
method of performing it. Immediately on receiving the application, the patent office accords an
application number to it, and starts the procedure for examination. The procedure comprises
of several stages including examination for patentability, opposition, scope for hearing for or
against opposition, etc. The grant of a patent confers upon the patentee the exclusive right to
it and entitlement of a legal protection to his intellectual property. This right is for period of 20
years from the date of application and has to be maintained for same period by payment of
maintenance fees. However, if the fee is not paid this right will cease. And the invention will
be in public domain. Granting of patent is done only after undertaking a substantive
examination process where the patentability is checked before the acceptance of the
application. Once the patent is accepted it is entered into the register and sealed through
notification in official gazette and a patent grant certificate is issued. For inventions based or
using biological materials, there are specific requirements as per Section 10 of the Act, which
25
are mandatory to be followed before the application is made to the Patent Office . Some of
the special provisions provided towards instruments of patentability relating to inventions
based on biological resources or traditional knowledge under the Indian Patent Act
(amended), 2005 are tabulated in Table 3.3.
Table 3.3. Provisions relating to Traditional Knowledge, Genetic Resources and
Benefit Sharing under Patents (Amendment) Act, 2005
Provisions
Not patentable inventions include
‘an invention which in effect, is traditional knowledge or which is an aggregation
or duplication of known properties of traditionally known component or
components’ [Sec. 3(p)]
If the patent application mentions a biological material, the applicant is required to
‘disclose the source and geographical origin of the biological material in the
specification, when used in the invention’ [Sec. 10(4)(d)(D)]
Grant of a patent may be opposed or revoked, among others, on the following
grounds:
o ‘that the complete specification does not disclose or wrongly mentions the
source or origin of biological material used for the invention [Sec. 25(j) and
64(p)]
o ‘that the invention so far as claimed in any claim of the complete specification
is
o anticipated having regard to the knowledge, oral or otherwise, available within
o any local or indigenous community in India or elsewhere (Sec. 25(k) and
23
Chapter II; Section 3 (a) to (p) of Indian Patent Act,1970 define the inventions not patentable. Section
4 and 5 define inventions relating to atomic energy not patentable and inventions where only methods or
processes of manufacture patentable.
24
Section 6, Indian Patent Act, 1970.
25
Requirement for biological materials (in Section 10 of the IPA, 1970; The specification to be
accompanied by an abstract to provide technical information on the invention; The deposit of the
material shall be made not later than the date of the patent application in India; All the available
characteristics of the material required for it to be correctly identified or indicated are included in the
specification along with name, address of the depository institution and the date and number of the
deposit of the material at the institution (as per the Budapest Treaty of which India is a signatory).
Access to the material is available in the depository institution only after the date of the application for
patent in India or if a priority is claimed after the date of the priority; applicants are to disclose source
and geographical origin of the biological material in the specification, when used in an invention.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 19

64(q)]
These provisions have been made with a premise to afford the legal space to several
inventions based on rich heritage of the land.
The patent system in India is administered under the superintendence of the
Controller General of Patents, Designs, Trademarks and Geographical Indications 26 . The
Office of the Controller General, functions under the Department of Industrial Policy and
Promotion, Ministry of Commerce and Industry. Controller General’s office is in Mumbai.
There are four patent offices in India with the Head Office at Kolkata and other Patent Offices
at Delhi, Mumbai and Chennai.
3.3.4 Geographical Indications (GI)
Geographical Indications of Goods 27 are defined as that aspect of industrial property
which refers to the geographical indication referring to a country or to a place situated therein
as being the country or place of origin of that product. Typically, such a name conveys an
assurance of quality and distinctiveness which is essentially attributable to the fact of its origin
in that defined geographical locality, region or country. It is essentially a sign used on goods
with a specific geographical origin possessing qualities or a reputation stemming from that
place of origin. Indications are which identify as goods originating in a territory, region or
locality, where a given quality, reputation or other characteristic of the goods is essentially
attributable to its geographical origin. It is a method of IP protection by a decree or by a
register and can be a word or a mark. This protection gives right of exclusion to the owners in
a competitive environment by preventing misuse by others. It also ensures quality and
genuineness of products to the consumers and better market returns to the producers. Unlike
other IPs, GI is a property owned by groups or community. It is recognition for products, which
already exist with clear history and reputation and not created new. An association of persons
or association of producers or any organization or Authority established by or under any law
can register as owners of GI but not individuals. India, enacted the Geographical Indications
of Goods (Registration & Protection) Act, 1999 and is in o force from 15th September 2003.
The Act and the Rules provide for establishment of GI registry. As per the Act, “goods” means
any agricultural, natural or manufactured goods or any goods of handicraft or of industry and
includes food stuff; the “indication” includes any name, geographical or figurative
representation or any combination of them conveying or suggesting the geographical origin of
goods to which it applies. For these goods the owners or major stakeholders are the
28 29 30.
producer , proprietor and authorized user Goods are classified in the Fourth Schedule of
the Rules. There are 34 classes identified in The Act 31 .
26
The Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM) is located at
Mumbai. The Head Office of the Patent office is at Kolkata and its Branch offices are located at
Chennai, New Delhi and Mumbai. The Offices of The Patent Information System (PIS) and National
Institute of Intellectual Property Management (NIIPM) are at Nagpur. The Controller General supervises
the working of the Patents Act, 1970, as amended, and also renders advice to the Government on
matters relating to these subjects. At: http://www.patentoffice.nic.in/
27
Under Articles 1 (2) and 10 of the Paris Convention for the Protection of Industrial Property,
geographical indications are covered as an element of IPRs. They are also covered under Articles 22 to
24 of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which was part of
the Agreements concluding the Uruguay Round of GATT negotiations.
28
Producer in relation to goods, means any person who If such goods are agricultural goods, produces
the goods and includes the person who processes or packages such goods; If such goods are natural
goods, exploits the goods; If such goods are handicraft or industrial goods, makes or manufactures the
goods, and includes any person who trades or deals in such production, exploitation, making or
manufacturing, as the case may be, of the goods
29
Registered proprietor: Means any association of persons or of producers or any organization for the
time being entered in the register as proprietor of the geographical indication
30
Authorized user: Means the authorized user of a registered geographical indication
31
For details refer :Fourth Schedule of GI Act,1999
Intellectual Property Management Regime in the
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3.3.5 Semiconductor Integrated Circuit (IC)
Semiconductor Integrated Circuit (IC) means a product having transistors or other
circuitry elements, which are inseparably formed on a semiconductor material or an insulating
material or inside the semiconductor material and designed to perform an electronic circuitry
function. To give effect to Section 6 in Part II of TRIPS, relating to Layout-design
(topographics) of integrated circuits as intellectual property (IP), the Indian Parliament passed
in September 2000, the Semi Conductor Integrated Circuits Layout-Design Act, 2000. The
Semiconductor Integrated Circuits Layout-Design (SICLD) Act, 2000 is the governing Act for
'Lay out Designs of Integrated Circuits' in India. It defines 'layout design' means a layout of
transistors and other circuitry elements including lead wires connecting such elements.
The aim of the Act is to provide protection of Intellectual Property Right (IPR) in the
area of Semiconductor Integrated Circuit Layout Designs and for matters connected therewith
or incidental thereto. The Act and the Rules provide for establishment of semiconductor
integrated circuits layout-design registry. The Semiconductor Integrated Circuits Layout-
Design Registry (SICLDR) is the office where the applications on Layout-Designs of
integrated circuits are filed for registration of created IP. This Registry has jurisdiction all over
India.
32
The Department of Information Technology , Ministry of Information Technology is
the implementing agency. The Registrar is empowered to determine the originality of the
design 33 based on the information available with the office as also through the mechanism of
advertisement of the application for registration of the layout-design and or any input received
by the registry. The registration of a layout-design 34 shall be for a period of ten years from
the date of filing an application for registration or from the date of first commercial exploitation
anywhere in India or in any country, whichever is earlier.
3.3.6 Trade Mark
It is an IP in form of a visual symbol and is often more popular as brand name. This
may be a word signature, name, device, label, numerals or combination of colours on goods
or services or other articles of commerce and which help to distinguish it from other similar
goods or services originating from a different source. Thus this mark guarantees the identity
of the origin of goods and services can stimulate further purchase by the purchasers. It
identifies the actual physical origin of goods and services. The brand itself is the seal of
authenticity. In India, as a consequence to TRIPS, major changes have taken place in the
Trade and Merchandise Marks Act, 1958. The Trade Marks Act, 1999 is now in force since
15th September 2003 35 . Through the amendments, the definition of trademark stands
enlarged. It now includes shape of goods, packaging and combination of colours, which can
be adopted as a trademark. The Act also provides for registration of trademark for services in
addition to goods 36 . A single Register of trademarks with simplified procedures for registration
has been provided. It also provides for registration of collective marks owned by association
of persons.
All applications for registration of trade marks are received at the Head Office and its
branches according to territorial jurisdiction. Applications are then examined mainly with
regard to the distinctiveness, possibility of deceptiveness and conflicting trademarks. The
32
http://india.gov.in/outerwin.htm?id=http://www.mit.gov.in/
33
A layout-design is prohibited from registration if: It is not original or it has been commercially exploited
in India or in a convention country or is not inherently distinctive or those that are not capable of being
distinguishable from any other registered layout-design
34
Semiconductor Integrated Circuits Layout-Design Registry , New Delhi.
35
The Trade Marks Registry was established in India in 1940 and presently it administers the Trade
Marks Act, 1999 and the rules there under. It acts as a resource and information centre and is a
facilitator in matters relating to trade marks in the country.
36
The objective of the Trade Marks Act, 1999 is to register trade marks applied for in the country and to
provide for better protection of trade mark for goods and services and also to prevent fraudulent use of
the mark. The main function of the Registry is to register trade marks which qualify for registration under
the Act and Rules.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 21

registrar on consideration of the application and any evidence of use or distinctiveness
decides whether the application should be accepted for registration or not. If accepted, it is
published in official gazette i.e Trade Marks Journal for opposition. Within a prescribed period
any person can file an opposition following which hearing takes place. If it dismissed, the
trademark is entered in the Register and certificate issued. The registrar’s decision can be put
to appeal to the Intellectual Property Appellate Board. The Registry has its Head Office at
Mumbai with four regional offices in other jurisdictions.
3.3.7 Protection of Plant Varieties
Plant variety rights are a form of intellectual property protection granted to breeders of
new varieties of plants. In a very general sense, a plant variety is a strain of a plant (or, more
often, a crop) that is a pure breed. In other words, for a plant variety to be protected, it must
produce the same type of plant in every generation, and should be distinct in appearance and
distinguishable from others. Plant variety rights include, inter alia, royalty rights over a certain
identified time period and restrictions on the propagation and subsequent use of seeds
derived from such varieties. The protection of plant varieties around the world is guided by
Article 27(3)(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) 37 .The Article mandates states to protect plant varieties, while allowing them the
flexibility to choose between a pure patent system, a unique protection system of its own kind,
(sui generis), or a combination of the two. Given the TRIPs requirement and since the existing
Indian Patent Act, 1970 excluded agriculture and horticultural methods of production from
patentability; the Government of India has adopted the sui generis system for the protection of
plant varieties India designed a sui generis legislation 38 .
The sui generis PPV&FR Act of India has the convergence of provisions made under
the TRIPS Agreement, the Convention for the Protection of New Varieties of Plants
(UPOV 39 ), The International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) and the traditional/conventional privileges and rights already available to Indian
farmers and farming communities in the civil society. However, this Act also has substantial
deviation from the UPOV Acts of 1978 and 1991 and, hence, it could not serve, so far, as a
relevant instrument of India’s accession to the UPOV Convention 40. The ITPGFRA entered
into force in 2004 is a comprehensive treaty whose objectives are the conservation and
sustainable use of plant genetic resources for food and agriculture (PGRFA) and the fair and
equitable sharing of benefits derived from their use, in harmony with the CBD, for sustainable
agriculture and food security. The core of the Treaty is a ‘multilateral system for access and
benefit-sharing’ which for certain categories of PGRFA guarantees facilitated access in return
37
This sub-clause contains three conditions binding on sovereign states. States: may exclude from
patentability plants, animals and essentially biological processes for the production of plants and
animals ; must allow patents for micro-organisms and non-biological and microbiological processes for
the production of plants or animals ;must provide protection for plant varieties, either by patents or by an
effective sui generis [of its own kind] system or a combination.
38
The process of drafting the PPVFR took more than 10 years. Starting in late 1980’s, the first draft was
produced by 1993 by Ministry of Agriculture, nodal Ministry throughout the development of the Bill.
Based on the UPOV model, the penultimate draft was introduced in Lok Sabha (Lower House of
Parliament)on December 12, 1999, and later was referred to 30-member Joint Parliamentary Committee
(JPC) of both the Houses, for redrafting the Bill. This was which was due to inadequate provisions to
protect the interests of the farmers, registration of extanct varieties and tribunals for speedy settlement
of disputes etc. The JPC redrafted the Bill, thus incorporating a chapter on farmer’s rights, as per the IU,
which is a unique feature. The original Bill authorized only the High Court to hear appeal against order of
decisions of the authority or register. The new Bill recommended constitution of Tribunal for the purpose.
Government of India 2001.The Protection of plant varieties and Farmers’ Rights Act 2001.Act No.52 of
2001 New Delhi: Akalank Publications.
39
Union for the Protection of New Varieties of Plants, commonly known as UPOV(based on its initials in
French - Union Internationale pour la protection des oblentions vigetales)
40
Considerable debate has been generated on issue of India joining the UPOV. For India, protecting
farmers’ rights may be a contentious issue when it decides to join UPOV. Article 37(3) of the UPOV
1991 convention clearly states that after December 31, 1995, all countries which wish to join UPOV
must accede to the 1991 convention. http://www.agbioindia.org/archive.asp
Intellectual Property Management Regime in the
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for benefit-sharing. However, in respect of traditional knowledge, the key provision of the
Treaty is its recognition of ‘farmers’ rights’ 41 .
Thus the plant variety protection in India is governed by the ‘The Protection of Plant
Varieties and Farmers’ Rights Act, 2001’ (PPV& FR Act) (53 of 2001). The PPV&FR Rules
2003 were published in the Gazette on September 12, 2003 and provide the manner and
procedures for registration of Plant Varieties. The Act covers all categories of plants, except
microorganisms 42 .
There are two unique provisions of the sui generis legislation developed for the first
time by India. These are: (i) protection of extant varieties, which include previously notified
varieties under the seed law and other varieties of common knowledge/public domain, and (ii)
farmers’ rights 43 , which are quite elaborate and recognize the farmers as conservers and
providers of genetic resources, breeders of farmers/new varieties, and users/cultivators of the
varieties protected under the law, having the right to use their farm-saved seed in a variety of
ways, except as branded seed. Further, to affirm such privileges and rights to farmers 44 as
the availability of farm saved seed for further propagation, sharing, exchanging or even selling
except for as branded seed, the Indian legislature has imposed a ban on the grant of
exclusive right over such new plant varieties under this Act as may carry the genetic use
restriction technology (GURT) 45 .
Apart from the breeders and others involved in developing new varieties, the Act
recognizes farmers too. A farmer who has bred or developed a new variety shall be entitled
for registration and other protection under PPV&FR Act, 2001 in the same manner as a
breeder of a variety. Similarly, a farmer who is engaged in the conservation of genetic
resources of land races and wild relatives of economic plants and their improvement through
selection and preservation shall be entitled in the prescribed manner for recognition and
reward from the Gene Fund provided that material so selected and preserved has been used
as donors of genes in varieties registered under this Act. Farmer shall be entitled to save,
use, sow, re-sow, exchange and share or sell his farm produce including seed of a variety
protected under this act in the same manner as he was entitled before the coming into force
of this Act provided that the farmer shall not be entitled to sell branded seed of a variety
46
protected under this Act . While plant variety present in wilderness cannot be registered,
under PPV&FR Authority, any traditionally cultivated plant variety, which has undergone the
process of domestication/improvement through human interventions, can be registered and
41
The International Treaty on Plant Genetic Resources for Food and Agriculture is aims to fight against
hunger and poverty and essential for the achievement of Millennium Development Goals 1 and 7. No
country is self-sufficient in plant genetic resources; all depend on genetic diversity in crops from other
countries and regions. International cooperation and open exchange of genetic resources are therefore
essential for food security. The fair sharing of benefits arising from the use of these resources has for
the first time been practically implemented at the international level through the Treaty and its Standard
Material Transfer Agreement. The International Treaty on Plant Genetic Resources for Food and
Agriculture (ITPGRFA) At: http://www.planttreaty.org/
42
Cullet,Phillippe and Radhika Koduru.2003.Plant Variety Protection and Farmers Rights. Towards a
broader understanding. 24 Delhi Law Review 2002(2003). Pages 41 –54. Also available at
http://www.ielrc.org/content/a0304.pdf.
43
“This is the first time anywhere in the world the rights of farmers and breeders are given concurrent
recognition.” Quoted from: Swaminathan.M.S.2001. September 15, 2001 “Down to Earth” Pages 48 to
50.
44
Section 2(k) \"farmer\" means any person who cultivates crops by cultivating the land himself; or
cultivates crops by directly supervising the cultivation of land through any other person; or conserves
and preserves, severally or jointly'. With any person any wild species or traditional varieties, or adds
value to such wild species or traditional varieties through selection and identification of their useful
properties.
45
Kochhar, Sudhir.2008. Institutions and capacity building for the evolution of IPR regime in India:
Protection of Plant Varieties and Farmers, Rights. Journal of Intellectual Property Rights.Vol.13,January
2008,pp 51-56.
46
PPV&FR Act, 2001. Chapter VI.[Section 39 (1), (i) – iv)]
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 23

protected subjected to fulfillment of the eligible criteria 47 . The duration of protection of
registered varieties varies for different crops considering their nature 48 .
The Act has specified prerequisites for registration of a plant variety 49 .These include
denomination assigned to such variety with an affidavit that variety does not contain any gene
of gene sequences involving terminator technology to be attached. It is required that complete
passport data of parental lines (geographical location in India; all information relating to the
contribution if any, of any farmer (s), village, community institution or organization in breeding,
evolving or developing the variety along with characteristics of variety with description for
Novelty, Distinctiveness, Uniformity and Stability (NDUS). In addition the person 50 making
application for registration shall disclose the use of genetic material conserved by any tribal or
rural families for improvement of such variety 51 . In addition, the breeder shall be required to
deposit the seed or propagating material including parental line seeds of registered variety to
the Authority. An applicant has to submit a fixed amount of seed sample (breeder seed) with
the seed quality test report. The seed samples received by the Authority will be properly
tested for its purity and germination. A part of the seed sample will be sent to the test center
for conduct of Distinctiveness, Uniformity and Stability (DUS) tests and a part of it will be kept
by the Authority in the National Gene Bank to maintain the seed samples of the registered
varieties for their entire period of protection. Any person seeking for the seed sample of a
protected variety or a variety undergoing the DUS test procedure has to get permission from
the Authority or the concerned breeder of the variety. Table 3.3 shows a tabulation of various
provisions afforded towards protection of traditional knowledge base, genetic resources and
on the issues of benefit sharing.
Table 3.4. Provisions relating to Traditional Knowledge, Genetic Resources
and Benefit Sharing under Protection of Plant Variety and Farmers’
Right Act, 2001
Provisions
‘benefit sharing, in relation to a variety, means such proportion of the benefit accruing
to a breeder of such variety or such proportion of the benefit accruing to the breeder
from an agent or a licensee of such variety, as the case may be, for which a claimant
shall be entitled as determined by the Authority under Section 26 [Sec. 2(b)];
Every application for registration …shall
contain a complete passport data of the parental lines from which the variety has
been derived along with the geographical location in India from where the genetic
material has been taken and all such information relating to the contribution, if any,
of any farmer, village community, institution or organization in breeding, evolving or
developing the variety’ [Section 18(e)];
‘contain a declaration that the genetic material or parental material acquired for
breeding, evolving or developing the variety has been lawfully acquired’ [Section
18(h)];
47
As defined by Indian law, “variety” broadly means “a plant grouping except micro organism within a
single botanical taxon of the lowest known rank, which can be… considered as a unit with regard to its
suitability for being propagated, [and] which remains unchanged after such propagation, and includes
propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially
derived variety”, Section 2(za), PVP Act.
48
Duration of protection for trees and vines-18 years For other crops -15 years For extant varieties-
15 years from the date of notification of that variety by the Central Government under Section 5 of the
Seeds Act, 1966. [vide Section 24 of the Act].
49
Vide Section 15 of PPV&FR Act, 2001.
50
Persons/Institutions eligible to apply are: Any person claiming to be the breeder f the variety; Any
successor of the breeder of the variety; Any person being the assignee or the breeder of the variety in
respect of the right to make such application; Any farmer or group of farmers or community of farmers
claiming to be breeder of the variety.
51
Form I – for registration of new variety, extant variety and farmer’s variety and Form II – for essentially
derived varieties (EDVs) and transgenic varieties Technical Questionnaire covering detailed information
of the concerned variety. Along attached with the forms (I and II) – for Prescribed fee
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 24

On receipt of copy of the certificate of registration…the Authority shall publish such
contents of the certificate and invite claims of benefit sharing to the variety registered
under such certificate in the manner as may be prescribed [Section 26(1)](2)
On invitation of the claims under sub-section (1),
any person or group of persons or firm or governmental or nongovernmental
organization shall submit its claim of benefit sharing to such variety in the
prescribed form within such period, and accompanies with such fees, as may be
prescribed [Section 26(2)]:
the extant and nature of the use of genetic material of the claimant in the
development of the variety relating to which the benefit sharing has been claimed.
the commercial utility and demand in the market of the variety relating to which the
benefit sharing has been claimed.
The amount of benefit sharing to a variety determined under this section shall be
deposited by the breeder of such variety in the manner referred to in clause (a) of
sub-section 45 in the National Gene Fund.
the amount of benefit sharing determined under this section shall, on a reference
made by the Authority in the prescribed manner, be recoverable as an arrear of
land revenue by the District Magistrate within whose local limits of jurisdiction the
breeder liable for such benefit sharing resides.
During the period between filing of application for registration and decision taken by
Authority on application, the right holder shall enjoy provisional protection of his variety
against any abusive act committed by any third party In case of any act of such abuse the
right holder may bring it to the notice of Registrar PPV&FR who is entrusted with the powers
to issue directions in such cases as per Section 24(5) of the Act, and also powers of a Civil
Court to protect the interests of a breeder.
As a result of grant of Plant Variety Protection (PVP) certificate, a title holder of a
registered variety can exclusively use the variety on his own or through
agents/licensees/inheritors/successors/assignees for the entire term of its protection,
excluding others from unauthorized protection, sales, marketing, distribution, import or export
of propagation material of the protected variety. Whereas, the registrar and the PPV&FR
Authority shall administer the grant, maintenance, revocation, and cancellation of breeder’s
right or any correction of entry in the register, if applicable, or the registration of
agents/licensees of breeder for a particular registered variety, in terms of the restriction of
breeders’ right, the PPV&FR Authority invites any claims for benefit sharing by publishing the
particulars of the registered variety in Plant Variety Journal of India, gives opportunity to
breeder to be heard, and decides on benefit sharing. The PPV&FR Authority is also allowed
to admit cases, hear and decide on grant of compulsory license, if any, setting the term and
conditions and limitations of compulsory license, and grant and quantum of remuneration to
the breeder for the compulsory license. In case a breeder is aggrieved with any order or
decision of the Authority or Registrar that affects his entitlement rights, he may make an
appeal before the PVP Appellate Tribunal. Such appeals will be admitted and disposed of in
respect of the following matters; (i) registration of varieties, (ii) registration of
agents/licensees, (iii) revocation or modification of compulsory license, and (iv) payment of
compensation made under the law. Further, if a breeder notices an infringement of his
entitlement right, he may approach any Court (but not inferior to a District Court) in whose
52
jurisdiction any act of alleged infringement occurs . The Act has provisions for the
registration of agents and licensees, and has also accorded rights to them 53 . Further, unless
validity of registration is challenged, certificate issued by Registrar shall be the conclusive
proof of entitlement of agents/licensees along with conditions/restrictions, if any as per
Section 28(5) of the Act. The Act also provides that the registered agent/licensee not entitled
52
District Courts will admit such cases of alleged infringement under Section 65.
53
For example, to prevent infringement of Breeder’s Right, a registered agent may institute legal
proceedings in his own name as per Section 28 (6) of the Act. However, he may have to do so only after
giving information of infringement and 3 months’ time to the title holder to take proceedings to prevent it.
In such proceedings, the breeder shall be added as defendant. He shall not be liable for any costs
unless he enters an appearance and takes part in the proceedings as per Section 28 (7) of the Act.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 25

to transfer the right any further as per Section 28(8) of the Act. The implementation of
PPV&FR Act revolves round the core institutional mechanism provided by the PPV&FR
Authority and the PPV&FR Registry, various enforcement provisions made in the Act, and
also the provision for speedy legal remedies and recourse by the PVP Appellate Tribunal (Fig.
1).
Fig. 1. Administration and Enforcement Structure of PPV&FRA
Central
Government
PPV&FR
Authority
[Section 3(1)]
Ministry of
Agriculture
Standing Committee/
Tribunal Registry Other
(Section 54) [Section 12(1)] Committees
[Section 5(1)]
Court of Law
Fig Source: Adapted from Trivedi, 2006 54 and Kochhar, 2008 55 .
At present, the Act also provides that the existing Appellate Tribunal under the Trade
Marks Act, 1999 would hold for the purpose of PPV&FR Act till the regular Appellate Tribunal
is appointed separately. The PPV & FR Authority and Registrar haves the powers of a Civil
Court 56 . Further, all appeals for the orders/decision of Authority/Registrar will be made to the
PVP Appellate Tribunal 57. The Act provides that suits for the infringement of the breeder’s
rights shall be filed as per Section 65 of the Act in a District Court, or a Superior Court, within
the local limits of whose jurisdiction any act of infringement of breeder’s right is committed.
This provision is clearly aimed at avoiding delay in the settlement of IPR related disputes,
which is otherwise possible in lower courts due to long queues of pending cases.
The PPV&FR Authority was created under the aegis of this Act, as the implementing
Authority in this legislation, with central operations in Delhi 58 . The genera and species of the
varieties for protection are notified through a Gazette notification. In May 2007, twelve species
54
Trivedi,RK.2006. Lecture in training program for agriculture officers of AP at NAARM, Hyderabad,
during November 2006.
55
Kochhar, Sudhir 2008. Institutions and capacity building for the evolution of intellectual property rights
regime in India:-conformity and enforcement issues. Protection of Plant Varieties and Farmers Rights.
Journal of Intellectual Property Rights.Vol. 13, May 2008,pp.239-244.
56
Vide Section 11(a) of the Act and the orders passed by them are executable as a decree of a Civil
Court as per Section 11(b) of the Act in all proceedings for the purposes of receiving evidence,
administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of
documents, issuing commissions for the examination of witnesses, etc
57
vide Section 56 of the Act for the purposes of registration of variety, registration of agent/licensee,
claim for benefit sharing, revocation/modification of compulsory license, and payment of compensation
made as per Section 54 of the Act.
58
Protection of Plant Varieties and Farmers’ Rights Authority has been established and is located at
NASC Complex, DPS Marg, Opp- Todapur, New Delhi-110 012.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 26

of crops 59 were opened up for applications. Till Dec 1, 2008, about 970 applications had been
received, of which 550 relate to extant varieties, 5 are for farmers' varieties, while the
remainder are for new varieties 60 .
Though the number of applications is fairly large, it is important to note that not all of
them are not in acceptable format. For example, there are applications which are not
accompanied by seed, which is required by law in some categories, which have been
automatically treated as 'dropouts'.
The largest number of applications have been for 'extant varieties’, which under the Act,
may be of four types, those varieties that are already notified under the Seed Act,
1966;Farmers' Variety (FV) 61 'Variety of Common Knowledge', which are protected under the
PPVF&R Act; or any other variety which is in the public domain. More than half of the
applications (about 550) for registration received were of the extant variety category. Of
these, the Extant Variety Recommendations Committee formed within the Authority has
cleared almost half the cases for final approval. The Authority also publishes the monthly
Plant Variety Journal 62 of India which serves as the Gazette for this Act. Twelve issues of the
Plant Variety Journal of India, a priced publication of the PPV&FR Authority, have been
already brought out until December 2008 63 to disseminate public knowledge related to the
PPV&FR Act, and also to publish information on the status of the applications.
The Authority is also contributing in developing capacity of trained manpower and for
enhancing institutional capacity for the implementation of the plant variety protection and the
farmers’ rights provided in the Act, the PPV&FR Authority has made collaborative
arrangements with ICAR institutes like Indian Agricultural Research Institute (IARI) 64 to impart
training for developing skills in the professionally qualified (PQ) persons, scientific manpower,
farmers, NGOs, extension workers, and other public and private agencies. These trainings
are organized for different durations, ranging from 3-5 days to 10 weeks. It also sponsors
training in other institutes 65 and state agricultural universities for all engaged in this activity
from public and private sector.
3.3.9 Space relating to Traditional Knowledge, Genetic Resources and
Benefit Sharing in the other Laws
In tune with societal needs in a country with rich traditional base, following the
instances of alleged bio-piracy on issues related top biological resources in recent past,
policy and lawmakers in India have provided various provisions in Indian Laws. This is done
with a premise to develop instruments to enhance the profits to the concerned stakeholders
on one hand and also to preserve the rights of people engaged in knowledge spheres of
traditionally held domains in the society. The Biological Diversity Act, 2002 enacted in 2002
enables a statutory authority, National Biodiversity Authority (NBA),which oversees the
59
DUS test guidelines finalized for 14 notified crop species: Black gram, Bread wheat, Chickpea, Field
pea, Green gram, Kidney bean, Lentil, Maize, Pearl millet, Pigeon pea, Rice, Sorghum, Cotton, Jute .
vide Section 29(2) of the Act At: http://www.plantauthority.gov.in/index.htm
60
Sumathi Chandesekhran. 2008. At: http://spicyipindia.blogspot.com/2008/12/spicyip-interview-plant-
variety.html
61
The definition of 'farmers' variety' is contentious and still in process. According to the Chairperson
PPVFRA, “there lies here a potential project for institutions to document FVs, especially rice, which is an
Indian variety and under threat from MNCs”.
62
Soft copies of the journal are also available on the official website of the Authority. At:
http://www.plantauthority.gov.in/publications.htm
63
For instance, the ACCEPTED APPLICATION FOR REGISTRATION of an application is now in the
latest issue of journal. In: Plant Variety Journal of India, Vol. 2, No.12.
December 01, 2008/ At: http://www.plantauthority.gov.in/PDFile/PVJ_dec_2008.pdf
64
Premier agricultural research institute in India and a deemed-to-be-university for human resource
development
65
NAARM has been partnering with Farm and Rural Science Foundation (FRSF), a non-profit
organization for conducting training programs sponsored by the Authority during last two years, 2006-
08.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 27

activities defined. Table 3.5 lists some of the provisions under law to use of biological
resources and IPRs resulting from using them.
Table 3.5. Provisions relating to Traditional Knowledge, Genetic Resources and
Benefit Sharing under BD Act, 2002.
Provisions under BD Act, 2002
The Act prohibits certain category of persons, especially foreigners, ‘without previous
approval of the National Biodiversity Authority’ to, ‘obtain any biological resource
occurring in India or knowledge associated thereto for research or for commercial
utilization or for bio-survey and bio-utilization’ [Sec. 3(1)].
The Act prohibits the ‘transfer the results of any research relating to any biological
resources occurring in, or obtained from, India for monetary consideration or
otherwise’ to certain categories of persons, especially foreigners [Sec. 3(4)]
The Act prohibits the application ‘for any intellectual property right, by whatever
name called, in or outside India for any invention based on any research or
information on a biological resource obtained from India without obtaining the
previous approval of the National Biodiversity Authority before making such
application’ [Sec. 6(1)].
‘The National Biodiversity Authority may, while granting the approval under this
section, impose benefit sharing fee or royalty or both or impose conditions including
the sharing of financial benefits arising out of the commercial utilization of such
rights’ [Sec. 6(2)].
o ‘The National Biodiversity Authority shall while granting approvals under
section 19 or section 20 ensure that the terms and conditions subject to
which approval is granted secures equitable sharing of benefits arising out of
the use of accessed biological resources, their by-products,
o innovations and practices associated with their use and applications and
knowledge relating thereto in accordance with mutually agreed terms and
conditions between the person applying
o for such approval, local bodies concerned and the benefit claimers.’ [Sec. 21
(1)].
The National Biodiversity Authority shall, subject to any regulations made in this beha
determine the benefit sharing which shall be given effect in all or any of the following mann
namely(a) grant of joint ownership of intellectual property rights to the National Biodivers
Authority, or where benefit claimers are identified, to such benefit claimers; (b) transfer
technology;(c) location of production, research and development units in such areas wh
will facilitate better living standards to the benefit claimers; (d) association of Ind
scientists, benefit claimers and the local people with research and development in biologi
resources and bio-survey and bio-utilization; (e) setting up of venture capital fund for aid
the cause of benefit claimers; (f) payment of monetary compensation and non-moneta
benefits to the benefit claimers as the National Biodiversity Authority may deem fit.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 28

4. ICAR System
“A policy is a temporary creed liable to be changed,
but while it holds good it has got to be pursued
with apostolic zeal.\" - Mahatma Gandhi
4.1 The Indian Council of Agricultural Research (ICAR)
The Indian Council of Agricultural Research (ICAR) is an autonomous organisation
under the Department of Agricultural Research and Education, Ministry of Agriculture,
Government of India. Formerly known as Imperial Council of Agricultural Research, it was
established on 16 July, 1929 as a registered society under the Societies Registration Act,
1860 in pursuance of the report of the Royal Commission on Agriculture. The ICAR 66 is the
apex body for planning, promoting, coordinating and undertaking research, coordinating,
guiding and managing research and education in agriculture including horticulture, fisheries
and animal sciences in the entire country. It is also the nodal agency of the National
Agricultural Research System (NARS) comprising Central and State Agricultural Universities,
Central Universities and affiliated colleges of agriculture, and other organizations (includes
public and private, national and international agencies) dealing with agricultural research.
The ICAR system consists of a network of institutions comprising 47 national
institutes including 4 deemed to be universities and an academy of agricultural research
management, 5 national bureaus, 12 project directorates, 31 national research centres, 91 All
India Coordinated Research/Network Projects (AICRP) and 538 Farm Science Centres (Krishi
Vigyan Kendras or KVKs). The AICRP programs are the main link between ICAR and State
Agricultural Universities (SAUs). These were introduced to ensure complementarities in the
research programmes of different institutions and provide a mechanism for joint evaluation of
67
new technologies by the scientists through multi-location testing . The number of centres under
AICRPs is about 1300 of which 900 are based in universities and 200 in the ICAR institutes 68 .
4.2 Partners and Mode of Functioning
Several other partners support the research activities of ICAR. These include 23
general universities, under the University Grants Commission (UGC), several scientific
organisations such as Council of Scientific and Industrial Research (CSIR), Bhabha Atomic
Research Centre (BARC), National Remote Sensing Agency (NRSA), other governmental
agencies, and more than 100 private and voluntary agencies and about 105 scientific
societies. All these form a part of the National Agricultural Research System (NARS). The
total number of scientists exceeds 20,000 making the Indian NARS is one of the largest
systems in the world 69 . It is well contended that the effective functioning of this system, in close
association with education and extension systems, has contributed to the rapid growth of
agriculture after India became independent in 1947 70 . Research programs are centring basic as
well as applied issues, and on diverse problems facing production of crops, animals, fisheries,
etc., with the objective of evolving new production technologies suited to different agro-
climatic conditions. Using formal and informal arrangements with these agencies, ICAR
continues to 71 :
66
Indian Council of Agricultural Research (ICAR), Krishi Bhawan, 1, Dr. Rajendra Prasad Road, New
Delhi – 110 001; is a Registered Society, incorporated under the Societies Registration Act, 1860.
67
Raman, K.V. and Balaguru, T. 1990. National Agricultural Research System in India. Journal of Indian
School of Political Economy 2(3): 449-474.
68
As quoted in Page 16. Source: ICAR Vision 2020. Vision Document 2020. 84 Pages.
69
The research system includes approximately 30,000 scientists and more than 100,000 supporting staff
actively engaged in research related to agriculture.
70
Balaguru, T. and Raman, K.V. 1988. Agricultural Research System in India. In: Agricultural Research
Systems and Management in the 21st Century, Raman, K.V. et al. (Eds), NAARM Alumni Association,
Hyderabad
71
Supra at n. 3 Source: ICAR Vision 2020. Vision Document 2020 DARE/ICAR Annual Report 2007-
2008. http://www.icar.org.in/anrep/200708/AR200708.htm
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 29

(i) implement research mandates extending beyond the administrative boundaries of the
States;
(ii) pursue basic research not undertaken by most Agricultural Universities
(iii) evaluate research results through multi - location testing
(iv) develop manpower for Agricultural Universities and other agricultural institutions.
This approach has helped it to play a pioneering role in ushering Green Revolution and
subsequent developments in agriculture in India. Research and technology development
programs have enabled the country to increase the production of food grains by 4 times,
horticultural crops by 6 times, fish by 9 times (marine 5 times and inland 17 times), milk 6
times and eggs 27 times since 1950-51, thus making a visible impact on the national food and
72
nutritional security .
4.3 New Role
With new changes in agriculture at the global levels, the ICAR is attempting to
redefine its mission through the Vision plan 73, and is embarking on developing profess in the
use of cutting-edge technologies 74 . In conjunction with ongoing programs, it now aims to look
into problems relating to broader areas of rural development concerning agriculture, including
post-harvest technology, by developing co-operative programmes with other organizations at
national and international levels 75. The agriculture sector in India accounts for about 22% of
its GDP, 15% of the total export earnings and employs about 56.7% of the country’s
workforce.It plays a key role in ensuring national food security, and in the process, national
security as well. For these reasons, agricultural development has a strong multiplier effect
across the economy. There is increasing consensus that, in a globalizing economy, a long-
term economic growth agenda for India is feasible only if it has agricultural development that
raises rural incomes as its central concern. Rising economic growth rates and investments,
and expanding global trade create opportunities for agricultural growth that can raise rural
incomes, reduce poverty and provide for food and nutritional security.
Making use of these opportunities requires a transition from the present producer-
driven approach to agricultural development to a market-led agricultural development
approach that enables producers to understand and respond appropriately to consumer
needs and preferences. Piloting the agricultural transition, therefore, requires that special
attention be given to reducing the vulnerability of the poor in the disadvantaged regions and
ensuring their smooth integration into the economy. The National Policy on Agriculture (NPA),
76
the Tenth Five Year Plan , as well as the Eleventh Five Year Plan of the Government of
77
India , which is in force currently, all recognize the need for a market-led, but regionally-
differentiated approach to agricultural development. The Policy and Plans also accord high
priority to agricultural research for generation and transfer of agricultural technologies that
72
http://www.icar.org.in/ICARataglance.pdf
73
Source: ICAR Vision 2020. Vision Document 2020
74
“Keeping this in view, our priority areas would be eco-region specific technology generation and
extension in continuation; systems perspective in research and education; enhancement of water
productivity and nutrient-use efficiency; climate change and management of stresses; landuse systems
for multi-functional agriculture; diagnostics, vaccines and delivery systems; valueadded product
development, food safety and quality assurance; biosensors, biofuels, biomolecules, biofortification,
biosafety, biosecurity, bioremediation, and biofertlization; IT-based decision support systems for
technology transfer; human resource development in niche areas; and enabling mechanisms for
enhancing R&D productivity. This calls for significant new initiatives in research and development and
enhanced investments for technology generation relevant to different regions/situations”.- Dr Mangala
.Rai, DG, ICAR. Quoted from : DARE/ICAR Annual Report At: 2007-2008
http://www.icar.org.in/anrep/200708/AR200708.htm
75
Section 5 of the Indian Patent Act 1970 only inventions which are methods or processes of
manufacture were patentable; restricted patents from substances in India for use or capable of being
used as food or as medicine or drug ….. . substances capable of being used as food/medicine/drugs
were not allowed for patenting. This was prior to 1995.
76
At: http://planningcommission.nic.in/plans/planrel/fiveyr/welcome.html
77
Eleventh Five Year Plan.(2007–2012).Agriculture, Rural Development, Industry, Vol. III.Pages 537.
At:
http://planningcommission.nic.in/plans/planrel/fiveyr/11th/11_v3/11th_vol3.pdf
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 30

help to increase farm incomes and rural employment opportunities, as well as to ensuring
sustainability of livelihoods in the less developed regions. Against this premise, the Govt of
India has launched an innovative programme called the National Agricultural Innovation
Project (NAIP) in 2006, with World Bank support, to bring about plurality of stakeholder
involvement in agricultural R&D through consortia mode of operation 78 . This program is seen
as the means to achieve the holistic approach to help India become more competitive in
agriculture trade and also improve livelihoods of many in this sector.
Along with this it is realised that trade liberalization has shifted economic incentives
and improved technologies are now critical factors in a country’s ability to exploit its
comparative and competitive advantages. Technological needs are changing toward more
knowledge- and skill-intensive agriculture and more complex farming systems. Important
changes in the technology for research itself, especially the new biotechnologies and
informational technologies, are raising new issues in organizing national research systems,
related to economies of size, international collaboration, and public-private linkages.
4.4 Need for Institutionalization of IP Policy
Such paradigm shifts in agricultural systems though essential for broad vision of
improving rural sectors are necessitating the reorientation of mechanisms and mode of
agricultural research and innovation system all over the world including India. Historically,
agricultural research was not concerned with IP issues (except to a limited extent for
mechanical inventions) as living organisms (plants and animals) or the bioprocesses (like
tissue culture), and inputs used to produce them like fertilizers, and pesticides were kept out
of the purview of IP protection 79. It was only after 1995, when the WTO agreement on Trade
Related Intellectual Property Rights (TRIPS) 80 made it mandatory for all member nations to
provide for protection of IP arising from agricultural research. The agreement expanded the
level, scope, extent and role of IP protection tremendously and forced the developing
countries into its ambit, leading to fundamental changes in the nature and ownership of
innovations and resources in agriculture 81 .
The entry of new players and opening of markets in global arena has also brought
new equations on owning of intellectual property and resultant difficulties in access for inputs
in research. The role of intellectual property rights (IPRs) in international trade, the global
economy and international relation has grown considerably, especially since the 1970s 82
(IPR-protected products, technologies and services are major exports and rights manifesting
in form of licenses to use the patented processes, products, designs, trademarks or
copyrights. All these developments necessitate legal protection mechanisms to be in place.
A summary of legal provisions in IP laws in India was discussed in preceding chapter.
ICAR is also bound by national laws and recognizes the evolving trends in IP jurisprudence
78
“The NAIP is to facilitate accelerated and sustainable transformation of Indian agriculture in support
of poverty alleviation and income generation by collaborative development and application of
agricultural innovation by the public research organizations in partnership with the farmer’s groups, the
private sector, the civil society organizations and other stakeholders”. ICAR. 2006. National Agricultural
Innovation Project. Project Implementation Unit, NAIP, New Delhi. Available at: http://www.naip.icar.org.in/
79
Section 5 of the Indian Patent Act 1970 only inventions which are methods or processes of
manufacture were patentable; restricted patents from substances in India for use or capable of being
used as food or as medicine or drug substances capable of being used as food/medicine/drugs were
not allowed for patenting. This was prior to 1995.
80
Available at: http://www.wto.org/english/tratop_e/TRIPS_e/TRIPS_e.htm#WhatAre
81
Juma, C.1999. Intellectual Property Rights and Globalization: Implications for Developing Countries.
Science, Technology and Innovation Discussion Paper No.4, Center for International Development,
Harvard University, Cambridge, MA, USA.
82
Dutfield, Graham. 1999. Intellectual Property Rights, Trade and Biodiversity: The Case of Seeds and
Plant Varieties. Background Paper written for IUCN Project on the Convention on Biological Diversity and
the International Regime. Inter-sessional Meeting on the Operations of Convention. Montreal, Canada,
28-30 June 1999.Pages 1-97.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 31

and in developing its IP policy; it has imbibed these obligations too 83 . For organizations like
ICAR which is part of a large NARS, it becomes more obligatory to place an institutional
mechanism in place. Institutionalizing intellectual property management requires an effective
policy 84 to guide decisions and internal processes related to the management of various
forms of IP at all levels of hierarchy within the organization. For public systems, policy is
driven by a vision of society’s future and guided by the basic principles of effectiveness,
transparency, equity, consistency and comprehensiveness 85 . By this definition, a national
agricultural policy 86 would include a set of principles, rules, guidelines or mechanisms to
effectively plan and regulate production, processing and trade of agricultural products while
providing for sustainable food security and rural employment to promote growth and equity.
Likewise, a policy on intellectual property (IP) in agricultural research in public
research systems includes a set of principles, rules, guidelines or mechanisms to guide
decisions on managing intellectual property to promote more effective research and
technology transfer, in a manner that is consistent with the role and objectives of the
organization. It is contended that an effective IP policy not only supports efficient decision-
making, but also provides the basis for institutionalizing related organizational systems,
mechanisms and procedures to ensure both efficiency and accountability of decisions at all
levels of hierarchy within the organization. Hence, in adjusting to the external forces and
changing the management of IPR, a national agricultural research organization (NARO) must
87
take into account , a policy framework guiding its mission, objectives and programs, with its
stakeholders, and its research scientists. Since management of intellectual property (IP)
attached to agricultural research is a relatively new phenomenon, developing, implementing
and managing such a dynamic system can present formidable challenges and complications.
In the recent past, several agriculture research institutions including the CGIAR system have
responded to these demands and initiated institutionalization of IP policy 88 .
4.5 ICAR Guidelines for Intellectual Property Management and
Technology Transfer / Commercialization
In the Indian NARS, the earlier approach to manage IPs was on case-to case
approach taking cue from few documented rules and guidelines 89 . The process was more at
the central headquarters and all its constituent institutes dependent on the central unit. Taking
note of the new shifts and efforts at international institutes and realising the need for a more
vibrant and viable system, the ICAR had initiated its efforts to devise such a policy for public
agricultural research institutions. In doing so, it kept in mind its fundamental social mission to
contribute to national growth and equity, consistent with the national economic and
83
“The management approach as described in the guidelines will conform to the national IPR laws and
policies in force in the country. It will be in line with the legal framework required as per the TRIPS
Agreement. The provisions of the Convention on Biological Diversity (CBD) and the International Treaty
on Plant Genetic Resources for Food and Agriculture (ITPGRFA) will be recognized” Chapter 1. Page
14.In: ICAR. 2006. ICAR Guidelines for Intellectual Property Management and Technology Transfer/
Commercialization. Indian Council of Agricultural Research, New Delhi. October 2006.
84
Policy refers to a set of principles, rules, guidelines or mechanisms that guide stakeholders in
planning and decision-making in organizations.
85
Norton R.D. 2004. Agricultural Development Policy: Concepts and Experiences, John Wiley and
Sons,USA. 540 pages.
86
“The Government of India trust that this Statement of National Agriculture Policy will receive the fullest
support of all sections of the people and lead to sustainable development of agriculture, create gainful
employment on a self sustaining basis in rural areas, raise standards of living for the farming
communities, preserve environment and serve as a vehicle for building a resurgent national economy”
In: NATIONAL AGRICULTURE POLICY, Ministry of Agriculture, Department of Agriculture & Co-
operation, Government of India. At:http://www.nls.ac.in/CEERA/ceerafeb04/html/documents/agri.htm
87
Managing Intellectual Property – Challenges and Responses for Agricultural Research Institutes.
Pages 209-217 in G.J. Persley and M.M. Latin (eds.) Agricultural Biotechnology and the Poor:
Proceedings of an International Conference. 21-22 October, 1999. CGIAR, Washington DC.
88
Egelyng, H. 2005. Evolution of capacity for institutionalized management of intellectual property at
international agricultural research centers: A strategic case study. AgBioForum, 8(1), 7-17. Available on
the World Wide Web: http://www.agbioforum.org.
89
“ICAR Rules and Guidelines for Training, Consultancy, Contract Research and Contract Services,
1997”, the “ICAR Guidelines for Filing Patent Applications, 2001” and the “Memorandum of Association:
Rules and Bye-Laws of the Indian Council of Agricultural Research Society, 2000”.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 32

agricultural policies 90 and the legal framework at the national and international fora. The
entire process, spanning over two years, was through detailed review at in-house levels,
through the discussions from practitioners of IP management in other fields 91 , at national 92
and international levels 93 . All these efforts culminated in the establishment of its current
decentralized IPR domain since October 2, 2006.
This set in the implementation of ‘ICAR Guidelines for Intellectual Property
Management and Technology Transfer / Commercialization’ in all its institutes 94 .Besides
providing the working guidelines for facilitation of IP management and technology transfer
activities, ICAR has also delegated powers to all Directors of its institutes to execute
protection, maintenance and transfer of the IP subsisting in the ICAR’s research results for
the benefits of farmers and farm enterprises. Many state agricultural universities (SAUs) have
also adopted the ICAR guidelines in spirit, either as such or by making suitable modifications
to meet their specific needs 95 .
4.5.1 Institutional Arrangements
The guidelines describe the institutional arrangement for IP management. A Central
Technology Management Committee 96 (CTMC) at the ICAR headquarters is chaired by
Director General, ICAR and is the apex decision-making body. All matters of policy
concerning IPR portfolio management and technology transfer/ commercialization are
decided by the CTMC. At the respective ICAR institutions, the Institute Technology
Management Committee 97 (ITMC), chaired by the Director of the Institution, is the final
decision making body for IP related matters/progress/concerns at that institute. Further,
selected institutes at the zonal level have been designated as the Zonal Institute Technology
Management Committee 98 (ZITMC). These committees take decisions for the IPR portfolio
management and technology transfer/ commercialization of the ICAR institutions in the zone
and also the inter-institutional matters in that zone. The ITMCs in that zone can seek advice
from zonal committees regarding their IPR portfolio and technology transfer matters. These
central, zonal and institute level committees will take steps to coordinate, harmonize and
synergize with other relevant committees at the ICAR headquarters/institutions.
In addition an Agro-Technology Management Centre (ATMC) has been established at
ICAR headquarters for IP management and technology transfer/ commercialization. ATMC
functions as the secretariat of CTMC at ICAR headquarters. At the level of ICAR institutions,
Institute Technology Management Units (ITMUs) have been established since 2007. These
units are responsible for IP protection/ management and technology transfer/
commercialization with internal capabilities as well as external legal and business experts
wherever required. The ITMUs act as Secretariat for the respective ITMCs. Selected ITMUs
90
Rao,N.H.and R.Kalpana Sastry.20004.Towards a policy for Towards a Policy for Management of
Intellectual Property in Public Agricultural Research Systems in India. Journal of Intellectual Property
Rights Vol. 9.May 2004 pp 242-259.
91
CSIR Guidelines for technology Transfer and Utilization of Knowledge base. Council of Scientific and
Industrial Research, New Delhi, January 2002.83p.
92
NAAS,2003.IPR in Agriculture. Policy Paper 19.National Academy of Agricultural Sciences. New
Delhi.
93
Cornell Intellectual Property Hand Book. Cornell Research Foundation, Inc., Ithaca. 26p.+
Appendices.
94
ICAR. 2006. ICAR Guidelines for Intellectual Property Management and Technology Transfer/
Commercialization. Indian Council of Agricultural Research, New Delhi. October 2006..pages120
95
Three state agricultural universities have now initiated the process. At the State level, the Government
of Kerala approved the Intellectual Property Rights Policy for Kerala, 2008. The policy envisages the
setting up of a specialized governmental body called the Supervisory Council on Intellectual Property
(SCIP) to oversee the activities of the proposed Kerala Traditional Knowledge Authority (KTKA) and
State Bio-diversity Board (SBB) with regard to the protection of traditional knowledge, to provide overall
supervision in matters relating to Intellectual Property Rights, and to follow up the recommendations of
the KTKA with regard to prosecutions for the violation of knowledge-users' rights. Government Order
G.O. (Ms) No.127/2008/Law Dated, 22/12/08.Government of Kerala.
96
Short title for Central IP Management and Technology Transfer/ Commercialization Committee
97
Short title for Institute IP Management and Technology Transfer/ Commercialization Committee
98
Short title for Zonal Institute IP Management and Technology Transfer/ Commercialization Committee
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 33

at national/central institutions in different zones are designated as Zonal Agro-Technology
Management Centres (ZTMCs) (Fig. 6).
4.5.2 Issues of Governance of IP Policy
Recognising the strong need to build capacity in manpower for an effective working of
its IPR domain, the ICAR has scaled the previously existing component of IPR and a new
scheme “Intellectual Property Management and Transfer/Commercialization of Agricultural
Technology Scheme has been initiated to cater to budgetary needs for capacity building at
the ITMUs, ZTMCs and ICAR headquarters 99 . The IPR &Policy Unit at ICAR headquarters
under the guidance of CTMC is spearheading efforts on capacity building on IP management.
NAARM is closely associated with this activity 100 . Since May 2007, a country wide campaign
has been launched and 9 thematic programs have been conducted to about 300 participants
across the ICAR institutes and SAUs.
4.5.3 Possible Types of IPs on Research Works in ICAR system
Apart from the institutional arrangements, the guidelines also define boundaries for
various IP generated in ICAR. While ownership revolves with solely with ICAR from research
work conducted through the use of funds from it; Collaborative projects results are to be
processed for IP ownership as per the agreements.
The guidelines clearly indicate that the provisions of Sec 3 101 in Indian Patent Act are
to be adhered to. Since the Act does explicitly specify that any method relating to the
treatment of plants is patentable it can be interpreted that the Act allows an invention to be
patented that is merely a method of making plants free of disease. Also, a process for
improving the plant’s value or increasing the value of the plant’s products is patentable. The
living entity of artificial origin such as microorganism, vaccines are considered patentable The
biological material such as recombinant DNA, plasmids and processes of manufacturing
thereof are patentable provided they are produced by substantive human intervention. In
addition, the processes relating to microorganisms or producing chemical substances using
such microorganisms are patentable. Patents are now permissible for “processes or methods
of production of tangible and nonliving substances” like enzymes, hormones, and vaccines,
processes using bioconversion, microorganisms, biologically active substances,
biotechnology, microbiology, and/or chemical substances produced by using genetically
99
ICAR Training cum workshops on IP and technology management. September 2008.ICAR .KAB-I,
Pusa, New Delhi.
100
ICAR. 2006. Chapter 12. Pages 66-69 supra at n.27.
101
As per Sec. 3 of the Patents Act, 1970 as amended in 2002 and 2005, the following are not
inventions within the meaning of this Act, - (a) an invention which is frivolous or which claims anything
obvious contrary to well established natural laws; (b) an Invention the primary or intended use or
commercial exploitation of which would be contrary to public order or morality or which causes serious
prejudice to human, animal or plant life or health or to the environment; (c) the mere discovery of a
scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living
substances occurring in nature; (d) the mere discovery of a new form of a known substance which does
not result in the enhancement of the known efficacy of that substance or the mere discovery of any new
property or new use for a known substance or of the mere use of a known process, machine or
apparatus unless such known process results in a new product or employs at least one new
reactant.;(e) a substance obtained by a mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance; (f) the mere
arrangement or re-arrangement or duplication of known devices each functioning independently of one
another in a known way; (g) void, (h) a method of agriculture or horticulture; (i) any process for the
medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or
any process for a similar treatment of animals to render them free of disease or to increase their
economic value or that of their products; (j) plants and animals in whole or arty part thereof other than
microorganisms but including seeds, varieties and species and essentially biological :processes for
production or propagation of plants and animals; (k) a mathematical or business method or a computer
programme per se or algorithms; (l) literary, dramatic, musical or artistic work or any other aesthetic
creation whatsoever including cinematographic works and televisions productions; (m)a mere scheme or
rule or method of performing mental act or method of playing game; (n)a presentation of information; (o)
topography of integrated circuits; (p) an invention which, in effect, is traditional knowledge or which is an
aggregation or duplication of known properties of traditionally known component or components.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 34

engineered organisms. While clones and new variety of plants are not patentable, the process
/ method of preparing genetically modified organisms are patentable subject matter. These
provisions make several outputs from research under ICAR qualify for getting IP protection in
form of patents, copyrights and designs. Various forms of research results may be patentable,
protectable in any form of other IP or not protectable under law for projects in ICAR are listed
in Table 4.1.
Fig. 6. Three- Tier Mechanism for IP Management in ICAR System
Director-General, ICAR
Central Technology
Management
Committee (CTMC)
Agricultural Technology
Management Centre (ATMC)/IPR
5 Zonal Institute
Management Centre
Management Centre
Management Centre
Management Centre
Management Centre
Zonal Technology
Zonal Technology
Zonal Technology
Technology
Zonal Technology
Zonal Technology
Management
(North-2)
(North-1)
(South)
(East)
(West)
Committees
(ZITMCs) one
each with five
ZTMCs
5 Zonal Institute
Technology
Management
Committees
(ZITMCs) one each
with five ZTMCs
66 Institute
21 Institute Technology
Management Centre
Management Centre
Management Centre
Management Centre
Technology
Management Centre
Management Technology
Technology
22 Institute
Technology
Technology
16 Institute
16 Institute
20 Institute
(North-1)
(North-2)
(South)
Committees
(East)
West)
(ITMCs) one each
with ITMUs at all
institutes of ICAR
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 35

Table 4.1 Types of IP 102 permitted on Results Generated in ICAR System
S. IP Legislation Forms of Research Results
No.
• Microorganism based formulations, viz bio-control
1. Patent The Patents Act,
1970 and its agents, biofertilizers, specific dairy catalysts, etc., and
amendments the processes for their use.
• Various genetically engineered microorganisms for an
array of specific uses, such as biodegraders, bio-
stimulants, bio-protectants, etc., and the processes
related to their application/use.
• Novel dairy and horticultural products, bye-products,
such as enzymes, and processes for their production
and use
• Plant based agro-chemicals, their purification and
testing processes, and various formulations.
• Diagnostic kits.
• Agricultural machinery, implements, and laboratory
equipment.
• High value compounds from terrestrial, aquatic and
living systems, such as animal rumen, Intenodal
cavities of bamboos, etc.
• Novel genes from microbial and higher biological
systems;
• Research tools of genetic engineering, such as gene
primers, constructs, and gene transfer tools like gene
gun, etc.
• Information systems with software, etc.
• Patentable part of know-how, for scaling up of
research results or manufacture of prototypes/
commercial products
• Microorganisms 103
• Processes leading to the development of Genetically
Modified Organisms (GMO) 104
• Designs of any commercial value, developed in ICAR,
2. Design The Design Act,
2000/ Copyright may be protected as registered designs
• Technologies involving considerations of shape (like
Law, 1957
shape of moldboard plough), configuration (like hitched
implements, mounted implements) and pattern (like
straight type harrow or triangular hoe) or farm
machine or any process equipment in prototype stage
• Collective mark for ICAR emblem
3. Trade Mark The Trade Marks
• Institutes to register their trademarks and use with the
Act, 1999
collective ICAR mark
• A collective intellectual property of the community
4. Geographical The
• Is not in the ICAR’s IPR domain
Indication Geographical
• Assistance and advice being given as ‘technological
Indications
backstopping’ to concerned parties 105 for processing
(Registration and
Protection) Act, as agricultural GIs of specific national and regional
1999 interests
• Institutional creations/ works, viz., publications, audio-
5. Copyright The Copyright
Act, 1957 visuals, designs, computer programmes, databases,
websites, cd-roms, software, multimedia product.
• Rights on individual creations as allowed by the law
permitted
102
Chapters 3,5 6 and 7. Supra at n. 27.
103
ICAR will not seek patent on a microorganism in the same form in which it is retrieved from its natural
habitat.
104
Animal/ poultry breeds, fish strains, etc., cannot be protected in India as patents or variety protection.
105
The GI Act provides for the facilitator role by some other relevant bodies in the registration and
protection of GIs
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 36

S. IP Legislation Forms of Research Results
No.
• ICAR varieties of field, horticultural and agro-forestry
6. Plant varieties The Protection of
Plant Varieties crops, including the new, extant, essentially derived
and Farmers’ varieties (EDV), and transgenic plant varieties
Rights Act, 2001 protected as per the PPV&FR Act/ plant variety
106
protection (PVP) laws of other countries
• A know-how available with ICAR, constitutes an
7. Undisclosed The Contract Act,
information 1872; Common important, potentially useful property, irrespective of
107
(Civil) Law whether it is patentable or not
• ICAR protects such know-how as trade secret
• Execute the confidentiality agreements in case of
usage by other parties
• ICAR shall also disclose the traditional knowledge
8. Traditional None
knowledge and related to the innovations made in its set up in all its
other assets patent/ IPR applications to the best of its knowledge
and information 108
• Recognizes that isolation of indigenous genes from
plant and animal systems and their application for
specific target traits has special significance and
prospects
• The bureaus for genetic resources (plants, animals,
fish and agriculturally important microorganisms )
make efforts to register, document and index these
knowledge items in public domain 109
The requirement for biological materials 110 including the deposit of the material at the
institution (as per the Budapest Treaty of which India is a signatory) are other conditions
needed to met and which the guidelines are indicated explicitly. However, the reference
samples deposited at the Genetic Resources Bureaus of ICAR are encouraged. Though
these are helpful for internal reference, against a premise that in case of any litigation, it is
likely that the evidence in the form of ‘such duly characterized and documented referral
sample that can be held valid at the discretion of a Court of Law’, the guidelines strongly
encourage ICAR institutions to initiate processes towards deposits at National Bureaus for
Genetic resources in ICAR system 111. Therefore, all ICAR institutions must take individual
initiative of depositing a referral sample at the respective National Bureaus for Plants,
Animals, Fish and Microorganisms Genetic Resources before filing a patent for any invention
based on biological material.
Procedures for registration for plant varieties as per the provisions of PPV&FR Act,
2001 have been clearly indicated in the guidelines in Chapter 7. As a policy, ICAR has
prioritized action to apply for the registration and protection under the PPV&FR Act of its
extant varieties of different crops which are already notified under the Seeds Act, 1966 but
have not completed 15 years from the date of notification. The National Bureau of Plant
106
The types of plant varieties for legal protection include :All extant varieties of ICAR, i.e., the
previously notified varieties under section 5 of the Seeds Act, 1966, which have not completed 15 years
from date of their notification; New plant varieties identified for their worth (value for cultivation and use)
in ICAR, which fulfill the essential criteria of distinctiveness, uniformity, and stability under the PPV&FR
Act and ICAR plant varieties and transgenic plants, protectable as per corresponding PVP laws of other
countries, in the form of PVP certificate, plant patent, etc.
107
Confidentiality agreement with the other party shall be entered into before any demonstration of the
technology or its validation or scaling up is undertaken.
108
The Indian Patents Act and some other IPR Acts require a disclosure of traditional knowledge used
in the invention/innovation.
109
This step is to discourage any patenting of the public domain traditional knowledge.
110
Section 10 of the IPA, 197
111
Five National Bureaus for Genetic Resources (one each for Plants, Animals, Fish and Agriculturally
important microorganisms) are functioning in ICAR system. All these serve as repository for collections
in various groups and are also used as referral agencies by National Biodiversity Authority established
under the BD Act, 2002.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 37

Genetic Resources (NBPGR 112 ) has been notified as the Nodal Institute to facilitate this
action. All other ICAR institutions are to provide all the necessary information required under
the PPV&FR Act/Rules for registration of extant varieties developed by them to NBPGR. This
includes the particulars required for the National Register of Plant Varieties, such as the
denomination of the variety, names of breeders involved in its development, pedigree details,
salient features of identity vis-à-vis most similar varieties, zone(s) of adaptation, performance
limits under specified situations particularly for DUS traits, etc. along with a referral seed
sample. NBPGR verifies the database of extant varieties developed and maintained at the
Bureau. It supplements the information with the molecular profile of the variety, if available.
Authenticated seed samples of the variety are to be deposited in the active and base
collections at the national gene bank at NBPGR. At the institutional level, process for applying
is through the respective ITMU/ZTMC. The protocol for the process has been detailed and is
in process in several institutes.
113
Since animal, poultry breeds, fish strains , etc., cannot be protected in India as
patents or variety protection are not patentable in India as the laws do not permit and no sui
generis system is available to animal breeds. However, it is well known that the farm animal
genetic resources 114 have remained the back-bone of Indian agrarian economy through
contributing milk, meat, egg, fibre, draught power and manure. India is one of the main
centres of animal biodiversity, particularly for domesticated animals, such as buffalo, goat,
sheep, cow, horse, camel etc. Improved breeds/ strains from indigenous animal biodiversity
over several decades developed in ICAR system constitute valuable assets. With an objective
to check their misuse or exploitation, ICAR is developing a system of their registration 115 and
documentation, at the respective National Bureaus of Animal and Fish Genetic Resources for
placing these assets through disclosure in the public domain thereby forestalling any
unforeseen patenting in other countries. For instance an authentic national documentation
system of valuable sovereign genetic resource with known characteristics, a mechanism for
“Registration of Animal Germplasm” has been initiated at National Bureau of Animal Genetic
Resources (NBAGR) 116 , This would provide protection to the valuable animal genetic diversity
and facilitate its access for genetic improvement of animal breeds 117.at national level. Similar
attempts are being done for fish 118 and agriculturally important microbes 119 .
These mechanisms of protection are often termed as ‘soft protection’. But these must
be viewed as attempts by the national system to pre-empt any unforeseen grant of patents on
animals/fish including the improved breeds/strains and important microbial populations from
India. The existing model existing system of plant germplasm registration at NBPGR is being
extended to register and document the elite and new breeds/strains of animals/poultry fish
and agriculturally important microbes developed in ICAR. As a policy, ICAR endeavours to
monitor the registration and documentation activity in plants, animals and fish in public
interest.
To elucidate the attempts for operationalization the IP policy and guidelines,
discussions with Policy Unit at the ICAR headquarters were made. A check list of 30
112
NBPGR is the nodal organization in India for exchange, quarantine, collection, conservation,
evaluation and the systematic documentation of plant genetic resources. At:http://www.nbpgr.ernet.in/
113
Sec.3( b)IPA,1970
114
As per FAO, Animal Genetic Resources (AnGR) refer to those animal species and the populations
within each species that are used, or may be used, for production of food and agriculture
115
Special Feature. Registration of farm animal germplasm. Indian Journal of Animal Sciences
78(1):127-131.January 2008.
116
Identification, Evaluation, Characterization, Conservation and Utilization of Livestock and Poultry
Genetic Resources
117
http://www.nbagr.ernet.in/GUIDELINES.htm
118
National Bureau of Fish Genetic Resources (NBFGR) was established for cataloguing and
conserving aquatic bioresources of India, genotyping, registration of aquatic germplasm, gene banking
and evaluation of endangered and exotic fish species At: http://www.nbfgr.res.in/index.htm
119
National Bureau of Agriculturally Important Microorganisms (AIMs) is the nodal Institute at national
level for acquisition and management of indigenous and exotic microbial genetic resources for food and
agriculture, and to carry out related research and human resource development, for sustainable growth
of agriculture. At:http://www.nbaim.org/
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 38

indicators 120 (Annexure v) for IP and technology commercialization was administered. Data
collected indicates that initial attempts towards operationalizing have been made. Budgetary
provisions with administrative sanctions 121 , creating the organisational bodies and training the
personnel in these bodies 122 have been the main focus of the IPR Unit at ICAR headquarters
since 2007. Three areas viz. like speedier process for extant varieties registration, faster
decision making channels and stronger IP portfolio making at institutes were identified as
areas that needed more attention and intervention needed. IP inventory and audit completed
(for IP used in research, including plant genetic resources) to assess freedom to operate,
mechanisms for valuation of IP in place and infringements are areas still to worked out. It is
also encouraging to note that several outputs have processed for patents in India.PCT filings
and few grants in other jurisdictions have also been initiated 123 .
120
Refer Annexure v for details
121
Administrative guidelines are included in the ICAR's IPR Guidelines, which are supported by a 5-year
XI Plan budget sanction. In addition, ICAR's Rules and Guidelines on Professional Service Functions
(Training, Consultancy, Contract Research and Contract Service) have been updated and aligned with
ICAR's IPR Guidelines. These are, however, under consideration of a Committee constituted for the
purpose
122
12 sensitization programs completed during 2007-08. Over 570 related scientists and staff of
National Agricultural Research System, that includes not just ICAR but also Agricultural Universities,
given exposure on all the dimensions of 'IPRs and Technology Transfer'
123
About 300 patents include both 'applied' and 'granted' from Indian Patent Office. 4 PCT applications,
2 granted in other countries
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 39

5. Project Directorate on Poultry (PDP)
“The very essence of the creature is novelty and hence
we have no standard by which to judge it”-. Carl R Rogers.
The animal based research institute under ICAR studied is this case study was the
Project Directorate on Poultry. The Project Directorate on Poultry (PDP) is a constituent of the
Indian Council of Agricultural Research and is located in Hyderabad in Southern part of India.
5.1 Background
In India the value of livestock output has grown by 6 percent per annum in real terms
between 1985 and 1992 124 .The dairy and poultry industries have contributed the major share
of this growth. In 1990, livestock accounted for about 32 % of the total value of agricultural
output. The increasing demand for livestock products is driven by sustained economic growth
and rising incomes. In addition, the income elasticity of demand for livestock products is high,
estimated at around unity for certain wealth groups in rural areas 125 . Poultry is now one of the
fastest growing segments of the agricultural sector in India today. While the production of
agricultural crops has been rising at a rate of 1.5-2 % per annum, in case of eggs and
broilers, the production has been rising at a rate of 8-10 % per annum 126 . The growth of the
poultry sector in India has also been marked by an increase in the size of the poultry
farm 127 .For example, in earlier years broiler farms used to produce a few hundred birds (200-
500 chicks) per cycle on an average. Nowadays, while units with less than 5,000 birds are
becoming rare, units with 5,000 to 50,000 birds per week cycle are common indicating the
increasing trends in poultry sector in India.
5.2 Genesis of PDP
The history of the Directorate dates back to the IV Plan 128 period, when it had its
origin in the form of All India Coordinated Research Project(AICRP) on Poultry Breeding 129 ,
an all India net work project launched by the ICAR with the objective of augmenting
commercial poultry production and achieving self-sufficiency in the country. The coordinating
unit of the project was located at the Poultry Research Division, Indian Veterinary Research
Institute (IVRI), which monitored the AICRP centres located in different State Agricultural
Universities (SAUs) and ICAR Institutes. The coordinating unit operated from IVRI till 1979,
after which it functioned from the newly established Central Avian Research Institute.
Considering the importance of the project in improving commercial large scale poultry
production in the country, the coordinating unit was elevated to the status of Directorate on 1st
March 1988 and established at Hyderabad and named as “Project Directorate on Poultry”.
The activities of the Directorate were simultaneously expanded by introducing new AICRPs in
124
World Bank (1999) India Livestock Sector Review: Enhancing Growth and Development. The World
Bank, Washington, D.C. and Allied Publishers, New Delhi.
125
Mehta Mehta, R., Nambiar, R.G., Delgado, C. and Subramanyam, S. (2003) Annex II: Livestock
Industrialization Project: Phase II – Policy, Technical, and Environmental Determinants and Implications
of the Scaling-Up of Broiler and Egg Production in India. IFPRI-FAO project on Livestock
Industrialization, Trade and Social-Health-Environment impacts in Developing Countries.
126
Supra at n.2
127
Czech Conroy.2004. Livestock Sector Growth and Poverty, with particular reference to India.Natural
Resources Institute.May 2004
128
The Government of India implements Five year plans. Each Five Year Plan addresses specific o
problems which have emerged either because of new political and economic developments in the
country and in the world, or as a consequence of progress already achieved. Fourth Plan Period was
1969 to 1974. At: http://planningcommission.nic.in/plans/planrel/fiveyr/default.html
129
All India Coordinated Research Project (AICRP) on Poultry in 1970 at Izatnagar, Uttar Pradesh.
Subsequently the unit was elevated as a full-fledged Project Directorate during 1988 and shifted to
Hyderabad. The objectives of the Directorate were to coordinate research at AICRP centers located
across the country and conduct research on the development and improvement of chicken lines for
commercial and rural poultry production
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 40

Poultry Nutrition and Housing and Management with centres located in selected SAUs, where
the breeding units were already in existence. The research work in these three areas
continued till March 1993, after which the nutrition and housing & management activities were
discontinued and the breeding project continued. In addition to coordination of AICRP, the
Directorate was given the task of developing suitable germplasm for rural poultry production,
maintenance and improvement of elite broiler and layer purelines (for meat and egg),
maintenance of random bred control populations, and the naked neck and dwarf gene lines
for tropical poultry production. The primary focus of research was on breeding.
5.3 Mandate
The Directorate formulated the Perspective Plan for a period of 25 years, called
“Vision 2025”. Keeping in view the present needs of poultry farming in the country and the
challenges ahead, the research agenda has been identified with the following programmes as
the priority.
• Development of germplasm for backyard/ free range farming for rural and tribal
areas
• Maintenance and evaluation of layer populations
• Maintenance and evaluation of coloured broiler populations
With an aim to realize its Vision of “enhancing productivity of chicken for household
nutritional security, income and employment generation” and the Mission of “developing and
propagating improved varieties of chicken for sustainable production under intensive and
130
extensive systems”, the mandate of the Directorate is:
• To coordinate and monitor ICAR-sponsored network research programmes
• To undertake applied research on genetics and breeding, and conservation of
improved chicken germplasm with supportive research on nutrition, disease
control and management.
• To lay emphasis on development of chicken varieties for meeting the needs of
rural/tribal and other under-privileged sections of the society.
5.4 Governance Model of PDP
The governance model for the Directorate is headed by a Project Director who is guided
and supported on an advisory role by the Management Committee and Research Advisory
Committee. The research progress is monitored and reviewed by the Research Advisory
Committee. The QRT has been constituted for evaluating the Directorate’s performance
during 2001-2006. The financial, administrative and other relevant issues were monitored by
the Institute Management Committee. The institute is publically funded through the ICAR and
through grants from externally funded research projects with or no collaboration with other
agencies. The collaborating agencies include SAUs, and network of AICRP centers or
schemes of departments like Department of Biotechnology (DBT 131 ) and other universities. It
also generates revenue of primarily through sale of germplasm to private firms and farmers.
The institute has staff strength of 64 personnel with 9 scientists who are supported in their
research activities by 14 technical staff personnel (Table 5.1).
130
Project Directorate on Poultry. Annual Report for 2007-08.Pages 81.
131
The setting up of a separate Department of Biotechnology (DBT), under the Ministry of Science and
Technology in 1986 gave a new impetus to the development of the field of modern biology and
biotechnology in India. In more than a decade of its existence, the department has promoted and
accelerated the pace of development of biotechnology in the country.
At:http://dbtindia.nic.in/uniquepage.asp?id_pk=4
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 41

Table 5.1 Staff Position
Grade Sanctioned In position Vacant
Director - RMP 01 01 Nil
Scientific 15 09 06
Technical 15 14 01
Administrative 13 10 03
Supporting 20 18 02
Total 64 52 12
Fig 7. Organanogram of PDP
Project Directorate on Poultry
Research Advisory Project Director Management Committee
AICRIP Headquarters
Research Central Administration
Rural Poultry for Poultry
at PDP Facilities
Poultry Engg for Meat
ICAR Population Farm Establishment
SVVU, KVAFSU,
Research Genetics &
Hyderabad Bangalore
Complex, Breeding
Agartala
Hatche Cash & Bills
Molecular
AAU,
Genetics
GADVASU,
Anand
Ludhiana Feed Purchases
JNKVV, Nutrition &
Unit & Stores
Jabalpur Physiology
CARI, CARI,
Library Audit &
Izatnagar Izatnagar
Accounts
Health
ARIS
Record &
KAU, OUAT, Cell
Dispatch
Mannuthy Bhubaneswar
Estate &
Security
Germplasm
supply &
Marketing
The four research units at the Directorate are: Population Genetics & Breeding,
Molecular Genetics, Nutrition and Physiology, and Health. There are nine scientists and
thirteen technical personnel in position. In addition to the Directorate is responsible for
coordination of coordinating unit under AICRP. There are 10 network centers under the
AICRP on Poultry Breeding, located across the country in SAU's and ICAR institutes (Fig 7).
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 42

5.5 Research Activities
The primary focus of research was on breeding with supportive research on nutrition,
health cover and molecular genetics formed an integral component of the research agenda of
the Institute. The four research units at PDP are mandated to carry out applied and
technology generating research on chicken involving breeding, duly supported by nutrition
and health cover with the emphasis on developing high yielding germplasm for rural and tribal
farming. A repository for two random-bred control populations (one each for layer and broiler
type of chicken) is also maintained along with a germplasm center to make available the
improved strains and stocks to the user agencies. Further research efforts are underway for
developing newer crosses that are tailor-made for adoptability under rural conditions.
Attempts are also on to provide better nutrition and health cover packages for pure lines,
parents and crosses. The molecular genetics tools also have been used in the breeding
programmes as complementary to the conventional popular genetics.
The Directorate coordinates and monitors the network project of All India Coordinated
Project on Poultry Breeding, being implemented in a total of 10 centres located in different
Agricultural/Veterinary Universities and ICAR institutes. The primary objective of the project is
to develop high yielding stocks of broilers and layers for commercial farming and thereby
make the country self-reliant. Besides, another component of rural poultry was added and
132 133
being implemented at Agartala and Jabalpur .
In addition to coordination of AICRP, the Directorate is mandated to develop suitable
germplasm for rural poultry production, maintenance and improvement of elite broiler and
layer purelines (for meat and egg), maintenance of random bred control populations, and the
naked neck and dwarf gene lines for tropical poultry production. These research programmes
focus on research relevant to societal needs, and application-oriented research towards
commercialization. These include the areas of poultry breeding, molecular genetics, applied
nutrition, immunomodulation, disease diagnosis and health management etc. During last few
years, research on nutrition, health cover and molecular genetics form an integral component
of the research agenda of the Institute with funding from in-house sources and several
external sponsors. A list of ongoing research projects underway is listed at Table 5.2.
Table 5.2. List of On-going Research Projects 134
S.No. Title
I. Institute sponsored projects
A. Breeding
1. Development of germplasm for backyard/ free range farming for rural and tribal
areas
2. Maintenance and evaluation of coloured broiler populations
3. Maintenance and evaluation of layer populations
4. Maintenance and evaluation of gene lines
B. Molecular genetics
5. Molecular characterisation of layer and broiler germplasm
6. Candidate gene approach for QTL analysis pertaining to egg production traits in
layer chicken
C. Avian Nutrition & Physiology
7. Development of nutritional package of practices for rural poultry germplasm during
nursery rearing
8. Nutrient requirements and feeding schedules of coloured broiler populations
9. Nutrient requirements and feeding schedule for parent lines of Vanaraja
10. Effect of supplemental organic Zn on coloured broiler breeders and their progeny
132
In State of Tripura, North-Eastern part of India
133
Central India
134
Supra at n. 7.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 43

11. Effect of semen quality parameters on fertility in chicken
12. Collaborative project with CIMMYT on “Utilization of quality protein maize in poultry
diets”
D. Avian Health
13. Molecular identification, characterization and control of infectious neoplastic
diseases
14. Disease surveillance, monitoring and control in poultry germplasm at PDP
15. Expression profiling and molecular characterisation of Toll-like receptors in chicken
II. Collaborative projects*
16. Improvement of backyard poultry in Kashmir Valley (SKUAST, Srinagar)
III. Ad-hoc schemes* (DBT)
17. Quantitative Trait Loci (QTL) identification in broilers
*Funded through external agencies
The concerted efforts made by AICRP centers resulted in the release of certain
promising crosses for commercial exploitation. The potential of these crosses was evaluated
in Random Sample Poultry Performance Tests and found them to be at par with most of the
commercial crosses that are being marketed by the industry. The promising crosses released
from AICRP centres are tabulated in Table 5.3.
Table 5.3. Promising crosses
Layer crosses Broiler crosses
ILI-80 (CARI, Izatnagar B-77 (CARI, Izatnagar)
ILM-90 (KAU, Mannuthy) IBL-80 (GADVASU, Ludhiana)
ILR-90 (SVVU, Hyderabad) IBB-83 (KVAFSU, Bangalore
IBI-91 (CARI, Izatnagar)
5.7 Consultancy, Patents, Commercialization of Technology
The research at the Directorate has resulted in impacting the stakeholders. The
Directorate paid special attention for evolving superior varieties over the existing native
chicken breeds and developed exclusively for improving poultry production in rural and tribal
areas. The two crosses, Vanaraja and Gramapriya 135 have been widely distributed across
different parts of the country.
These successes have led in the Directorate playing a pioneering role in popularizing
the concept of rural poultry production. The, other crosses, Krishibro and Krishilayer
developed for intensive commercial farming have been popular among the farmers. These
crosses are distributed in substantial numbers to farmers and other user agencies in the form
of hatching eggs, day-old chicks, parent chicks and grown up chicks (Table 5.4). Besides, a
total of 8,464 embryonated eggs were supplied to Govt. agencies for vaccine production.
There are still no attempts for patents or other IPs.
135
These two varieties have been extremely popular and supplied to user agencies in different parts of
the country covering the southern, northern, eastern and northeastern states, including Jammu &
Kashmir, Lakshadweep, the North East and Andaman & Nicobar Islands.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 44

Table 5.4. Germplasm supplied during 2007-08 136
A. Hatching eggs No.
Gramapriya 163043
Layer 8960
Vanaraja 39008
Krishibro 26703
Control broiler 1260
Total 238974
B. Day old chicks
Gramapriya 15098
Gramapriya parents 7110
Layers 4303
54488
Vanaraja
Vanaraja parents 6168
5675
Krishibro
Total 92842
16853
C. Grownup birds
5.8 IP Activities
Since 2006, the Directorate has initiated the implementation of IP policy of the ICAR.
As part of its initiation, the ITMC and ITMC were formed in 2007. The constitution of these
committees is as per the ICAR guidelines with, the ITMC being chaired by Director of the
Institution. This is the highest decision making body relating to all issues of IP management
and technology transfer/commercialization. The ITMC has the Director as its Chairman, with
one member who is the Head of Division, two Technical Experts (Scientists of the institution)
and one expert in IPR (Scientist from ICAR institutions in the zone). The Research Council of
Institute is also represented by its Secretary. This is to keep a continuum with research
activities of the institutes.
As part of this study, the questionnaire administered to the scientists revealed that
137
inputs from this institute during formalizing of ICAR guidelines were meager . This is
probably type of research done earlier which was more focused on the coordination of
research activities in various AICRP centers. The Directorate initially was mandated to
coordinate research at AICRP centers located across the country and conduct research on
the development and improvement of chicken lines for commercial and rural poultry
production. After the finalization of the Vision 2025 document and re-look at its mandate,
focus on new and more areas of research is now emphasized. The scientists are now aware
of new IP regime and have started tuning their research programmes towards the adherance
of the guidelines.
Most scientists agreed with the importance of IP but reflected the lack of awareness,
knowledge and training. Only two scientists have attended awareness programs of ICAR.
However, all felt the need of IP regime and the IP policy of ICAR with guidelines useful to
strategize their research outputs. To the question on of public sector as a holder of IPR, it was
opined that this sector should take lead role considering the clientele in India continues to be
dependent on the NARS for augmenting better productivity levels. There will not be any
problem if public sector becomes a major holder of IPR. Public sector should take lead role in
implementing IP rights and should become major holder of IPRs in agriculture.
To the query of identification of IPs from their respective projects, there was well
documented response clearly indicating their interest and awareness. A summary of possible
136
The Directorate supplies these to several user agencies including Industry at nominal price
137
Responses to questionnaires tabulated and appended as Annexure v.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 45

IPs being generated from the research being pursued by the scientists is tabulated in Table
5.5. It is interesting to note that only patents form major category wherein biotechnological
tools, processes and value additions to formulations formed major areas. Though the policy
ensures that ICAR scientists can generate other IPs like designs, copyrights or trademarks,
the emphasis here was on patents.
Table 5.5. List of Possible IPs as identified by the Scientists
Category of IPs Type
• Recycling of poultry house wastes as feed and fertilizer
and different Poultry feeds, protocols, value added
Patents poultry feeds, nutritional diets
• Genetic marker for economic trait
• Diagnostic kits
• molecular markers, tools
• New poultry semen extenders
• Poultry semen freezing protocols.
• Registration of coloured broiler male line (PB-1),
Registration –
Soft protection coloured female line (PB-2) Krishibro.
• Registration of gene lines & Molecular characterization
of layers and broilers
Keeping the nature of the work at the Directorate and its mandate to cater to its
stakeholders, promising lines and the fact that the law in India does not permit patents on
animal breeds, the need to document the indigenous breeds and germplasm was voiced. This
is in line with ICAR policy which clearly states that since there is no IPR enabling provision
under the existing Indian law for elite animal/ genetic material in the public domain. The
Directorate has now initiated the process for extending the existing system of plant
germplasm registration at NBPGR to register and document the elite and new breeds/strains
of animals/poultry and fish developed in ICAR, at the National Bureau of Animal Genetic
Resources (NBAGR) 138 . It may be pointed that nearly 15 chicken breeds with identified home
tracts and complete data have been registered by NBAGR since 2007 139 . The Directorate is
also in the process of documenting the available materials in the institution and through the
AICRP programmes it co-ordinates. Through a decision making process initiated through its
ITMC 140 , it is now preparing the documentation for application registration of poultry breeds to
NBAGR 141 . Discussions with the scientists revealed that the process of registration is a
welcome step and the Directorate has large sources of breeds and elite lines needed to be
registered. There is need for building a good database with details of all entries so that the
application process with complete technical data needed for filing with NBAGR may be
speeded up.
5.9 IP Check list
An analysis of the indicators for institutionalization of IP policy at the Directorate
indicates positive trends in the initiation of the process (Table 5.6). More steps for awareness
creation at the institute, evolving a system from project initiation, building better portfolios
need more attention. A transparent information IP management system though standard
inventories, audit need to be in place to hasten the operationalization of the guidelines
138
Discussions with ADG(Animal Sciences) during his lecture at ICAR Training-cum-Workshop on IP
and Technology Management , ICAR Training-cum-Workshop on IP and Technology Management,
ICAR Res. Complex, for NEH region Barapani, Nov.19, 2008. Also refer: Special Feature. Registration
of farm animal germplasm. Indian Journal of Animal Sciences 78(1):127-131.January 2008.
139
As in :http://www.nbagr.ernet.in/Accession%20number%20for%20Breeds.htm#registration
140
ITMC meeting on December 19,2008 at the Directorate.
141
A format of the application for registration is available at :
http://www.nbagr.ernet.in/GUIDELINES.htm
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 46

Table 5.6: Check list of Indicators for Institutionalization of IP Management
No Indicator Yes/No
1 Institutional vision and mission defined Yes
2 Guiding principles of IP policy listed Yes
3 IP management Unit constituted and staff trained 4 trained, others
Needed
4 IP management budget allocated Yes
5 IP management general guidelines issued Yes
6 IP management guidelines for specific categories of IP issued Yes
7 IP management administrative guidelines issued Yes
8 IP inventory and audit completed (for IP used in research, including No
genetic resources) to assess freedom to operate
9 Existing databases, software, websites, multimedia products, CD- No
ROMs and publications protected by copyright
10 Copyright provisions clarified and its management regularized for Yes
different categories
11 Existing germplasm, lines, breeds registered or documented in Initiated the process
national repositories
12 IP portfolio of existing commercializable IP available No; in public domain
13 IP decision-making flowcharts available Yes
14 IP awareness/capacity building programmes initiated with Yes
scientists/ faculty
15 IP/patent search facilities made accessible No
16 Proper research record books/registers designed to maintain Yes
research records, and made available
17 IP disclosure forms designed for scientists to intimate ITMC about Yes
new IP
18 Materials Transfer Agreements standardized Yes
19 Guidelines for use of third party IP in place Yes
20 Templates for confidentiality agreements (CAs) available Yes
21 Proforma and guidelines for MOUs for negotiating collaboration Yes
with private sector standardized
22 Proforma and guidelines for MOUs/agreements for negotiating Yes
collaboration with other national and international organizations
23 Mechanisms for valuation of IP in place Yes
24 Guidelines for sharing of incentives (between inventors and Yes
organization) in place
25 IP policies, management guidelines and MTAs/MOUs/CAs made Yes
available on line
26 Compliance by scientists and employees in routine use of MTAs, Yes
CAs
27 Compliance by research managers in observing guidelines, MoUs, Yes
and other agreements for collaborations with private sector and
other organizations
28 IP matters coordination with other agencies –IP granting agencies/ Yes
offices, legal firms
29 Procedures for protecting infringements against IP owned by the No
institution
30 Capacity building initiatives Yes
31 No of technologies patented protected Registration of 9
breeds initiated
32 No. of technologies commercialized 3
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 47

No Indicator Yes/No
33 Institutional earnings from royalties and commercialization 60 lakhs INR
Adapted from Egelying 142 and NHRao 143
It is gratifying to note that there is trend of commercialization the technologies
generated and the Directorate has well-earned reputation with its stakeholders in the transfer
of its technologies. The templates for MOUs, agreements and other documents being in
place, the Directorate can use a more professional and legalised system approach to transfer
the research results and technologies and build better public-private partnerships. Since the
initial processes of defining the vision and policy are already in place and with a positive
support from the ICAR headquarters, the Directorate should be able to accelerate its efforts to
utilize the IP policy too for achieving its mandate and bettering livelihoods of its stakeholders
as well as build a strong IP portfolio.
142
Egelying, H. 2005. Evolution of capacity for institutionalized management of intellectual property at
international agricultural research centers: a strategic case study, AgBioforum, Vol 8, No.1, pp 7-17
143
N.H.Rao. 2006. Intellectual Property Policy: Institutionalizing Intellectual Property Management in
Public Agricultural Research Systems. Paper presented at Assam Agricultural University. March 2006.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 48

6. Directorate of Rice Research (DRR)
“Great discoveries and improvements invariably
involve the cooperation of many minds. I may be given
credit for having blazed the trail, but when I look at the
subsequent developments I feel the credit is due to
others rather to myself.” Alexander Graham Bell
The crop- based research institute under ICAR studied is this case study was the
Project Directorate of Rice Research (DRR). The Project Directorate is a constituent of the
Indian Council of Agricultural Research and is located at Hyderabad, India.
6.1 Background
Rice is major staple food and a way of life for several stakeholders in India. Globally,
India ranks first in area 144 and second in production. At the country level, this crop is major
crop and accounts for 37 percent of total area and 43 percent of total food grain production.
The green revolution in India was partially due to phenomenal increase in rice production in
the country. The NARS continues to focus on the green revolution technology model of
breeding short-duration high yielding cultivars, irrigation and intensive use of fertilizers and
other agro-chemicals. But the deceleration in growth rates in recent times is matter of concern
and new solutions to break these barriers are being worked. Since the rice industry has an
important socio-economic impact in India and the rice sector is a relatively important part of
the national economy, research investments by the ICAR continue on its own or through new
partnerships.
6.2 Genesis of DRR
The Directorate of Rice Research (DRR), formerly All India coordinated Rice
Improvement Project (AICRIP), was established by the Indian Council of Agricultural
Research (ICAR) in 1965 with its national headquarters at Hyderabad to organize and
coordinate multi-location testing of genetic lines and technologies for crop production and
protection generated across the country. The Project was elevated to Directorate of Rice
Research in 1985 with an added mandate of research in the thrust areas of irrigated rice.
The All India Coordinated Crop Improvement Projects (AICCIP) are experiments in
the realms of applied research established by ICAR first in Maize in 1957 closely followed by
Wheat and Rice in mid-sixties. The All India Coordinated Rice Improvement Project (AICRIP)
which began functioning since 1966 coordinates the multidisciplinary and multi-location
testing of varietal, crop management and crop protection technologies across diverse
ecosystems for increasing and stabilizing the rice production in India from DRR. The
Directorate as the nodal agency has adopted unique model which facilitates joint programme
planning and implementation of its multi-location testing programme, exchange of germplasm
and breeding material, mechanism for transfer of technology and to conduct strategic
research for irrigated ecology. More than 200 scientists from 46 funded and about 70
voluntary centres of State Agricultural Universities, State Departments of Agriculture and
ICAR institutes carry out planned trial/experiments of Breeding, Entomology, Pathology,
Agronomy, Soil Science and Plant Physiology disciplines.
6.3 Mandate
The goal of the institute is to ensure food and nutritional security and augment the
livelihoods of rice farmers in India. The Directorate achieves this goal by focussing on
developing technologies to enhance rice productivity, resource and input use efficiency with
the mandate as follows:
144
http://beta.irri.org/statistics/index.php?option=com_content&task=view&id=413&Itemid=192
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 49

• To coordinate multi-location testing at national level to identify appropriate varietal and
management technologies for all the rice ecosystems
• To conduct strategic and applied research in the major thrust areas of irrigated rice
aimed at enhancement of production, productivity and profitability and at preserving
environmental quality
• To initiate and coordinate research networks relating to problems of national and
regional importance
• To serve as major centres for exchange of research material and information to
accelerate the pace of technology transfer through frontline demonstrations, training
programmes and ICTs.
• To develop linkages with national, international and private organizations for
collaborative research programme
• To provide consultancy services and undertake contractual research
6.4 Governance Model of DRR
In order to fulfil the mandate effectively, DRR is headed by a Project Director and is
organised into various departments/sections at its headquarters. These are Plant Breeding,
Hybrid Rice, Biotechnology, Crop Production with Agronomy, Soil Science, Plant Physiology,
Agricultural Engineering, Geographic Information System, Statistics; Crop Protection with
Entomology, Plant Pathology, and Training/Transfer of Technology. The research
programmes of DRR are supported by centralised facilities of farm, Administration, Accounts,
Technical Cell and Library. The DRR has also been fulfilling its major mandate of AICRIP
involving multilocation research by active participation of 196 scientific personnel in various
disciplines in the 46 funded centers 145 .
Table 6.1 Staff Position 146
Grade Sanctioned In position Vacant
Director- RMP 01 01 Nil
Scientific 61 45 01
Technical 55 53 02
Administrative 34 33 01
Supporting 42 29 13
Forty five scientists at the headquarters organise lead research in frontier areas of
irrigated rice and transfer of technology through formal training programmes and on farm
frontline demonstrations. This team of scientists is assisted by 54 technical, 31 administrative
and 24 supporting staff (Table 6.1).
6.5 Research Activities
The Directorate has been engaged on systematic research on rice combining the
conventional methods with modern technologies. Starting with recombination breeding,
mutation breeding, gene introgession development of hybrids and gene introgression through
biotechnological tools has been initiated. With the advent of biotechnological innovations,
marker aided selection for major genes conferring resistance to biotic stresses is being
employed in improving rice varieties. Projects are proposed and discussed at the Institute
Research Council (IRC), which is the approving body for the projects. More than 40 projects
encompassing the various disciplines across conventional disciplines to cutting-edge
technologies in biotechnology and molecular biology are now under progress 147 .
145
http://www.drricar.org/
146
Directorate of Rice Research. 2007.Annual Report 2006-07.Directorate of
Research.Rajendranagar.Hyderabad-500030,India.
147
Details in Annexure vi
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 50

Fig. 8. Organogram of DRR
Project Director
Research Advisory Institute Management
Committee Committee
Institute Administration & Service & AICRI
Network
Research Accounts Support Projects
Council
Project Monitoring & Farm, Workshop, Hybrid Rice
Research Technical Cell, ARIS, Biotechnology Frontline
Library, Hostel
Sections GIS & Statistics Demonstrations
Transfer of Technology
Crop Crop Crop
& Training
Improvement Productio Protection
Linkage with SAUs,
Agronomy
Genetics & Entomology other ICAR Institutions,
Soil Science
Plant Breeding Plant State Agriculture
Plant
Hybrid Rice Departments, DAC,
Pathology
Physiology CSIR, DBT, IRRI,
Biotechnology
UNDP/FAO
Agril
Engineering
The Directorate has strong and wide network of linkages and collaboration with
several organizations in India and abroad. Apart from AICRIP 148 , there are research projects
under the hybrid network programmes with 12 centres. It is coordinating one network project
and participating in three network programs. It also has other collaborations with universities
like Delhi University, Centre for Cellular and Molecular Biology (CCMB), Centre for DNA
Fingerprinting and Diagnostics (CDFD).These are public institution outside the ICAR-SAU
system. At international level, it collaborates with Consultative Group on International
Agricultural Research (CGIAR) institutions like International Rice Research Institute (IRRI)
and International Crops Research Institute for Semi-Arid Tropics (ICRISAT). Several
government agencies like Department of Science (DST), Department of Biotechnology (DBT),
and ICAR system also fund the projects 149 . In addition, several scientists are recognised
academic guides/supervisors for students who are affiliated to several universities in across
the country. The research work is done using the facilities at the Directorate under the
supervision of its scientists.
While the lead research in various disciplines is done at the Directorate itself, the
AICRIP projects account for co-ordinated research. An approximate 20,685 elite lines
148
Under AICRIP ,DRR has 46 centres affiliated to 22 SAUs; State departments and five ICAR
institutes
149
Detailed list in Annexure viii
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 51

developed by different cooperating centers have been tested across the country with
partnership of private sector extended in testing the material in the programme as per
guidelines and payment of prescribed fee. Every year about 2000 experiments/trials are laid
out in rice. The testing programme follows a three tier system involving one year of Initial
Varietal Trial (IVT) i.e., which constitutes the first level of testing after assigning the Initial
Evaluation Trial (IET) number to each one of the nominated entries developed by different
cooperating centers and two years of Advance Varietal Trial (AVT - 1 and AVT - 2) in order to
identify the elite lines with consistent high yield potential which is better than the best check in
each of the experiments as specified, taking into consideration the duration limits of various
rice growing areas, situations, seasons and prevailing cropping patterns. Simultaneously the
elite breeding lines are screened at hot spot locations as well as under artificial conditions for
generating information on their pest/disease resistance/tolerance, grain quality attributes and
agronomic performance. Thus, the best performing breeding lines on three years of testing
across the regions for a particular ecosystem are identified by the Variety Identification
150
and then approved for release and
Committee (VIC) in the All India Rice Workshop
notification by Central Sub-Committee on Crop Standards, Notification and Release of
Varieties (CSCS&NRV) for commercial cultivation and the top location specific entries are
released by the State Variety Release Committee (SVRC) for a particular state. This
multilocation evaluation system, which has also become a model for international nurseries
evaluated worldwide by the CGIAR institutions, has recorded outstanding merit 151 .
This systematised approach has led to the testing and release of 836 varieties
including 33 hybrids for all the ecosystems till 2007 152 . Among these 98 varieties including 10
hybrids were released through Central Sub Committee on Crop Standards, Notification and
Release of Varieties (CSCS & NRV) while the State Variety Release Committee released 738
varieties and 23 hybrids. Of these varieties, 372 are for irrigated areas, 114 for rainfed
uplands, 155 for rainfed low lands, 37 for semi deep and 14 for deep water situation, 44 for
high altitudes, 31 for saline and alkaline areas, 1 for aerobic, 10 for boro and 49 aromatic long
and short grain varieties were released. 26 export quality basmati rice varieties have also
been released by the programme. DRR itself has developed 51 varieties and 2 hybrids for
different ecologies 153 . Apart from this, several technologies across the disciplines of
Biotechnology, Crop Production with Agronomy, Soil Science, Plant Physiology, Agricultural
Engineering, Geographic Information System, Statistics; Crop Protection with Entomology,
Plant Pathology have contributed to several technologies which have been success stories
with its stakeholders 154 , 155.
6.6 Activities under IP and Commercialization of Technology
6.6.1 Before the Formulation of ICAR IP Policy
DRR has been supporting IP linked activity for the ICAR even before the IP policy.
Following the grant of patent to RiceTech Co. by the USPTO in 1997, the Government of
India constituted a High–Level Task Force to examine the possibilities of filing for a re-
examination. ICAR was also part of re-examination case and the scientists from DRR
provided technical evidence 156 .
150
Workshop are held annually for reporting the results and planning trials for ensuing season
151
N.Shobha Rani,GSV Prasad,IV Subba Rao,I Sudharashan,Manish K Pandey,VR Babu, T Ram,G
Padmavathi.KMularidharan,IC Pasulu and BC Viraktamath. 2008. High yielding rice varieties of India.
Technical Bulletin No.33. Directorate of Rice Research, Rajendranagar, Hyderabad 5000030. India.
188pp.
152
Supra at n9.
153
As quoted in paper titled “Licensing of ICAR Plant Varieties/hybrids/inbred lines for commercial use
by private seed agencies in rice”. In: Background Information for Group Meeting on High Volume
Hybrids/Parental linesheld on September 29, 2008 at DRR, Hyderabad.
154
Several success stories of technologies generated at the Directorate have been eneumerated.
Nearly 27 technical bulletins (2003 to 2007) are listed at http://www.drricar.org/. Few stories are
uploaded at : http://www.drricar.org/sucstories.htm
155
N.Shobha Rani and L.V.Subba Rao .2004.Sustainable management of plant Biodiversity- a success
story.Technical Bulletin.No 10.
156
DRR provided technical evidence and related technological documents as part of prior art evidence
and also catalogues of availability of seed in DRR germplasm collection.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 52

After the enactment of the PPV&FR Act, 2001, the National Guidelines and
descriptors for DUS test in rice were prepared and published by DRR for the rice breeders of
the AICRIP 157 , 158 . The final versions of the approved guidelines were published by the
Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Authority in 2007 159 . The ICAR
has approved DRR as the nodal centre for DUS testing. Hence, the Directorate has the
responsibility to conduct DUS testing for the PPV&FRA. As a preparation towards this role
and to fulfil this responsibility, DRR has made major effort in collecting reference collections of
varieties (RCV) and their characterization and digitalization. The RCVs are used against
candidate varieties since the start of DUS testing in May 2007.
6.6.2 After the Implementation of ICAR IP Policy
Since 2006, the Directorate has initiated the implementation of IP policy of the ICAR.
As part of its initiation, the ITMC and ITMU were formed in 2007. The constitution of these
committees is as per the ICAR guidelines. The ITMC is chaired by the Director, DRR. This is
the highest decision making body relating to all issues of IP management and technology
transfer/commercialization has nine scientists to take decisions on IP management.
The questionnaire circulated to the scientists as part of this study, revealed that most
of them felt that they did not play any role during the initial discussions in formulating the IP
policy of ICAR. But they contend that IPRs are needed considering the fact that India is a rich
agri-biodiversity centre with lot of land races along with associated traditional knowledge.
Most of them have attended various training programs but still felt that there is scope for more
exposure to remove confusion. In fact, such awareness they felt is necessary for all
160
stakeholders in rice value chain . The ITMC has conducted in-house awareness program
during January 2008. Apprehensions that IPR may prove hindrance to the public sector
organizations reaching to the needs of poor farmers continue to be there. However, the
formulation of a policy and the implementation through guidelines was considered a step
worth pursuing.
Several forms of IP like patents for outputs from research using biotechnological tools
were identified as possible IPs. (Table 6.2). In addition, trademarks and copyrights and
registration of rice varieties were also considered as important IPs from the research.
Table 6.2. List of Possible IPs as identified by the Scientists
Category of IPs Type
• Novel approaches for the management of pests,
resistant germplasm, mass production and
formulation techniques for bio control agents.
• Bio fertilizers, bio-control agents
• Plant growth promoters
Patents
• Useful enzymes
• Novel genes from microorganisms for use in
recombinant DNA technology
• Gene sequences
• Diagnostic kits
• Molecular markers, tools
• Seeds
Trademarks
• Bio-formulations
157
N Shobha Rani, LV Subba Rao, BC Viraktamath and B Mishra.2004.National Guidelines for the
conduct of Distinctness, Uniformity and Stability-Rice, Oryza Sativa.
158
N Shobha Rani, LV Subba Rao and BC Viraktamath .2006.National Guidelines for the conduct of
Distinctness, Uniformity and Stability-Rice, Oryza Sativa.
159
General Guidelines to the examination of DUS and the development of harmonized descriptions of
plant varieties. SG/01/2007.20 February 2007.Available at : http://www.plantauthority.in/
160
Details in Annexure ix
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 53

•
Copyrights Publications
• Databases
• Digital information
• Multimedia products
• GIS related databases
• Designs on tools, machinery
•
Registration Genetic stocks
• Elite and unique lines of germplasm
• Fixed breeding lines, segregating lines,
• New varieties, hybrids
• Multi-biotic resistance rice varieties
• Rhizosphere microbial community
• CMS lines, maintainers, restorers, parental lines
• Transgenics
• EDVs
• Hybrids
• Innovative strategies of marker-assisted breeding
In case of DRR, crop variety is probably one of main outputs emanating from lead
research at the head quarters and also through the coordinated research under AICRIP
centers. All forms of plant varieties including new varieties, hybrids, parental lines of hybrids,
warrant registration under the Indian Law. The scientists also have identified these as outputs
expected from their research which may need some form of IP protection. Presumably, IP in
agriculture being still a concept, the focus of most scientists was on filing for registration
under the new Indian law and hence at the national level only. However, soft registration of
genetic stocks / elite lines which are unique and have potential attributes of academic,
scientific or commercial value are encouraged to be registered with NBPGR.
In addition, the immediate focus of DRR is to process the registration of the extant
notified varieties (ENVs). The Indian Plant Variety law is perhaps the only legislation which
has given the option to institutions and others to register varieties under this category. ICAR
161
to utilise this option given by PPV&FR Authority 162 . As per the
encourages its system
PPV&FR Act, an extant variety is the variety available in India which is either (i) notified under
section 5 of the Seeds Act, 1966 (54 of 1966) or (ii) a farmers’ variety or (iii) a variety about
which there is common knowledge or (iv) any other variety which is in public domain. This
option gives an opportunity to obtain legalised protection for several of varieties which are
already in the public system and still continue to be catalytic in enhancing productivity levels
of crops like rice.
The process for ICAR institutions includes filing the filled in application from along
with technical questionnaire (TQ).This along with a referral seed sample is sent to NBPGR
which forwards to the PPV&FR Authority on behalf of ICAR. Rice crop being among first set
of notified crops by the Authority, DRR has initiated the process. 123 ENVs have been sent to
NBPGR with details of particulars required which were forwarded to PPV&FR Authority and it
is expected that the final stage of registration will be completed in few months. About 70 more
applications in rice are in pipeline. (Table 6.32)
Table 6.3. Extant Notified Rice Varieties (ENVs) registration 163
Stage in process Number
ENVs sent to PPV&FRA for registration 123
161
“Protection of all extant varieties of ICAR, which have not completed 15 years from the date of
notification shall be taken up under the PPV&FR Act as a priority activity in a time-bound manner ”Page
35. ICAR. 2006. ICAR Guidelines for Intellectual Property Management and Technology Transfer/
Commercialization. Indian Council of Agricultural Research, New Delhi.
162
The deadline given by PPV&FR Authority is for three years starting May 2006.
163
Status as on 31st October, 2008
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 54

ENVs ready for submission to PPV&FRA through 21
NBPGR
ENVs under progress for filling 50
It is necessary to execute an extensive maintenance of seed of RCVs, example
varieties, exotic varieties and candidate varieties. The scientists indicated that awareness on
intricacies of process for DUS testing for rice breeders especially in AICRIP system needs to
be strengthened through more capacity building programs if the filing process has to be
hastened before the set deadline. Several varieties are part of large testing system spread all
over the country. As pointed by the scientists, there seems to be a lack of clarity on the
responsibility of testing agency (primary or secondary testing centre) in terms of filing the
applications. Policy intervention on this could avoid duplication of filings which would save
resources including time.
Considering the quantum of research at DRR through collaboration in the centers or
through external funded projects, there is an urgent need to put in place agreements with the
collaborators and sponsoring agencies. There should be a systematized activity through the
ITMC. Most members opined that that the ICAR guidelines have improved the awareness of
the scientists in the area of IP management and provide a framework for drafting of MTAs for
commercialization and transfer of technology generated. They visualize no major operational
problems for implementation while institutionalizing the guidelines. With necessary support in
terms of man power and infrastructure the systematization can be done even though the
system is intricately complex and involves several trained personnel and agencies. However,
as most scientists have major responsibilities in the lead and co-ordinated research programs
of the Directorate, premier time allotment for these activities under ITMCs may be difficult
especially when the research is oriented as season-bound field work. It may be necessary to
have full time person overseeing this activity at DRR with guidance from the ITMC. The
enormous work under plant variety registration and the added role of DRR as the DUS testing
164
center warrants a full time appointee , who may be well versed with the legal intricacies and
technology transfer methods.
6.7 IP Check list
An analysis of the indicators for institutionalization of IP policy at the Directorate
indicates positive trends in the initiation of the process (Table 6.4).
Table 6.4. Check list of Indicators for Institutionalization of IP Management
No Indicator Yes/No
1 Institutional vision and mission defined Yes
2 Guiding principles of IP policy listed Yes
3 IP management centre constituted and staff trained Yes, Partially
4 IP management budget allocated Yes
5 IP management general guidelines issued Yes
6 IP management guidelines for specific categories of IP issued Yes
7 IP management administrative guidelines issued No
8 IP inventory and audit completed (for IP used in research, No
including plant genetic resources) to assess freedom to operate
9 Existing databases, software , websites, multimedia products, No
CD-ROMs and publications protected by copyright
10 Copyright provisions clarified and its management regularized No
for different categories
11 Existing plant varieties protected as extant varieties In progress
12 IP portfolio of existing commercializable IP available To be
initiated
13 IP decision-making flowcharts available Yes
14 IP awareness/capacity building programmes initiated with Yes; partially
scientists/ faculty
164
ICAR has made budgetary and administrative provisions for this.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 55

No Indicator Yes/No
15 IP/patent search facilities made accessible No
16 Proper research record books/registers designed to maintain Yes, Partially
research records, and made available
17 IP disclosure forms designed for scientists to intimate ITMC No
about new IP
18 Materials Transfer Agreements standardized Yes
19 Guidelines for use of third party IP in place Yes
20 Templates for confidentiality agreements (CAs) available Yes
21 Proforma and guidelines for MOUs for negotiating collaboration Yes, Partially
with private sector standardized
22 Proforma and guidelines for MOUs/agreements for negotiating No
collaboration with other national and international organizations
23 Mechanisms for valuation of IP in place No
24 Guidelines for sharing of incentives (between inventors and Yes
organization) in place
25 IP policies, management guidelines and MTAs/MOUs/CAs made No;ICAR
available on line guidelines
are available
26 Compliance by scientists and employees in routine use of MTAs, Yes
CAs
27 Compliance by research managers in observing guidelines, Yes
MoUs, and other agreements for collaborations with private
sector and other organizations
28 IP matters coordination with other agencies – ICAR, IP granting Yes
agencies/ offices, legal firms
29 Procedures for protecting infringements against IP owned by the No
institution
30 Capacity building initiatives Yes;
31 No of technologies patented/plant varieties protected Patents: nil;
varieties: 123
32 No. of technologies commercialized 4
33 Institutional earnings from royalties and commercialization Not as yet
*
adapted from Egelying (2005 165 ) and NHRao, 2006 166
Intensifying awareness programs and capacity building in IP including DUS testing
procedures, evolving a system for IP management from project initiation and building better
portfolios need more attention. A transparent information IP management system though
standard inventories and internal audit needs to be in place to hasten the operationalization of
the guidelines. It is gratifying to note that there is trend for commercialization of the
technologies generated and the Directorate has well-earned reputation with its stakeholders
in the transfer of its technologies. Several products especially high value rice seed material
from DRR need to be brand valued to garner more reputation with the stakeholders. The
venturing of licensing with four companies and efforts for registration of varieties is welcome
step and indicate the value being accorded for building up a strong IP portfolio. The high
quality research being done with cutting-edge technologies in DRR necessitates an inventory
of the tools used and the outputs being generated. With the templates for MOUs, agreements
and other documents being in place, the Directorate can use a more professional and
legalised system approach to transfer the research results and technologies and build better
public-private partnerships in research collaborations and technology transfer. Against the
background of defined vision and policy, the Directorate should be able to accelerate its
165
Egelying,H. 2005. Evolution of capacity for institutionalized management of intellectual property at
international agricultural research centers: a strategic case study, AgBioforum, Vol 8, No.1, pp 7-17
166
Rao,N.H. 2006. Intellectual Property Policy: Institutionalizing Intellectual Property Management in
Public Agricultural Research Systems. Paper presented at Assam Agricultural University. March 2006.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 56

efforts to utilize the IP policy too for achieving major economic gains on one hand and
balance its commitment to poor stakeholders of the major crop, the production of which plays
a major role in food security and export earnings to India.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 57

7. Conclusion
“India has always believed in the middle path. It can be traced to the
tendency in our cultural milieu to avoid extremes in any thought
process. Intellectual property rights (IPR) management is no
exception. We have tried to bring parity with international norms as
required under WTO but have introduced specific variations to suit
our conditions” -Anil K Gupta, 2008.
IPRs are part of complex, multi-faceted area involving technical competence in
strategic business planning, management and knowledge of techno-legal subjects. This is
more challenging in sectors like agriculture. Considering the myriad of complexities in Indian
agriculture system and increasingly multi-layered dimensions in the agri-value chain, IP
management is a formidable challenge for all. Adopting a policy through in-house analysis
and re-visiting the mandate, the Indian Council of Agricultural Research (ICAR) has set itself
a road map to leverage the economic benefits of IPs arising out of its research and also
address societal issues for its stakeholders predominantly in the rural sectors.
An attempt to understand the three dimensions namely, laws governing Intellectual
Property in India, the mandate and goals of public sector agricultural research institutions
like Indian Council of Agricultural Research (ICAR) and the policy space afforded in
governance of IP assets was done in this case study. The analysis indicates that for a the
large National Agricultural Research System (NARS) in like the one in India, an effective
policy with appropriate legal spaces would be the key to evolve appropriate and
comprehensive IP management strategies. The case analysis presents the efforts being
made by the huge system to systemize the policy and streamline the guidelines put in
place.
The in-depth study of two constituent institutes under ICAR indicates that
instruments to realize the humanitarian, academic and commercial gains of various
research products and outputs are in place and that the two institutes have initiated their IP
management activities. While these initial efforts set an encouraging tone, capacity building
on managing the IP assets among the scientists to help them address the techno-legal
complexities is urgently needed to be addressed. Since the scientists are part of several
research programmes through collaborations at national and international levels, it is
essential to be continuously updated on the issues relating to Intellectual Property (IP)
management. The study indicates a requirement to create an awareness of intricacies of
these issues among all the multiple partners of the research system. It was also clear that a
more professional IP management would be needed to be set in the institutes in future.
Therefore, while the building the capabilities of manpower in the area of IP management
would be a pre-requisite, it is critical to initiate a working mechanism and inculcate IP
portfolio management as part of research agenda in these days of multi-sectoral and multi-
collaborative approaches at the national and at global levels. An IP Integrated Management
System can perhaps provide solution to systematize all facets of IP management at the
organizational level and be a platform of information for taking long term decisions for
sharing the assets. The attempts being initiated in NARS point towards this approach only
and need to be sustained to leverage higher economic gains with societal benefits in the
agrarian sector in India.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 58

Annexure i
Survey Questionnaires
Survey Sheet for Experts
1. Please describe any role you have played in formulating/implementing/providing
suggestions for IP Rights in India or internationally.
2. How important do you think IPR are in India and internationally and why?
3. What do you think should be included in types of IPs as related to your research
area?
4. What do you see as the possible achievements of IPRs in agriculture in India? Has
there been any change after the laws as per TRIPS have been implemented.
5. What are the main limitations of IP Rights in India? Are they barriers to stakeholders
in your sector?
6. How do you think these limitations/barriers can be overcome?
7. What role do you see for the public sector in implementing IP rights in India? Do you
see any problems if public sector also becomes a major holder of IPRs in agriculture
(in research priorities or distribution of seeds to farmers)?
8. Do you think IP policy is needed for your organization?
9. How do you think that ICAR guidelines for Intellectual Property Management and
technology transfer and commercialization seek to help the researchers and
stakeholders in NARS?
10. Have you come across any achievements (success stories) in establishing IP Rights
in India or any countries? How can any of these measures be translated in India and
internationally to better implementation of ICAR guidelines on IP and technology
commercialization?
11. How can the stakeholders be involved in this process of establishing IP regime both
in India and internationally?
12. What are the suggestions you would like to give to operationalize the IP guidelines of
ICAR?
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 59

Annexure ii
Survey Questionnaires
Survey Sheet for Experts at ICAR Headquarters
1. Please describe any role you have played in formulating/implementing/providing
suggestions for IP Rights in India or internationally.
2. How important do you think IPR are in India and internationally and why?
3. What do you think should be included in types of IPs as related to the mandate of
your organization?
4. What do you see as the possible achievements of IPRs in agriculture in India? Has
there been any change after the laws as per TRIPS have been implemented.
5. What are the main limitations of IP Rights in India? Are they barriers to stakeholders
in your sector?
6. How do you think these limitations/barriers can be overcome?
7. What role do you see for the public sector in implementing IP rights in India?
8. Do you see any problems if public sector also becomes a major holder of IPRs in
agriculture (in research priorities or distribution of seeds to farmers)?
9. Do you think IP policy is needed for your organization?
10. How do you think that ICAR guidelines for Intellectual Property Management and
technology transfer and commercialization seek to help the researchers and
stakeholders in NARS?
11. Have you come across any achievements (success stories) in establishing IP Rights
in India or any countries? How can any of these measures be translated in India and
internationally to better implementation of ICAR guidelines on IP and technology
commercialization?
12. How can the stakeholders be involved in this process of establishing IP regime both
in India and internationally?
13. Can you list the major problems you are encountering during the process of
operationalizing the guidelines of your organization,
14. How do you propose to overcome these?
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 60

Annexure iii
Survey Questionnaires - 2
Survey Sheet for Experts-ITMU members
1. Please describe any role you have played in formulating/implementing/providing
suggestions for IP Rights in India or internationally.
2. How important do you think IPR are in India and internationally and why?
3. What do you think should be included in types of IPs as related to your mandate of
your institute?
4. What do you see as the possible achievements of IPRs in agriculture in India? Has
there been any change after the laws as per TRIPS have been implemented.
5. What are the main limitations of IP Rights in India? Are they barriers to stakeholders
in your sector?
6. How do you think these limitations/barriers can be overcome?
7. What role do you see for the public sector in implementing IP rights in India? Do you
see any problems if public sector also becomes a major holder of IPRs in agriculture
(in research priorities or distribution of seeds to farmers)?
8. Do you think IP policy is needed for your organization?
9. How do you think that ICAR guidelines for Intellectual Property Management and
technology transfer and commercialization seek to help the researchers and
stakeholders in NARS?
10. Please list any operational problems you face during the implementation of these
guidelines in your organization.
11. How can the stakeholders be involved in this process of establishing IP regime both
in India and internationally?
12. What are the suggestions you would like to give to operationalize the IP guidelines of
ICAR?
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 61

Annexure iv
Survey Questionnaire - 3
Survey Sheet for scientists
1. Please describe any role you have played in formulating/implementing/providing
suggestions for IP Rights in India or internationally.
2. How important do you think IPR are in India and internationally and why?
3. Have you been part of awareness programmes on these issues and are you
implementing some of issues on IP generation or practice in your research areas?
4. What do you think should be included in types of IPs as related to your research
area?
5. Please list the projects you are handling with the tenure and your role (as PI or
associate along with its funding source) and indicate possible types of IPs you could
be planning to create in future.
6. What are the main limitations of IP Rights in India? Do you think they could be
barriers to you or your stakeholders in your sector?
7. How do you think these limitations/barriers can be overcome?
8. What role do you see for the public sector in implementing IP rights in India? Do you
see any problems if public sector also becomes a major holder of IPRs in agriculture
(in research priorities or distribution of seeds to farmers)?
9. Do you think IP policy is needed for your organization?
10. How do you think that ICAR guidelines for Intellectual Property Management and
technology transfer and commercialization seek to help the researchers and
stakeholders in NARS?
11. Have you come across any achievements (success stories) in establishing IP Rights
in India or any countries?
12. If yes, how can any of these measures be translated in India and internationally to
better implementation of ICAR guidelines on IP and technology commercialization?
13. How can the stakeholders be involved in this process of establishing IP regime both
in India and internationally?
14. What are the suggestions you would like to give to operationalize the IP guidelines of
ICAR?
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 62

Annexure v
Check list of indicators for IP and technology commercialisation
No Indicator Y or N Remarks (if any)
1 Organizational vision and Y ICAR's Guidelines for IP Portfolio
mission defined Management and Technology
Transfer/Commercialization (hereinafter
referred as ICAR's IPR Guidelines) have
been implemented from Oct 2, 2006.
2 Guiding principles of IP policy Y In ICAR's IPR Guidelines.
listed
3 IP management centres Y In ICAR's IPR Guidelines, which is
constituted supported with 5-year XI Plan budget
sanction.
4 IP management budget Y Through the 5-year XI Plan budget
allocated sanction.
5 IP management general Y In ICAR's IPR Guidelines.
guidelines issued
6 IP management guidelines for Y In ICAR's IPR Guidelines.
specific categories of IP
issued
7 IP management Y Administrative guidelines are included in
administrative guidelines the ICAR's IPR Guidelines, which are
issued supported by a 5-year XI Plan budget
sanction. In addition, ICAR's Rules and
Guidelines on Professional Service
Functions (Training, Consultancy,
Contract Research and Contract Service)
have been updated and aligned with
ICAR's IPR Guidelines. These are,
however, under consideration of a
Committee constituted for the purpose.
8 IP inventory and audit N To an extent, IP inventory and audit in
completed (for IP used in terms of R&D programs and their review
research, including plant is an established practice. However,
genetic resources) to assess management of intellectual assets of all
freedom to operate kinds, beginning with their stock-taking in
the 95 Institutes of ICAR, is the next
exercise through Zonal Technology
Management Centres (ZTMCs). ZTMCs
is the middle tier in ICAR's IPR
Guidelines.
9 Existing databases, software , Y It is in the initial phase. But it will also
websites, multimedia form a part in the exercise referred in
products, CD-ROMs and Column 8.
publications protected by
copyright
10 Copyright provisions clarified Y Provisions clarified in ICAR's IPR
and its management guidelines.
regularized for different
categories
11 Existing plant varieties Y&N Very good progress. But the process is
protected as extant varieties linked with notification of new genera and
species by Govt. of India. It is a
continuing exercise.
12 IP portfolio of existing Y&N We are in the process of streamlining this
commercializable IP available dimension. However, notwithstanding this
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 63

effort, such portfolios are generally
available in each ICAR Institute.
13 IP decision-making flowcharts Y&N In our many sensitization workshops, we
available have felt the need for still more work.
This will be done.
14 IP awareness/capacity Y 12 sensitization programs completed in
building programmes initiated the current year, 2009. Over 570 related
with scientists/ faculty scientists and staff of National
Agricultural Research System, that
includes not just ICAR but also
Agricultural Universities, given exposure
on all the dimensions of 'IPRs and
Technology Transfer'.
15 IP/patent search facilities Y&N In a few institutes. But budget provision
made accessible given and approach clarified and
communicated to each Institute.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 64

Annexure vi
Tabulation of Responses of Scientists to Questionnaire (PDP)
Q.N. Question Synopsis
1 Please describe any role you have Scientists haven’t played any role in
played in formulating/implementing/providing
formulating/implementing/providing suggestions for IP Rights in India or
suggestions for IP Rights in India or internationally.
internationally.
2 How important do you think IPR are in Scientists opined that IPR issue are very
India and internationally and why? important in India and internationally to
protect rights in the novelty of the
researches, protection of technology
developed for commercial exploitation, to
protect rich heritage of India and to
enhance the quality of research as well to
get due recognition for inventions. It is very
important internationally under GATT and
WTO regime.
3 What do you think should be included in Animal or poultry breeds are not included
types of IPs as related to your mandate under IPR, whereas new varieties
of your institute? developed from these breeds may be
included in IPR.
4 What do you see as the possible IPRs have brought a change in Indian
achievements of IPRs in agriculture in agriculture scenario. Recent guidelines and
India? Has there been any change after laws for IP management have been done
the laws as per TRIPS have been because of earlier fighting against patents
implemented for Basmati rice, Neem and Turmeric by
other countries.
5 What are the main limitations of IP Many barriers to stakeholders have been
Rights in India? Are they barriers to reported in this sector. The main limitations
stakeholders in your sector? of IP in India are lack of awareness,
knowledge and training. The present form
of IPRs should be modified as live genetic
materials in the form of lines/strains cannot
be patented. Patenting process should be
made easy and faster.
6 How do you think these Through quick registration of the improved
limitations/barriers can be overcome? lines/strains/varieties and by better
awareness and training programmes,
limitations/ barriers can be overcome.
7 What role do you see for the public There will not be any problem if public
sector in implementing IP rights in sector becomes a major holder of IPR.
India? Do you see any problems if Public sector should take lead role in
public sector also becomes a major implementing IP rights and should become
holder of IPRs in agriculture (in major holder of IPRs in agriculture.
research priorities or distribution of
seeds to farmers)?
8 Do you think IP policy is needed for Yes, IP policy is important for their
your organization? organization but it should be under ICAR
umbrella only.
9 How do you think that ICAR guidelines ICAR guidelines for Intellectual Property
for Intellectual Property Management Management and technology transfer and
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 65

and technology transfer and commercialization is very useful but more
commercialization seek to help the training programmes are needed. ICAR
researchers and stakeholders in NARS? should have a separate extension and
marketing section.
10 Please list any operational problems No operational problems reported in their
you face during the implementation of organization.
these guidelines in your organization.
11 How can the stakeholders be involved Stakeholders can be involved in the
in this process of establishing IP regime process of establishing IP regime both in
both in India and internationally? India and internationally to protect their
rights. They can be provided with institute’s
technical knowhow assistance with
minimum or no investment, as they are
rural / tribal poor.
12 What are the suggestions you would Suggestions to operationalize the IP
like to give to operationalize the IP guidelines of ICAR are better awareness
guidelines of ICAR? and training among scientific community,
higher transparency and fast processing
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 66

Annexure vii
Institute Research Projects 2008-09 (DRR)
Code Project title
Crop Improvement
Breeding rice varieties with resistance to major pest and diseases.
1. GEY/BR-1
(CI/BR/1)
Improvement of quality rices for higher productivity and export
2. GEY/BR-2
(CI/BR/2)
Enhancing nutritional quality of rice through bio-fortification
3. GEY/BR-3
(CI/BR/3)
Genetic enhancement of rice yield potential in irrigated ecosystem by
4. GEY/BR-6
developing New Plant Type
(CI/BR/6)
Breeding varieties for Boro
5. GEY-BR-9
(CI/BR/9)
Breeding rice varieties for saline/alkaline soils
6. GEY/BR7
(CI/BR/7)
Development and evaluation of three line hybrids with better grain
7. GEY/HY-1
quality and resistance to major pests and diseases.
(CI/HY/1)
Deployment of thermo-sensitive genic male sterility (TGMS) system
8. GEY/HY-2
for developing two line hybrids
(CI/HY/2)
Development and improvement of parental lines
9. GEY/HY-4
(CI/HY/4)
Breeding for high yielding rice varieties and hybrids adapted to
10. GEY/HY-5
aerobic (non- flooded irrigated, condition
(CI/HY/5)
Introgression of yield contributing genes/alleles from wild species to
11. GEY/NP-1
rice using molecular markers
(CI/BT/5)
Genetic engineering resistance to biotic stresses
12. GER/BT-2
(CI/BT/2)
Identification of genes for grain filling in rice
13. GEY/BT -3
(CI/BT/6)
Application of biotechnological tools for understanding molecular
14.CI/BT/7
basis of yield heterosis and WA-CMS trait in rice
Development of molecular markers for important quality traits in rice
15.CI/BT/8
Resource conservation technologies to sustain rice system
16.CP/AG/12
productivity
Crop Production
Studies on the effect of organo-inorganic P-sources on rice root
17. NP
system attributes and P-uptake patterns for increase in nutrient-use
CP/AG/9
efficiency and grain yield response of rice genotypes, under abiotic
stress conditions
Evaluation of the system of rice intensification (SRI) for its potential to
18. NP
save water and sustaining rice productivity
CP/AG/10
Management of sulphur nutrition in rice under rice based cropping
19. NP
systems for improving / sustaining productivity
CP/AG/11
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 67

Code Project title
Enhancing productivity of water in irrigated rice through integrated
20. CP/RUE-4
resource and crop management
(CP/SS/6)
Organic farming in Irrigated rice –influence on plant growth,
21. CP/RUE-3
productivity grain quality and soil health.
(CP/SS/7)
22. NP Rhizosphere micriobial community composition and root exudation
patterns as influenced by rice genotypes and soil types
(CP/SS/8)
Role of osmolytes in relation to stress adaptative mechanisms in rice
23. GEY/PHY-1
hybrids
(CP/PP/6)
Increasing the yield potential in irrigated rice : manipulating sources
24. (CP/PP/8)
and sinks
Impact of harvesting and threshing methods on the paddy output and
25. CP/MHY-3
head rice recovery
(CP/ENG/4)
Value addition by pelletizer using broken rice for starch based poultry
26. CP/MHY-4
field
(CP/ENG/5)
Development of information system for rice (RIS)
27. GIS1
GIS based RIS
(CP/GIS/1)
Expert Based Systems
Crop Protection
Host plant resistance (HPR) to insect pests
28. ENT/HPR/-1
(CPT/ENT/1)
Chemical control of rice insect pests as a component of rice IPM
29. ENT-3
(CPT/ENT/3)
Identification and functional analysis of genes related to gall midge
30. HPR/ENT-9
resistance in rice
(CPT/ENT/9)
Insect pest nutrient interactions with reference to plant hoppers
31. ENT-4
(CPT/ENT/10)
Identification of new sources and mechanisms of resistance to rice
32. ENT-5
brown planthopper, Nilaparvata lugens and whitebacked planthopper,
(CPT/ENT/11)
Sogatella furcifera in rice
Host plant resistance to yellow stem borer, (Scripophaga incertulus)
33. ENT-6
Walker in rice
(CPT/ENT/6)
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 68

Annexure ix
Tabulation of Responses of Scientists to Questionnaire (DRR)
Q.N. Question Synopsis
1 Please describe any role you have They haven’t played any role in
played in formulating/implementing/providing
formulating/implementing/providing suggestions for IP Rights in India or
suggestions for IP Rights in India or internationally.
internationally
2 How important do you think IPR are in India is a rich agri-biodiversity centre with
India and internationally and why? lot of land races along with traditional
knowledge that needs to be protected in
this era of globalization and
commercialization. IPR helps in increasing
our competitiveness in the international
market as well. IPR benefit the people
behind a novel product or process that
have commercial importance. If India does
not keep up with the pace of developed
nations in this area we will lose out lot on
our valuable research outputs and also on
our rich Indigenous traditional knowledge.
3 Have you been part of awareness They have participated in many training
programmes on these issues and are programmes organized by NAARM, IARI on
you implementing some of issues on IP IP issue.
generation or practice in your research
areas.
4 What do you think should be included in Germplasm / donors registration specific for
types of IPs as related to your research various biotic stresses, novel microbial pest
area? control formulations, new crop
management techniques for pest control,
pesticide, new products and microbial are
to be included in types of IPs as related to
research area.
5 Please list the projects you are handling
with the tenure and your role (as PI or
associate along with its funding source)
and indicate possible types of IPs you
could be planning to create in future.
6 What are the main limitations of IP The main limitations of IPRs in India are
Rights in India? Do you think they could lack of awareness and knowledge, illiteracy
be barriers to you or your stakeholders among farmers, lack of comprehensive
in your sector? patent database for free patent search,
lengthy patent examination and expensive
legal procedures, confusion among
scientists working in public domain
regarding patenting or making the
technologies and products freely available
to the farmers and other public agencies
and obligations under RTI Act.
7 How do you think these By creating more awareness through
limitations/barriers can be overcome? workshops/ training and also through
distribution of printed material at all levels
including stakeholders and developing clear
policies and guidelines about IPR,
formation of a comprehensive patent
database, simplification of legal
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 69

procedures, In house lawyers to deal with
patent issues
8 What role do you see for the public Public sector should play a pivotal role in
sector in implementing IP rights in implementing IP rights in India. It should
India? Do you see any problems if facilitate the process, help in identifying the
public sector also becomes a major types of IPs and also in documenting them
holder of IPRs in agriculture (in systematically. At present, there is
research priorities or distribution of confusion among scientists working in
seeds to farmers)? public domain regarding patenting or
making the technologies and products
freely available to the farmers and other
public agencies and obligations under RTI
Act. Few felt there will be a problem if
public sector becomes a major holder of
IPRs in agriculture as till now public sector
developed varieties are freely distributed to
farmers and other material was also shared
freely with other organizations. But now,
with IPR regime, one should also keep in
mind the farmers rights and their needs.
9 Do you think IP policy is needed for Yes
your organization?
10 How do you think that ICAR guidelines ICAR guidelines for IPM give an idea of
for Intellectual Property Management types of IPs and also ownership details.
and technology transfer and Guidelines are useful for patent filing and
commercialization seek to help the commercialization of technologies.
researchers and stakeholders in NARS?
11 Have you come across any They have come across many success
achievements (success stories) in stories such as IPR issues of Basmati rice
establishing IP Rights in India or any and turmeric.
countries?
12 If yes, how can any of these measures For better implementation of ICAR guide
be translated in India and internationally lines on IP and technology
to better implementation of ICAR commercialization, the struggle faced by
guidelines on IP and technology pioneers in patent filing in our system could
commercialization? be avoided, and same models can be
adopted to protect our IPR both in India and
abroad
13 How can the stakeholders be involved By regular meetings of stakeholders at all
in this process of establishing IP regime levels – regional, national and international.
both in India and internationally? Creating database of traditional knowledge
and products. Better partnerships between
public sector and private sector
organizations to share resources.
14 What are the suggestions you would Creating more awareness and IPs should
like to give to operationalize the IP be identified at the time of formulation of
guidelines of ICAR? project itself and process should also be
initiated. Creation of committees at
Institutional level and creating active core
groups in each region or institute to monitor
IP are some of the suggestions to
operationalise the IP guidelines of ICAR.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 70

Annexure x
Tabulation of Responses of Scientists to Questionnaire (DRR)
Q.N. Question Synopsis
1 Please describe any role you have They haven’t played any role in
played in formulating/implementing/providing
formulating/implementing/providing suggestions for IP Rights in India or
suggestions for IP Rights in India or internationally.
internationally
2 How important do you think IPR are India is a rich agri-biodiversity centre with lot
in India and internationally and why? of land races along with traditional knowledge
that needs to be protected in this era of
globalization and commercialization. IPR
helps in increasing our competitiveness in the
international market as well. IPR benefit the
people behind a novel product or process
that have commercial importance. If India
does not keep up with the pace of developed
nations in this area we will lose out lot on our
valuable research outputs and also on our
rich Indigenous traditional knowledge.
3 Have you been part of awareness They have participated in many training
programmes on these issues and programmes organized by NAARM, IARI on
are you implementing some of IP issue.
issues on IP generation or practice in
your research areas.
4 What do you think should be Germplasm / donors registration specific for
included in types of IPs as related to various biotic stresses, novel microbial pest
your research area? control formulations, new crop management
techniques for pest control, pesticide, new
products and microbial are to be included in
types of IPs as related to research area.
5 Please list the projects you are
handling with the tenure and your
role (as PI or associate along with its
funding source) and indicate
possible types of IPs you could be
planning to create in future.
6 What are the main limitations of IP The main limitations of IPRs in India are lack
Rights in India? Do you think they of awareness and knowledge, illiteracy
could be barriers to you or your among farmers, lack of comprehensive patent
stakeholders in your sector? database for free patent search, lengthy
patent examination and expensive legal
procedures, confusion among scientists
working in public domain regarding patenting
or making the technologies and products
freely available to the farmers and other
public agencies and obligations under RTI
Act.
7 How do you think these By creating more awareness through
limitations/barriers can be workshops/ training and also through
overcome? distribution of printed material at all levels
including stakeholders and developing clear
policies and guidelines about IPR, formation
of a comprehensive patent database,
simplification of legal procedures, In house
lawyers to deal with patent issues
8 What role do you see for the public Public sector should play a pivotal role in
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 71

sector in implementing IP rights in implementing IP rights in India. It should
India? Do you see any problems if facilitate the process, help in identifying the
public sector also becomes a major types of IPs and also in documenting them
holder of IPRs in agriculture (in systematically. At present, there is confusion
research priorities or distribution of among scientists working in public domain
seeds to farmers)? regarding patenting or making the
technologies and products freely available to
the farmers and other public agencies and
obligations under RTI Act. Few felt there will
be a problem if public sector becomes a
major holder of IPRs in agriculture as till now
public sector developed varieties are freely
distributed to farmers and other material was
also shared freely with other organizations.
But now, with IPR regime, one should also
keep in mind the farmers rights and their
needs.
9 Do you think IP policy is needed for Yes
your organization?
10 How do you think that ICAR ICAR guidelines for IPM give an idea of types
guidelines for Intellectual Property of IPs and also ownership details. Guidelines
Management and technology are useful for patent filing and
transfer and commercialization seek commercialization of technologies.
to help the researchers and
stakeholders in NARS?
11 Have you come across any They have come across many success
achievements (success stories) in stories such as IPR issues of Basmati rice
establishing IP Rights in India or any and turmeric.
countries?
12 If yes, how can any of these For better implementation of ICAR guide lines
measures be translated in India and on IP and technology commercialization, the
internationally to better struggle faced by pioneers in patent filing in
implementation of ICAR guidelines our system could be avoided, and same
on IP and technology models can be adopted to protect our IPR
commercialization? both in India and abroad
13 How can the stakeholders be By regular meetings of stakeholders at all
involved in this process of levels – regional, national and international.
establishing IP regime both in India Creating database of traditional knowledge
and internationally? and products. Better partnerships between
public sector and private sector organizations
to share resources.
14 What are the suggestions you would Creating more awareness and IPs should be
like to give to operationalize the IP identified at the time of formulation of project
guidelines of ICAR? itself and process should also be initiated.
Creation of committees at Institutional level
and creating active core groups in each
region or institute to monitor IP are some of
the suggestions to operationalise the IP
guidelines of ICAR.
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 72

Acknowledgments
Grateful thanks to following people without whose help this study would not
have possible:
(a) Central Advisory Services on Intellectual Property (CAS-IP) of the Consultative Group on
International Agricultural Research (CGIAR) for funding the study.
(b) Director-General, ICAR for permitting the study.
(c) Dr S.M.Ilyas, Director, NAARM, Dr N.H.Rao Joint Director and PI, LCB Project, NAIP,
NAARM and Dr T.Balaguru, for advice right from the start, providing inspirational support
and giving valuable technical advice all through the project.
(d) Consultancy Proposal Committee (CPC) at NAARM for processing the project proposal.
(e) Dr Victoria Henson-Apollonio (CAS-IP-Italy), Ms Karine Malgrand (NPI-France), for
encouragement and editing.
(f) Ms Irina Curca, Ms Kay Chapman and Mr Shawn Landers (CAS-IP-Italy for
administrational support from CAS-IP.
(g) Other National Partners Initiative members for encouragement and useful comments
during the NPI meeting in Mombasa Kenya; January 2009.
(h) IP Section at ICAR Headquarters, in particular, Dr S.Mauria, ADG (IPR) and Dr
S.Kochhar, (Principal Scientist,[PB/IPR] ICAR) for help in the data collection and giving
me the opportunities to interact at numerous workshops of ICAR on IPR during May 2008
to December 2008.
(i) Dr B.C.Viraktamath, Project Director, DRR, Dr .Ms. N Shobha Rani, Principal Scientist &
Head, Crop Improvement Section, DRR, Members of ITMU/ITMC and scientists at DRR
for all their help and support for data.
(j) Dr R.P.Sharma, Project Director, PDP; Dr M.N.Reddy, Senior Scientist, PDP; Members of
ITMC/ITMC, PDP and scientists at PDP at PDP for ready help and support for data
collection activities.
(k) All the respondents representing various sectors of stakeholders for help in data
collection.
(l) Mr Suresh Kumar, CAO and his team in Administration and Accounts at NAARM; IC
division of DARE, ICAR for support for project administration and processing the
proposal.
(m) Mr T.V.Ramadas, Ms H.Rashmi and Mr M.Hussian for their help during report preparation
and proof reading.
+++
Intellectual Property Management Regime in the
Indian National Agricultural Research Systems 73

Establishment of Plant Breeders’ Rights System
In Tanzania: Achievements and Challenges
A Case Study
Under the Ministry of Agriculture Food Security and Cooperatives,
Tanzania -CAS-IP NPI Collaboration Project
Patrick Ngwediagi
Registrar of Plant Breeders’ Rights
Ministry of Agriculture Food Security and Cooperatives
Email: patrick.ngwediagi@kilimo.go.tz
Ministry of Agriculture Food Security and Cooperatives
P.O. Box 9192 DAR ES SALAAM,TANZANIA
Tel: +255 22 286420 Fax: +255 22 2861403
Email: psk@kilimo.go.tz Website: http: //www.kilimo.go.tz

Contents
Acronyms 2
1 Background and Justification for the Study 3
2 Materials and Methods 3
3 Meaning and Importance of Intellectual Property Rights 3
4 Plant Breeders' Rights, Farmers' Rights and Community 5
Rights
Plant Breeders' Rights
Farmers' Rights
Community Rights
5 International Obligations for Tanzania 7
OAU Model Law
TRIPS Agreements
Convention on Biological Diversity (CBD)
International Treaty on Plant Genetic Resources for Food and
Agriculture (IT-PGRFA)
UPOV Model and its Members
6 Establishment and Operationalization of Plant Breeders' 10
Rights System
Need for a Plant Breeders' Rights System
PBR Legislation
Institutional Framework
Plant Breeders Rights Development Fund
Achievements and Challenges
Participation of Stakeholders in the Administration of PBR Act
Regional and International Collaboration
7 Lessons Learnt and Recommendations 20
8 References 21
22
Acknowledgements
Establishment of Plant Breeders’ Rights System 1
In Tanzania: Achievements and Challenges

Acronyms
ASARECA Association for Strengthening Agricultural Research in Eastern and
Central Africa
AU African Union
AVRDC Asian Vegetable Research and Development Centre
CAS-IP Central Advisory Services on Intellectual Property
CBD Convention on Biological Diversity
DUS Distinctness, Uniformity and Stability
FAO Food and Agriculture Organization
IPRs Intellectual Property Rights
ISF International Seed Federation
IT-PGRFA International Treaty on Plant Genetic Resources for Food and
Agriculture
MAFC Ministry of Agriculture Food Security and Cooperatives
NPI National Partners Initiative
OAU Organization of African Unity
PBR Plant Breeders’ Rights/ Plant Breeder’s Right
PBRA Plant Breeders’ Rights Act
PBRO Plant Breeders’ Rights Office
PVP Plant Variety Protection
QDS Quality Declared Seed
TRIPS Trade-Related Intellectual Property Rights
UPOV International Union for the Protection of New Varieties of Plants
WIPO World Intellectual Property Organization
WTO World Trade Organization
Establishment of Plant Breeders’ Rights System 2
In Tanzania: Achievements and Challenges

1. Background and Justification for the Study
The Government of Tanzania has established a legal system for protection of plant
breeders’ rights in order to put in place a mechanism for rewarding plant breeders and for the
purpose of promoting plant breeding activities to stimulate and promote agricultural
development. The system was put in place through enactment of the Plant Breeders’ Rights
Act in 2002 which officially became operational in 2004 and based on the experiences and
the outcome of implementing the system, there has been calls from stakeholders for the
government to review the law governing the granting of plant breeders’ rights to make it more
compliant to international systems of variety protection for the purpose of increasing local and
foreign investment in plant breeding. In agreement with CAS-IP of Bioversity International, the
Ministry of Agriculture Food Security and Cooperatives of Tanzania carried out a case study
in 2008 in order to appraise the system and document experiences gained, lessons lent and
challenges in the process of establishing and managing the Plant Breeders’ Rights Office in
the country and make recommendations for improvement. The recommendations will also
save as advice to other NPI member countries that are practicing or are in the process of
putting in place similar system of plant variety protection.
This study seeks to review appropriateness of the current plant breeders’ rights
system in Tanzania and its contribution to an effective sui generis (“of its own kind”) system,
and attempts to formulate an appropriate model in line with the TRIPS Agreement. The study
prepares a benchmark review of activities undertaken in Tanzania thus far towards the
creation and operationalization of a sui generis system (covering developments in legislation,
institutions, as well as studies and analysis carried out by the government, private sector and
other stakeholders). The study will also assess Tanzania’s compliance with the Agreement on
Trade-Related Intellectual Property and other international legal frameworks for the protection
of plant variety. The findings will facilitate an identification of the areas (legislative, analytical
and institutional) where follow up for reform is required. The study will also examine how
farmer s’ rights are handled.
2. Materials and Methods
The study has reviewed and documented the whole process from what necessitated
a decision on establishment of a plant variety protection system to development and
implementation of the law, activities involved in the process of establishing the office and
operationalization of the office including availability of necessary resources.
In order to achieve the objectives of the case study, all existing literatures and
documents on the establishment and operationalization of the plant breeders’ rights system in
Tanzania were collected and reviewed. Opinions from major stakeholders of the system who
included officials of the Ministry of Agriculture Food Security and Cooperatives and Plant
Breeders’ Rights Office, plant breeders in the field, seed producers, academicians and
farmers/farmer groups were collected though individual interviews or though discussions in
workshops and meetings. During the process the stakeholders’ views regarding the efficiency
of the system and suggestions for improvement were sought. The stakeholders meetings
were also used to establish the level of their awareness on the importance and benefits of the
plant variety protection system so that means of raising their awareness could be
recommended.
3 The Concept and Importance of Intellectual Property Rights
(IPRs)
Intellectual property can be defined as that which is created by the human intellect
(“ideas” or “thoughts”), often intangible unlike other forms of property. When the ideas or
thoughts are converted to practice (for example, in appliances, drugs, books, new plant
varieties etc), and the reduced-to-practice ideas are new (novel), they can be protected by
government laws. These laws confer to the creator exclusive legal rights over the subject
Establishment of Plant Breeders’ Rights System 3
In Tanzania: Achievements and Challenges

matter, which serve as a reward for their achievement and contribution to socio-economic
progress as well as an incentive for further innovation.
Types of intellectual property rights include:
Industrial property: (patents, trade marks, special rights for integrated circuits, utility
models, industrial designs, etc); and
Literary and artistic property: (copyright, rights of performers, et. cetera).
Plant variety protection (PBR): a sui generis system often excluded from lists
of intellectual property categories
3.1 The Importance of IPRs to the Agricultural Sector
In Tanzania, over 80 per cent of the population lives in rural areas and depends on
agriculture for their livelihood. This sector contributes about 26.5 percent to the GDP and
comprises 54 percent of the nation’s foreign exchange earnings 1 . Agricultural development is
therefore crucial to both national economic development and poverty reduction, but
specifically, it stimulates local rural economies and may curb rural to urban migration. Strong
Intellectual Property Rights’ (IPRs) play a significant role in attracting investment in
agriculture, and enhance market growth, access and diversification as they provide incentive
to breeders by assuring them that their expenditure and development will be protected.
Adequate plant variety protection encourages investment in the plant breeding sector and
opens a country’s door to overseas varieties where the protection of law is guaranteed. More
often than not, new plant varieties render higher yield and quality product, as well as a greater
resistance to disease rendering them a crucial aspect of production. Through these varieties
the benefits of plant variety protection therefore extend to farmers, producers and to the
national economy.
It is envisaged that Trade Marks, Patents and Plant Variety Protection will have some
impact on the pace and direction of growth of the sector. Simply put, trademarks have an
important role to play in the identification of agro-products, such as seeds, of a particular
enterprise. They can also convey to customers an indication of the quality of the product.
Patents and plant variety protection systems are likely to have greater influence on access to
technology issues, such as seed of improved varieties. These latter two forms of protection
share some commonalities:
They create incentives for investment in the research and development of new plant
varieties. Holders have the opportunity to exploit their inventions and therefore recoup
their investment costs free from the competition of those who have not made such
investments and who would, in the absence of patent or plant variety protection,
benefit unfairly;
The rights are territorially limited and therefore apply only within the state, or the
group of states, in which they are granted; and
They represent a balance between the public interest and the private interest of the
holder.
Despite these similarities between patents and plant variety protection laws, there are
some principle differences between them. These are summarized in Table 1 below.
1
MAFC Budget Speech made to the National Parliament in July 2008
Establishment of Plant Breeders’ Rights System 4
In Tanzania: Achievements and Challenges

Table 1. A General Comparison of Patent And Plant Variety Protection Law
Subject Patent Protection Plant Variety Protection
Inventor Plant Breeder
Holder of Protection
Requires involvement of patent User friendly; breeder can
Ease of making
specialists/lawyers make the application.
application
(Industrial) invention Plant Variety
Object of protection
Required Required
Documentary
examination
Not required Required
Field examination
Not required Required
Plant material for
testing
a) Novelty a) Novelty
Conditions for grant
b) Industrial applicability b) Distinctness
of rights
c) Non-obviousness (inventive c) Uniformity
step) d) Stability
d) Enabling disclosure e) Appropriate denomination
Determined by the claims of the Fixed by the national
Determination of
patent legislation (by UPOV
scope of protection
Convention in the case of
UPOV member States)
May require the authorization of Does not require authorization
Use of a protected
the patentee. of the right holder.
variety for breeding
further varieties
20 years from date of 25 yrs for trees and vines, 20
Term of protection
application (as per TRIPS yrs for other plants, from date
Agreement) of grant (1991 Convention)
Source: Wachira F. & Ngwediagi. A review of PVP Laws in Eastern African countries of
Kenya, Uganda, Tanzania and Rwanda, submitted to ASARECA in 2006
Patents are granted for inventions (there must be evidence of an inventive step); the
patenting of plants has always carried misconceptions and ambiguities. In Tanzania Patent
Act, 1987 does not allow the patenting of life forms (section 7) 2 . The same prohibition exists
under the European Patent Convention. Therefore, plant breeders in Tanzania can only
protect their new plant varieties through the plant variety protection legislation.
4. Plant Breeders’ Rights, Farmers Rights and Community
Rights
4.1 Plant Breeders Rights
Plant Breeders’ Rights (PBRs) are defined by UPOV 3 as an exclusive right over the
commercial production and marketing of the reproductive or vegetative propagating material
of the protected variety. The creation of this category of rights as an alternative to patents was
intended to provide incentives for the seed industry. Therefore the primary motivation behind
such rights is profit-making; these rights attract investment from the private sector and
stimulate research and development of stronger and more productive plant varieties.
The development of a new variety is usually a long and costly undertaking and
therefore by allowing breeders to control commercialization of their variety, by enacting and
implementing a plant breeders' rights legislation gives them a chance to recoup costs and
profit from their breeding investment. This also motivates breeders to continue developing
new varieties for the benefit of farmers and the society in general.
4.2 Farmers’ Rights
2
Tanzania Patent Act of 1987
3
UPOV Convention of 1991
Establishment of Plant Breeders’ Rights System 5
In Tanzania: Achievements and Challenges

In developing countries, seed supply requirements are met through exchanges
between farmers, which operate alongside other more formal mechanisms. Farmers’ seed
systems are largely based on traditional methods of selection between varieties as well as
seed multiplication carried out on farms, but still involve modern varieties. Nevertheless there
is no uniform interpretation of farmers’ rights in relation to IPRs on plant varieties. Farmers’
rights protection carries with it benefits such as the improvement of the livelihood of those
farmers and their communities; environment conservation and the monitoring of resources;
the prevention of rural migration; less dependence on foreign countries and the prevention of
biopiracy by recognizing the contribution of local farmers.
The major difference between farmers’ rights and IPRs is that while the latter offers
exclusive rights, the former is geared towards compensation and benefit sharing. Also,
farmers’ rights do not readily define the title holder or subject matter, while they are clearly
established for IPRs. Finally, IPRs are also of a limited duration while farmers’ rights are
unlimited
Farmer’s rights are a counter-balance to PBRs in recognition of the farmer’s
contribution to agricultural innovations, to promote the equitable sharing of genetic resources
and in recognition of the importance of the conservation of such resources and traditional
practices. The legal scope of these rights is still in debate. A whole spectrum of views has
been put forward regarding the utility and place of farmers’ rights protection in the law. Some
of these views include: There should be no relationship between farmers’ rights and IPRs;
Farmers rights should be recognized in laws relating to plant breeders’ rights; A sui generis
regime on farmers’ rights should be established separately from existing forms of IPRs and
The existing definitions under plant breeders’ rights legislation should be extended to protect
farmers varieties.
Part V of the Model Law developed by the African Union outlines farmers’ rights
which include the right to save, use, and exchange seed produced on farms, and to use
protected varieties in the development of new farmer’s varieties.
The importance of having a clear understanding of what should be regarded as
farmers’ rights and their place in legal systems is less pronounced in developed countries but
is relevant in the developing country context. Here, farmers are a primary source of seed
supply through informal exchange arrangements. For example in Tanzania, 95 percent of
seed management is carried out by farmers and the remaining 10 percent supplied by
certified seeds sold on the market (these are generally much more expensive and are not
4
easily available to many farmers in remote areas) . The Plant Breeders Rights Act of 2002
recognizes this situation and therefore provides that farmers are privileges to save seeds of a
protected variety as long as it is grown in their own holdings (farms). The Act also does not
discriminate farmers in the definition of a breeder, meaning that a farmer can also develop
and protect a new variety. However, the Act does not provide other forms of rights specifically
for farmers but the government has initiated a process of enacting a law on access and use of
plant genetic resources where all matters related to farmers rights will be captured.
In order to solve the problem of seed availability and affordability to small scale
farmers, the Tanzanian government has initiated an on-farm seed production system known
as Quality Declared Seed (QDS) System 5 . The QDS system allows small scale farmers
(growing not more than 5 acres of seed) to produce seed on their own farms and declared the
quality of their own seed and sell to nearby farmers within an administrative area known as a
ward. The national seed certification agency may once in a while inspect these farmers but
their involvement does not exceed 10 percent. The system has been operational since the
year 2000 and has now been legalized by the new Seed Act of 2003 6 .
4.3 Community Rights
The sovereign rights of the state over its natural resources forms the basis of its
negotiating position on the international plane and the right to develop policies appropriate for
its national context. Community rights are those belonging to members of an identifiable
4
MAFC Report to the National Variety Release Committee, December 2008
5
QDS Programme Launch Report, 2002
6
Tanzania Seed Act of 2003
Establishment of Plant Breeders’ Rights System 6
In Tanzania: Achievements and Challenges

indigenous community, with each member entitled to use of the common property and any
management issue pertaining to the property must have the consent of the entire community.
A delineation of these rights is often difficult given that property rights are individualistic in
nature, but this should not negate recognition of community rights which recognize their
conservation role, to provide incentives and also to fulfill their human rights entitlements.
Currently there is no specific law for the protection of community rights in Tanzania, and
based on the current administrative structure in the country such law may be difficult to
implement. As a way of strengthening national unity and cohesion, immediately after
independence, Tanzania abolished village chiefdoms which existed along tribal boundaries
and established new village boundaries and leadership that had little to do with tribal
affiliations. It might therefore be difficult to distribute any benefits arising from the use of plant
genetic resources which were obtained from areas originally belonging to a certain indigenous
community.
5. International Obligations for Tanzania
5.1 OAU Model Law
A Model Law which outlines its sui generis system has been developed by the AU,
formally, OAU. The law deals with access to biological resources, benefit sharing and the
rights of farmers and breeders over their knowledge and resources. It rejects the exclusive
appropriation of any life form, including derivatives. Communities can prohibit access to
resources only where it would be detrimental to their natural heritage; also, at least half of the
benefits derived from access must be directed back to the community. This framework
provides a comprehensive definition of farmers’ rights, including protection of their traditional
knowledge relevant to plant and animal genetic resources, the right of equitable share of
benefits arising from the use of plant and animal genetic resources, the right to participate in
making decisions on matters related to the conservation, exchange, and sale of farm-saved
seed or propagating material, and the right to use a commercial breeder’s variety to develop
other varieties. It also provides that where food security or nutritional or health needs are
adversely affected, governments are allowed, in the public interest, to restrict the realization
of the rights of breeders. Breeders’ rights are modeled after the UPOV Conventions, although
article 43 of the Model Law provides broad exemptions to breeders’ rights including non-
commercial use rights, sale of the plant material for food or sale within the specific
geographical location where the plant material originated, and also use as an initial source for
7
propagating another variety .
Although the Organization unanimously approved the Model Law, very few members
have enacted their PBR laws using the model law. This has brought the discussions on the
need to revise the model law to meet the present needs of its member states.
5.2 TRIPS Agreement
The World Trade Organization’s Trade-Related Intellectual Property Agreement 8
obliges its signatories to provide for such intellectual property protection in their laws, and
sets out the minimum standards that must be contained therein. Plant variety protection is
often excluded from lists of intellectual property categories. However, the adoption of the
TRIPS Agreement has done more to encourage the legal protection of plant varieties than
any other international agreement. As the Plant Variety Protection (PVP) debate has
continued, a school of thought has evolved that considers it a form of industrial property right.
The TRIPS Agreement does not require that a specific system be put into place to
secure intellectual property rights for plant varieties. The Agreement mandates its signatories
to provide patent protection for any invention in all fields of technology, provided that the
inventions are “new, involve an inventive step and are capable of industrial application”. Such
protection for plant varieties is covered by Article 27.3 (b) of the Agreement which partly
states the protection is to be provided “...either by patents, or by an effective sui generis
system or by any combination thereof”. This means that the range of options is unlimited,
provided some requirements are met. This also means that WTO member states, including
7
http://www.grain.org/brl_files/oau-model-law-en.pdf
8
http://www.wto.org/english/tratop_E/TRIPS_e/trips_e.htm
Establishment of Plant Breeders’ Rights System 7
In Tanzania: Achievements and Challenges

Tanzania are allowed to develop legislation that takes into account its unique features.
Furthermore Article 27.3 (b) of the Agreement states that members may exclude from
patentability “plants and animals other than micro-organisms, and essentially biological
processes for the production of plants or animals other than non-biological processes. Thus,
as presently written, the TRIPS Agreement would permit WTO members to decline to protect
plant varieties using the patent method provided they protect such varieties with an effective
sui generis plant variety protection system. There is no guidance or agreed formulation as to
what constitutes ‘effective’, nor what a sui generis system should entail at minimum. The
International Seed Federation (ISF) recommends that countries envisaging the development
of such sui generis systems ensure that as a minimum they conform to the requirements of
the 1991 Act of the UPOV Convention,
Least Developing Countries (LDCs) such as Tanzania were given an extension until 1
July 2013 to set up the appropriate protection framework under the TRIPS Agreement.
The TRIPS Agreement provides for a review of Article 27.3(b), which began in 1999.
Among the topics discussed in the TRIPS Council are:
How to apply the existing TRIPS provisions on whether or not to patent plants and
animals, and whether they need to be modified.
The meaning of effective protection for new plant varieties
How to handle moral and ethical issues, for example, to what extent invented life
forms should be eligible for protection.
How to deal with the commercial use of traditional knowledge and genetic material by
those other than the communities or countries where these originate, especially when
these are the subject of patent applications.
How to ensure that the TRIPS Agreement and the UN Convention on Biological
Diversity (CBD) support each other.
Most recently discussed are proposals on disclosing the source of biological material
and associated traditional knowledge. The African group at WIPO has made a specific
proposal on disclosure in patent applications of information on the origin of genetic resources
and traditional knowledge on which invention is based.
5.3 Convention on Biological Diversity (CBD)
The CBD 9 is the most recent and comprehensive instrument that balances the need
for legal protection of intellectual property rights with that of the specific context of developing
countries sustainable development agendas. The CBD preamble and its Article 8 recognize
both the dependence of local communities on biological resources and the role that they have
played in the evolution, conservation, and sustainability of such resources. The Convention
calls for the equitable sharing of benefits arising from the use of their traditional knowledge,
innovations and practices, relevant to the conservation of biodiversity and the sustainable use
of its components. The CBD is not limited to plants but to all biological resources. The
directives contained in the Convention have been included as an important element of the
current TRIPS negotiations. Tanzania became a member of the CBD on 8th March 1996 and
is therefore bound and affected by its impact on trade negotiations and potential future WTO
amendments. The Convention offers an important setting for information sharing but also
resources for technical assistance that Tanzania has been in the process of exploration since
it became a member. Tanzania is also a member of the Cartagena protocol on Biosafety
since September 2003.
5.4 International Treaty on Plant Genetic Resources for Food and
Agriculture (IT-PGRFA)
The International Undertaking on Plant Genetic Resources for Food and Agriculture 10 is
a non-binding instrument which furthers the tenet that plant genetic resources are the
common heritage of mankind. The treaty protects the material in gene banks and in farmers’
fields from being directly patented and encourages countries to protect farmer’s rights.
Negotiations for a revision of some of the articles pertaining to farmer’s rights have caused
some controversy as the draft provisions emphasize acknowledgment of the role of farmer’s
9
http://www.cbd.int/convention/
10
http://www.planttreaty.org/
Establishment of Plant Breeders’ Rights System 8
In Tanzania: Achievements and Challenges

to agricultural management rather than their rights. The treaty focuses on aspects such as
the protection of traditional knowledge and the equitable sharing of benefits arising from the
exploitation of biological resources, proposing a multilateral system that facilitates access to
genetic resources and sharing of benefits without any monopolies. The Treaty steers
countries towards the recognition of the need to give farmers control over their knowledge for
reasons of justice as well as to foster sustainable use and conservation of plant genetic
resources. Nonetheless, it leaves member states free to decide on the most appropriate
framework for them.
Under Article 27, the Treaty is open for accession by all Members of FAO and any States that
are not Members of FAO but are Members of the United Nations, or any of its specialized
agencies or of the International Atomic Energy Agency. The Treaty entered into force the 29
th
June 2004. Tanzania is a member of the treaty of which it acceded on 30 April, 2004 and
has now initiated a process of enacting a law to domesticate it.
5.5 The UPOV Model and its Membership
The International Union for the Protection of New Varieties of Plants 11 , known as
“UPOV,” is an intergovernmental organization with headquarters in Geneva. The acronym
UPOV is derived from the French name of the organization, Union Internationale pour la
Protection des Obtentions Végétales.
The mission of UPOV is to provide and promote an effective system of plant variety
protection, with the aim of encouraging the development of new varieties of plants, for
the benefit of the society.
The purpose of the UPOV Convention is to ensure that the members of the Union
acknowledge the achievements of breeders of new varieties of plants, by granting to them an
intellectual property right, on the basis of a set of clearly defined principles. To be eligible for
protection, varieties have to be (i) distinct from existing, commonly known varieties, (ii)
sufficiently uniform, (iii) stable and (iv) new in the sense that they must not have been
commercialized prior to certain dates established by reference to the date of the application
for protection.
The UPOV Convention sets out a minimum scope of protection and offers members
the possibility of taking national or regional circumstances into account in their legislation.
Like all intellectual property rights, plant breeders’ rights are granted for a limited period of
time, which is twenty five years for trees and vine and twenty years for other plants
respectively, at the end of which varieties protected by them pass into the public domain. The
rights are also subject to controls, in the public interest, against any possible abuse.
Under the 1991 UPOV Convention, a breeder is defined as the person who breeds,
or discovers and develops, a variety. Therefore, protection is not limited to a breeder in the
sense of someone who produces a variety as a result of crossing parent plants and selecting
from the progeny. The term breeder also includes a person who discovers a mutation or a
chance seedling and then by a process of selective propagation (development) converts that
discovery into a cultivated variety. Discovery by itself is therefore not sufficient and the
breeder must also have had an input of development.
Many countries that have joined UPOV have reported increases in plant breeding
activities with direct effects upon their agricultural and horticultural industries. They have
reported increases in the range of varieties made available to farmers and growers as well as
increased investments in agriculture. In Argentina for example, the number of PVP grants to
foreign breeders, increased following the amendment of the national PVP law to comply with
UPOV. The number of granted titles more than trebled in 10 years since the country became
a UPOV member, that is, from 17 to 62 (355 percent). The increase in number of foreign titles
was more evident in important agricultural crops (such as soybean, roses, strawberry and
Lucerne), for which improved varieties are important for competitiveness in the global market.
In China, farmers have greatly benefited from the introduction of a PVP system and in
11
http://www.upov.int/index_en.html
Establishment of Plant Breeders’ Rights System 9
In Tanzania: Achievements and Challenges

particular with UPOV membership. They have seen the development of a number of new
varieties of the most important agricultural crops such as maize, rice, wheat, soybean and
oilseed rape. The number of PVP grants in China increased from 39 to 261, one year after
joining UPOV. These examples demonstrate that with suitable PVP laws, returns from
breeding activities can be potentially reinvested in crop improvement activities. This could
contribute to the development and release of many more new varieties, particularly in Africa
where most of the breeding activities are inadequately funded from public coffers. The UPOV
plant variety protection system provides breeders with an incentive to properly maintain their
varieties and ensure that authentic propagating material is available to users (including others
breeders) to breed further varieties, thus serving as a genetic resource.
Currently UPOV has 66 members and more than 18 applications for membership are
being processed. In Africa there are four members (South Africa, Kenya, Morocco and
Tunisia). Zimbabwe application is under consideration as well as collective application of 16
West African states under OAPI.
6. Establishment of and Operationalization of Plant Breeders’
Rights System
6.1 Need for a Plant Breeders’ Rights system
The seed industry in Tanzania needs the active participation of private sector. The
role of the private sector in agricultural development has been recognized in several
government documents such as the Poverty Reduction Strategy (RSP) 12 , the Vision 2025 13 ,
and in particular, the Agricultural Development Policy of 1997 14 and the Agricultural Sector
Development Strategy (ASDS) of 2001 15 .
A well-functioning seed industry requires a suitable legal and institutional framework
that could serve as a catalyst to seed trade under a free market economy,
The objective or main purpose of the Tanzanian Plant Breeders’ Rights Act, as
provided in its long title, is “to provide for the protection of new plant varieties in order to
promote plant breeding activities that will stimulate, facilitate and improve agricultural
research in the country, through the grant and regulations of plant breeder’s rights and the
establishment of a plant breeder’s rights registry, which is entrusted with the obligations of
granting plant breeders rights”.
The government decided to put in place a plant variety protection framework after
conducting a study to establish whether or not it was necessary. The study was conducted in
1995/96 with technical assistance from the United Nations’ Food and Agriculture Organization
16
(FAO). The study produced a number of recommendations after the FAO consultants had
met and discussed with all stakeholders including government officials from relevant
ministries, public and university plant breeders, seed companies and other stakeholders that it
was right time for the country to introduce a legal framework to regulate granting of plant
breeders’ rights. The study also recommended that the legal framework should establishment
an independent PBR Office that will be based at the ministry responsible for agriculture. Most
stakeholders had supported the idea of establishment of a plant variety protection system in
Tanzania because they believed that it would contribute to increase in number of improved
varieties as well as investment in agriculture sector in general.
Following the revelation of the findings of the study, the government took sufficient
time to discuss and finally accepted the recommendations and started the process of
establishing the legal system for the protection of plant breeders’ rights. The process involved
holding discussions with stakeholders on the formulation of a draft law before a bill was
submitted to the National Assembly (Parliament) for final decision. The government and
12
Tanzania Poverty Reduction Strategy of 2001
13
Tanzania Development Vision 2025 of 2000
14
Agricultural Development Policy of 1997
15
Agricultural Sector Development Strategy (ASDS) of 2001
16
FAO 1996. Study on the need for a plant variety protection system in Tanzania
Establishment of Plant Breeders’ Rights System 10
In Tanzania: Achievements and Challenges

stakeholders had expected that the system would confer the following advantages to
Tanzania:
To assist in providing sustainable compensation for long years of involvement in
developing and testing new varieties;
To provide an incentive to local (public and private) and international breeders to
involve themselves fully in plant breeding in the country, therefore providing farmers
with high quality varieties;
To provide incentives for increased investments in seed production, horticulture and
agriculture in general;
To facilitate technology generation and transfer through shared breeding and licensing;
It is important to note that before and after the Bill was submitted to the Parliament, no
stakeholder including the non-governmental organizations had objected to the idea of
introducing the plant variety protection system. To some extent this may have been attributed
to the lack of sufficient knowledge on the impact of the system and lack of a proven example
of any negative impact in African countries practicing the system.
6.2 PBR Legislation
6.2.1 PBR Act
The Protection of New Plant Varieties (Plant Breeders’ Rights) Act No. 22 of 2002 17 is
an Act to provide for the establishment of a registry of plant breeders’ rights; promotion of
plant breeding and facilitation of agricultural advancements through the grant and regulation
of plant breeders’ rights and for matters connected herewith. The Act was passed in the
National Assembly on 7th November 2002 and the Minister responsible for agriculture
declared 1st February 2004 as the official operational date of the Act.
The Plant Breeders’ Rights Act of 2002 is a sui generis piece of legislation that
provides for a voluntary system intended to enhance plant breeding activity in the public and
private sectors. The Act adopts, to a large extent, major provisions of the UPOV Convention
of 1991 although some differences are notable. As provided under UPOV Act, Section 14 of
the Tanzanian PBRA requires that some specific conditions be met before a variety can be
protected. Such variety must be:
New;
Distinct(clearly distinguishable from any other variety of common knowledge at the
time of the application) ;
Uniform; and
Stable (unchanged after repeated propagation).
The novelty condition (newness) is given in relation to commercialization of a
particular variety in which the Act authorizes an allowance period for sale before application,
that is, one year in the country of application, or, in any other country, six years for trees or
vines, or four years for other plants.
The applicant must also meet some administrative requirements such as filling in
application forms and payment of prescribed fees. In addition the variety must have a suitable
name (denomination) which must be used in the market place to avoid confusion and
misidentification of varieties. The law does not allow for inclusion of any additional conditions
for granting of PBR rights.
The Plant Breeders’ Rights Act provides that the breeder of a protected variety shall
have sole rights to:
Sell
Reproduce or multiply the propagating materials,
Process
Stock the variety
Export and
Collect royalties through licensing and assignment of his or her rights
17
http://www.agriculture.go.tz/Regulations.htm
Establishment of Plant Breeders’ Rights System 11
In Tanzania: Achievements and Challenges

The PBR Act of 2002 gives exemption to the breeder’s right. As provided under
UPOV 1991 Act, the PBR Act provides that the breeders’ rights do not cover private and non-
commercial acts, experimental acts or those carried out for the purpose of breeding other
varieties. Section 34 of the privileges farmers to save seeds of a protected variety harvested
in their own holdings but unlike provisions of UPOV Convention of 1991, it does not require
the authorities to put limit for farmers to as to how much should be saved on their own
holdings.
Under Section 35 of the statute, protection lasts 25 years for trees and vines, and 20
years for other crops. The rights holder can request to the Registrar for an extension upon
expiry of the coverage period. The Act also details the procedures for objections to a grant of
PBRs following publication of the notice for the filed application in the Official Gazette. In
addition to fees paid at the application, the right holder is required pay a prescribed fees in
order to maintain the right. The act allows applicants to appeal any decision of the Registrar
before the Appeals Board
The PBR Act does not clearly deal with the farmers and community rights save for
section 57, which states simply that the Minister shall ensure that implementation of this Act
shall not affect the fulfillment of government obligations pertaining to protection of farmers’
rights. The Act also establishes a Community Fund whereby part of the revenue paid to the
Registry of Plant Breeders’ Rights is set aside for development activities of the arrears that
contributed to the development of the protected varieties. The PBR Act privileges farmers to
save seeds of a protected variety as long as it is used in their own holdings. The law protects
public interests through provisions regulating compulsory licensing of a protected variety in
case a right holder refuses to license it.
6.2.2 PBR Regulations
Section 59 of the PBR Act empowers the Minister responsible for Agriculture to make
regulations for effective implementation of the Act the task he accomplished in 2008 after
following laid down procedures for this purpose. Although the regulations became operational
five years after the Act came to force, the office of the Registrar was allowed to continue
implementing the Act while the Regulations were being drafted.
6.3 Institutional framework
Section 5 of the PBR Act establishes an independent plant variety protection office
within the ministry responsible for agriculture known as the Plant Breeders’ Rights Registry
which is responsible for administration of plant variety protection system. The independence
of the arrangement is designed to provide a neutral and efficient body within the government
structure to administrate PVP issues. The office falls under the Ministry of Agriculture Food
Security and Cooperatives due to the fact that the Ministry is more placed to deal with plant
variety matters than any other government Ministry. Section 4 of the Plant Breeders Rights
empowers the Minister to appoint the Registrar who heads the Plant Breeders’ Rights Office.
The main functions of the Registrar include:
Granting of plant breeders rights
Maintaining a register of plant breeders’ rights
Maintaining a documentation centre for public scrutiny and access on plant breeders’
rights information
Facilitation of transfer and PBR licensing, and
Collaborates with national and international bodies on PBR matters
Working as the Secretariat of the Plant Breeders’ Rights Fund.
Section 10 of the PBR Act establishes the Plant Breeders Rights Advisory Committee
comprising of members representing all major stakeholders of the plant breeders’ rights
system including representatives of farmers and seed producers. Its major functions are:
To advice the Minister on the enforcement of the Act;
To receive Reports from the Registrar on the grant of PBR;
To make expert consideration on the grant of PBR reports and tests leading to the
grant;
To advise the Registrar on the grant of PBR.
Establishment of Plant Breeders’ Rights System 12
In Tanzania: Achievements and Challenges

In addition, section 48 of the Act establishes the Plant Breeders Rights Development
Fund which is administered by the Plant Breeders Rights Advisory Committee. The main
objective of the fund is to give grants to private and public breeders to enable them develop
varieties that meet conditions for protection.
6.4 Plant Breeders Rights Development Fund
The Plant Breeders Rights Development Fund became operational towards the end
of 2007 after the Ministries responsible for agricultural matters and Finance agreed to
establish the Fund as required by the Law. In addition to application fees that are paid to the
Fund, the government has been contributing an average of US $ 55,000 annually as seed
money. This amount is not sufficient to support the intended objective of supporting interested
plant breeders to initiate or finalize on going plant breeding work. The Fund is currently
processing 2 applications for grant to support plant breeding and related activities. The money
has enabled the Fund to put in place a system that will be used to meet its intended goals.
The funds have also been used to create awareness among beneficiaries as well as potential
public and private donors who have promised to start contributing to the Fund in the near
future.
6.5 Achievements and Challenges
The PBR system in Tanzania effectively started in January 2005 when the PBR
Office was established following appointment of the Registrar as required by law. The Law
does not provide for the minimum qualifications that the candidate for the position of the
Registrar must possess. Based on the qualifications possessed by the incumbent Registrar it
is evident that the Minister used his powers to appoint some one who has sufficient
knowledge in plant breeding and seed technology and who has some basic knowledge and
experiences of legal matters. These qualifications and good connections with local and
international players in the fields of plant breeding, seed technology and plant variety
protection have greatly contributed to a good start and steady progress made by the PBR
Office in Tanzania.
Before a variety is protected as required by the PBR Act, the office conducts
administrative and technical assessments. Administrative assessments include checking for
correctness of application forms, verification for novelty of a particular variety and payment of
application fees as shown table 2.
Table 2. Prescribed Fees and related Charges
S/No Type of Fees Amount (US$)
1. Application for a grant of PBR 200
2. Application for a Provisional Protection 300
3. For technical evaluation of a variety (DUS) 600
4. Annual maintenance fee 200
5. Purchase of a report from a testing authority in another
320
country
6. Replacement of lost or destroyed certificate 40
7. Claim of priority from a preceding application outside
20
Tanzania
8. For change of an approve denomination 80
9. Reinstatement of an abandoned application on petition 80
10. Surcharge for late payment 60
11. Application for a compulsory license 70
12. Application for extension of the period of a grant 100
13. Inspection of register and documents 40
14. Duplicate page of register or documents 0.50
15. Grant for Plant Breeders Rights certificate 240
As for technical assessments, the office works very closely with the Tanzania Official
Seed Certification Institute (TOSCI) to carry out tests to establish if a variety in question is
Establishment of Plant Breeders’ Rights System 13
In Tanzania: Achievements and Challenges

distinct, uniform and stable. The office has so far received 36 applications (table 3) from both
public and private research institutions and granted twenty five (25) tittles.
Table 3. Applications Received from Various Institutions 18
Applicant/Institution Public/Private Crop Species Number of Remarks
applications
Ministry of Agriculture Public Zea mays L. 5 All are locally
(Maize) developed
varieties
16 All are locally
Anacardium
developed
occdentale L.
varieties
(Cashew)
2 All are locally
Sesamum
developed
indicum L.
varieties
(Sesame)
1 Locally
Phaseolus
vulgaris L. developed
(French Beans) variety
1 Locally
Lycopersicon
esculentum P. developed
Mill variety
(Tomato)
Sub-Total 25
Sokoine University Semi-autonomous All are locally
Phaseolus 2
of Agriculture vulgaris L. developed
(French varieties
Beans)
Tanzania Coffee Private Locally
Coffea 9
Research Institute developed
arabica
(TAcRI) (Coffee) varieties
Total 36
Although the office has made some notable achievements in putting the system in
place and making it operational, there are still a number of challenges that need be sorted out
in order to achieve the intended objectives. The main challenge facing the system is how to
increase number of local and foreign applications for plant breeders’ rights. Low number of
local applications for PBR compared to number of officially released varieties (table 4) is
attributed to lack of sufficient resources allocated to national research institutions for breeding
work. There is also a lack of awareness on the importance and benefit of the PBR system
among local breeders. To-date the office has not received any foreign application due to lack
of truss among international breeders due to the fact that Tanzania is not yet a UPOV
member. This matter has been discussed at length by government through the Ministry
responsible for Agriculture and stakeholders though a number of forums and a decision has
been reached that the country should join UPOV and in order to achieve this internal
administrative and legal processes have already been initiated. The process involves
amending the current Act to comply with provisions of the UPOV Convention of 1991.
Tanzania intends to join UPOV for two main reasons. One is to increase investments
in plant breeding and agriculture in general by raising trust among local and foreign breeders
who believe in the effectiveness of UPOV system of plant variety protection. The other reason
is the fact that Tanzania and other developing nations can only participate and influence
international policy decisions on plant variety protection and utilization of plant genetic
resources by becoming part of the system, otherwise in one way or the other, other countries
will be making rules for Tanzania.
18
Till January 2009.
Establishment of Plant Breeders’ Rights System 14
In Tanzania: Achievements and Challenges

Table 4. List of Officially Released Varieties of Selected Crops in year 2005-
2008
Species: Maize (Zea mays L.)
Variety Year of Owner(s)/Maintainer Special attributes/Disease reaction
release and seed source
PAN 4 2004 Pannar (Pty) Ltd Good resistant to Cob rots, Leaf blight
M-17 (Helminthrosporium turcicum), and Leaf
Rust
Good adaptability, stress tolerance, lodging
resistance, and prolificacy
PAN 4M- 2004 Pannar (Pty) Ltd Good resistant to Cob rots, Leaf blight
19 (Helminthrosporium turcicum), and Leaf
Rust
UH 6303 2004 ARI-Uyole Good resistant to Leaf blight
(Helminthrosporium turcicum), and Grey
Leaf Spot
Longe 2004 Finca Seed Ltd Drought tolerant
6H Good poundability
Early maturity
TAN 2006 Tanseed International Good resistance to Maize streak virus,
H611 Ltd Turcicum leaf blight, Cob rots, Grey leaf
spot and Common rust
Has twice level of essential amino acids:
Lysine and Tryptophane than normal maize
TAN 250 2006 Tanseed International Excellent resistance to Maize streak virus
Ltd and Grey leaf spot, good resistance to
Turcium leaf blight, Cob rot and Common
rust
TAN 254 2006 Tanseed International Good resistance to Maize streak virus,
Ltd Turcicum leaf blight, Cob rots, Grey leaf
spot and Common rust
VUMILIA 2007 ARI Selian Very good resistant to Maize Sreak Virus
K1
VUMILIA 2007 ARI Selian Good resistant to Maize Sreak Virus, cob
H1 rots, leaf blight and rust
WH 505 2007 Western Seed Co. Tolerant to Maize Streak Virus, Leaf blight,
Ltd and rust
WH 502 2007 Western Seed Co. Tolerant to Maize Streak Virus, Leaf blight,
Ltd and rust
WH 403 2007 Western Seed Co. Tolerant to Maize Streak Virus, Leaf blight,
Ltd and rust
Species: Paddy (Oryza sativa)
Variety Year of Owners/Maintainer Special attributes
releas and seed source
e
Kalalu 2006 SUA Resistant to Rice Yellow Mottle Virus and
Rice blast
Mwangaza 2006 SUA Resistant to Rice Yellow Mottle Virus and
Rice blast
Establishment of Plant Breeders’ Rights System 15
In Tanzania: Achievements and Challenges

Species: Wheat (Triticum aestivum.L)
Variety Year of Owner(s)/Maintainer Special attributes/Disease reaction
release and seed source
Riziki –C2 2006 ARI Selian Moderate resistant to Stripe rust, Stem
and Leaf rust
RIZIKI – C1 2006 ARI Selian Moderate resistant to Stripe rust, Stem
and Leaf rust
Lumbesa 2006 ARI Selian Moderate resistant to Stripe rust, Stem
and Leaf rust
Species: Bean (Phaseolus vulgaris L.)
Variety Year of Owner(s)/Maintainer Special attributes/ Disease reaction
release and seed source
Pesa 2006 SUA Moderate resistant and Angular Leaf
Spot.
Resistant to Bean Common Mosaic
Virus and short to modern cooking time
Mshindi 2006 SUA Moderate resistant to Angular Leaf Spot
and Resistant to Bean Common Mosaic
Virus Has short to modern cooking time
Selian 05 2005 ARI Selian Resistant to Bean rust, Anthracnose,
Mosaic Virus, and Halo blight
SELIAN 06 2007 ARI Selian Resistant to Bean rust, Anthracnose,
Mosaic Virus, and Halo blight
CHEUPE 2007 ARI Selian Resistant to Bean rust, Anthracnose,
Mosaic Virus, and Halo blight
Species: Sesame (Sesamum indicum L.)
Variety Year of Owner(s)/Mainta Special attributes/Disease rection
release iner and seed
source
Lindi 02 2006 ARI Naliendele Tolerant to leaf spots, Cercoseptoria sesame,
stem rot, and Fusarium spp.
Susceptible to Flea beetles, (Alocyphe
bimaculate)
Good oil content: 55.61 %
Species: Coffee (Coffea arabica)
N 39-2 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
N 39-3 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
N 39-4 2005 TaCRI Resistant to Coffe Berry Diseases
Establishment of Plant Breeders’ Rights System 16
In Tanzania: Achievements and Challenges

(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
N 39-5 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
N 39-6 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
N 39-7 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
KP 423-1 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
KP 423-3 2005 TaCRI Resistant to Coffe Berry Diseases
(Colletotrichum kahawae), Leaf rust (Hemileia
vastatrix),
Added advantage in bean size
Species: Cashew (Anacardium occidentale L.)
Variety Year of Ownner/Maintai Special alttributes/Disease reaction
release nance and seed
source
AC 1 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 4 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 4/17 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 10 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 10/129 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 10/220 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 14 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 22 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 34 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AC 43 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AZA 2 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
Establishment of Plant Breeders’ Rights System 17
In Tanzania: Achievements and Challenges

AZA 17 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
AZA 17/79 2006 ARI Naliendele
AZA 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
17/156 and Die back
AZA 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
17/158 and Die back
AC 4/285 2006 ARI Naliendele Resistant to Powdery mildew, Anthracnose,
and Die back
6.6 Participation of Stakeholders in the Administration of PBR Act
The Ministry of Agriculture Food Security and Cooperatives, through the Plant
Breeders’ Rights Office, has continuously involved major stakeholders in running the office as
well as in the process of improving operations of the office to implement the PBR Act. In the
day to day administration of the PBR Act the stakeholders are involved through the PBR
Advisory Committee which is composed of members representing various stakeholders. The
Committee meets four times annually. Furthermore stakeholders are always involved before
any major decision is made. Any matter that needs serious decisions is brought to the
attention of the Committee where different opinions are discussed and conclusions submitted
to the government for final decision. Between 2006 and 2008 the PBR Office has conducted
three stakeholders’ workshops to discuss the implementations of the PBR Act. The
participants to the workshops included representatives of relevant government ministries,
representatives of Plant Breeders’ Association of Tanzania (PBAT), Tanzania Horticultural
Association (TAHA) and Tanzania Seed Trade Association (TASTA). One of the most
19
important workshops was the one held in April 2007 to discuss report of an international
study commissioned by TAHA in collaboration with the Ministry of Agriculture to assess
stakeholder’s satisfaction with the processes of implementing the PBR Act. Another important
workshop was organized by the PBR Office in November 2008 to discuss the issue of UPOV
membership 20 . During this workshop, as it came out in other stakeholders’ workshops, it was
agreed that there is a need for the country to join UPOV in order to fully realize the benefits of
the plant variety protection system. The opinion has been presented to the government
through the Ministry responsible for agriculture and the process has already been initiated to
obtain Cabinet and Parliament approval to accede UPOV Convention of 1991 and also
amend the Act to comply with the requirements of the Convention.
Stakeholders were also involved during the process of developing an acceptable
system for licensing of the protected public varieties to end users where draft ministerial
policy paper and guidelines are now being improved through discussions with stakeholders.
The policy paper is intended to put forward the procedure that will be followed to grant license
to any applicant whishing to commercialize plant varieties developed and protected by
government research institutions. The paper will also give formulae that will be used to
charge royalties for such varieties. The ministerial guidelines will guide government
institutions on how to use and share benefits arising from licensing of public varieties among
institutions and individuals who contributed in one way or another in developing a particular
variety.
During the initial workshops and visits to meet individual stakeholders, it was
observed that the level of awareness on the existence and provisions of the Plant Breeders’
Rights Act was very low among many stakeholders including local and foreign breeders and
seed producers. However as the frequency of contacts between the officials of the Plant
Breeders Rights Office and the stakeholders increased their awareness on the matter also
went up. Stakeholders’ and general public awareness was also raised through distribution of
PBR brochures and leaflets as well as through the media. It was however noted that more
resources are needed to enable the office to prepare and disseminate different types of
communication materials. As for foreign beneficiaries such as plant breeders, it has been
leant that their awareness will be effectively raised when the country joins and follows the
UPOV system of plant variety protection
19
Proceedings of the TAHA Stakeholders’ Workshop on PVP held in April in Arusha
20
Proceedings of the PBR Stakeholders’ Workshop on UPOV membership held in November 2008 in
Kibaha
Establishment of Plant Breeders’ Rights System 18
In Tanzania: Achievements and Challenges

6.7 Regional and International Collaboration
The Plant Breeders Rights Office has established links with similar authorities in a
number of countries which are implementing or are in the process of implementing plant
variety protection regimes as well as international organizations related to intellectual property
rights matters. As soon as the Office was established its officials were sent to Kenya and
South Africa to get practical experiences from these countries which have been practicing the
system for more than fifteen years. The officials and technicians of the Office have also
attended courses on how to manage intellectual properties in Sweden and the Netherlands. In
addition to bilateral links the office has also established useful links with international
organization such as UPOV, CAS-IP and AVRDC World Vegetable Centre.
The PBR Office has also been actively involved in the process of establishing a
regional plant breeders’ rights system for the Southern Africa Development Community
(SADC) which is made up of fourteen member states. A draft PBR protocol has been
developed and is waiting for approval of the higher authority of the organization. The protocol
is intended to establish a SADC Plant Breeders’ Rights Office that will be able to grant rights
that that will be honoured in all member countries. This kind of arrangements has been very
successfully practiced by European Union where as one PBR office grants a right that is
honoured in all member states. The Office has also participated in the process of harmonizing
seed policies and legislation in Eastern and Central African countries. Recently the office is
coordinating efforts to expand these initiatives to include all 20 members’ states of African
Regional Intellectual Property Organization (ARIPO). All these initiatives are aimed at
reducing the cost of running a PBR system and increasing investments opportunities in the
region.
The Office has also used its experiences to assist other neighboring countries who
are in the process of establishing legal and institutional frameworks for the protection of plant
variety. A good example of this kind of cooperation is the recent assistance extended to
Zambia by organizing a tour for officials of the Seed Control and Certification Institute which is
designated to oversee implementation of the country’s PBR Act. In October 2008, expert from
the Tanzanian PBR Office was also involved in developing draft Regulations for the
operationalization of the Zambian PBR Act.
The PBR Office has initiated contacts with PBR Authorities of a number of countries including
Kenya, South Africa and the Netherlands to facilitate cooperation and exchange of DUS test
results in the near future.
7. Lessons Learnt and Recommendations
Based on the lessons lent from the findings of the study, the following
recommendations are made for the benefit of the NPI countries that are practicing or
intending to put in place a plant variety protection system:
1. A baseline study like the one conducted by the Ministry responsible for agriculture is
necessary in order to decide whether or not there is a need for a plant variety protection
system in a particular country
2. Internal consultations are necessary before a decision is to put in place a plant variety
protection system
3. It is important to invest in physical infrastructure development and human resources
through provision of short and long term trainings in order to build a credible plant
variety protection system
4. In order for the country to benefit from the plant variety protection legal and institutional
framework put up by a particular legislature, the authorities must continue to create
awareness among stakeholders and the public in general
5. Although the Article 27 (3) (b) of the WTO’s TRIPS Agreement requires each country to
put in place an effective sui generis system for the protection of plant varieties, each
country must carefully study and choose an appropriate option that will produce
maximum benefits. Countries should not just decide to put up a legal system just to
meet TRIPS deadlines because putting up and running a plant variety protection
system is a very expensive exercise.
Establishment of Plant Breeders’ Rights System 19
In Tanzania: Achievements and Challenges

6. Regional collaboration may reduce the cost of putting up and running a plant variety
protection system.
7. Furthermore wherever possible putting up and running a single plant variety protection
office for a region is more cost effective and appropriate for increasing foreign direct
investment in the region due to increased market size.
8. Since not all plant varieties meet conditions for protection, all research institutions
should develop an IP policy that will give guidance on access and benefit sharing of
innovations and are not coved under PVP legal regime.
Establishment of Plant Breeders’ Rights System 20
In Tanzania: Achievements and Challenges

8. References
African Model Law for the Protection of the Rights of Local Communities, Farmers and
Breeders, and for the Regulation of Access to Biological Resources (2000)
Erbisch, F. H. Basic Workbook in Intellectual Property Management, The Agricultural
Biotechnology Support Project, Institute of International Agriculture, Michigan State
University, (2005).
FAO: Study on the need for a plant variety protection system in Tanzania (1996)
International Union for the Protection of New Varieties of Plants (UPOV): UPOV Report on the
Impact of Plant Variety Protection, Geneva, (2005).
International Convention for the Protection of New Varieties of Plants: International Union for
the Protection of New Varieties of Plants (UPOV), Geneva, (1991).
Laurence R. Helfer, ‘Intellectual Property Rights in Plants Varieties: International Legal
Regime and Policy Option for National Governments’, FAO (2004), at pg. 81.
OAU, Organization of African Unity Model Law (2000)
Philippe Cullet, ‘Food Security and Intellectual Property Rights in Developing Countries’,
International Environmental Law Research Center Working Paper 2003-3.
Philippe Cullet, ‘Plant Variety Protection in Africa: Towards Compliance with the TRIPS
Agreement’, Journal of African Laws 45 1 (2001).
Patricia Kameri-Mbote, ‘Community, Farmers’ and Breeders’ Rights in Africa: Towards a
Framework for Sui Generis Legislation’, University of Nairobi Law Journal 2003.
Philippe Cullet, ‘Plant Variety Protection in Africa: Towards Compliance with the TRIPS
Agreement’, Journal of African Laws 45 1 (2001).
South Centre, Trade Related Agenda, Development and Equity Working Papers: Options for
the Implementation of Farmers’ Rights at the National Level (2000)
World Bank, ‘Intellectual Property Rights: Designing Regimes to Support Plant Breeding in
Developing Countries’, Agriculture and Rural Development Department, Report No. 35517-
GLB (2006).
United Republic of Tanzania, Protection of New Plant Varieties (Plant Breeders Rights) Act
(2002)
United Republic of Tanzania, Seeds Act (2003).
Establishment of Plant Breeders’ Rights System 21
In Tanzania: Achievements and Challenges

Acknowledgements
I wish to acknowledge the contributions of many players who in one way or another
contributed to the successful completion of this report. In particular I would like to thank my
employer, the Ministry of Agriculture Food Security and Cooperatives, for allowing me to take
part in this collaborative study assignment and for availing important information used in this
report. I also that CAS-IP for the financial and valuable moral support extended to me. I am
also indebted to the NPI members who participated in the National Initiative Workshop held in
January in Mombasa, Kenya for their suggestions which have been used to improve the study
report.
Establishment of Plant Breeders’ Rights System 22
In Tanzania: Achievements and Challenges

A Review of the Nigerian System of Intellectual Property
A Case Study
Under NABDA/CAS-IP NPI Collaboration Project
Victor M. Ibigbami and Christopher U. Orji
Intellectual Property Desk
NABDA
Email : orjiuchristopher@yahoo.com; viibigbami@yahoo.com
National Biotechnology Development Agency (NABDA)
(Federal Ministry of Science and Technology)
16 Dunukofia Street (Former CAC Building), Area 11, Garki, P. M. B. 5118 WUSE, ABUJA,
NIGERIA. PHONE: 234-9-6715691-2, 234-3145473, Fax: 2345472
Email: nabdamails@yahoo.co.uk Website: www.nabda.gov.ng

Contents
Executive Summary
Acronyms
Chapter 1 Introduction 7
1.1 Background
1.2 Materials and Methods
1.3 Purpose of the Study
Chapter 2 Intellectual Property Laws And Administrative Framework 8
In Nigeria
2.1 IP administration in Nigeria
2.2 International IP Conventions relevant to Nigeria
2.3 World Trade Organization’s TRIPS and related Conventions
2.4 US Supreme Court Judgment on the patenting of
microorganisms
2.5 Reform of Nigeria’s IP laws in conformity with TRIPS
17
Chapter 3 National Office For Technology Acquisition And Promotion
(NOTAP) – Experience In Intellectual Property And
Technology Transfer Management
3.1 NOTAP–Formation and mandate
3.2 Establishment of Intellectual Property and Technology Transfer
Offices (IPTTOS)
3.3 Patent Information and Documentation Centre (PIDC
3.4 Functions of NOTAP on Patent
3.5 Patent Applications Filed and Granted
3.6 Developing Intellectual Property Culture in Nigeria
3.7 Promotion of Incentive/ Reward System
Chapter 4 The Place of IP In Nigeria’s Research System 23
Agricultural research
4.1
4.2 The Bay-Dole Act (Small Business Patent Procedures Act) and
IP in Nigeria
4.3 Policy Linkage of Nigerian R & D Institutions
4.4 National Biotechnology Development Agency (NABDA)
4.5 OBD-Plus Technology- a Nigerian Microbial Invention
4.6 Nigeria’s Draft National Biosafety Bill and the Cartagena
Protocol
4.7 National Varietal Release Committee and the National
Agricultural Seed Service (NSS)
4.8 Space and Information Technology Strategies
A Review of the Nigerian System of Intellectual Property
1

30
Chapter 5 Case Study of A Licensed Nigeria Patent-
Development of Nicosan / Hemoxin: A Drug For The
Management of Sickle Cell Disease
5.1 Historical background
5.2 The birth of NICOSAN/HEMOXIN
5.3 About sickle cell disease
5.4 Hope for the Sicklers
5.5 Production and Marketing of NICOSAN by Xechem
Pharmaceuticals Ltd
5.6 Intellectual Property issues arising from NICOSAN
5.7 Challenges in the Commercialization of NICOSAN
Chapter 6 Lessons and Recommendations Of The Study 34
Chapter 7 Conclusion 37
38
Acknowledgements
A Review of the Nigerian System of Intellectual Property
2

Executive Summary
Intellectual Property (IP) in Nigeria can be traced back to the colonial era when the English
Trademark Ordinance was introduced into the colonies even before the amalgamation of the then
British Northern Nigeria and Southern Nigeria Protectorates to form what is today called Nigeria in
1914. Intellectual Property is administered in Nigeria under two main set ups- industrial property,
which deals with trademarks, patents and industrial designs as well as copyright. The system of
Trademark registration is governed by the Trademarks Act 1965 found in Cap 436 Laws of the
Federation of Nigeria(LFN)1990. Patents and Designs registration on the other hand are governed by
the Patents and Designs Act 1970, to be found in Cap 344, Laws of the Federation of Nigeria 1990.
The Trademarks, Patents and Designs Laws are currently administered by the Commercial Law
Department, Trademarks, Patents and Designs Registry, of the Federal Ministry of Commerce and
Industry. Copyright on the other hand is protected in Nigeria by the Copyright Act and the Nigerian
Copyright Commission (NCC), an agency under the supervision of the Federal Ministry of Justice,
NCC is charged with the primary responsibility for all copyright matters.
National and International developments have necessitated reforms in the intellectual property
system of different countries of the world. The World Trade Organization’s TRIPS (Trade Related
Aspect of Intellectual Property Right) Agreement of 1994, obliges members to provide intellectual
property protection in its laws. TRIPS established minimum standards for the availability, scope, and
use of seven forms of intellectual property: copyright, trademarks, geographical indications, industrial
designs, patents including (Plant Variety Protection, PVP), layout designs for integrated circuits and
undisclosed information (trade secrets). On living organisms, WTO allows countries to patent
microorganisms but requires countries to use a sui generis( ie other, different) system to protect new
plant and animal varieties or by the application of the two types of protection. As a WTO member,
Nigeria is under obligation to reform its intellectual property laws in this direction though in line with
AU Model Law which disapproves the patent of any life form. The mandatory requirement for
amending the laws was January 1, 2000 while the time frame set for implementation was 2005
subject to extension.
Recently in Nigeria (2006), there had been recommendations and steps taken for the different
Intellectual Property schedules to be placed under one umbrella institutional framework for effective
administration and management. To this extent there was a proposal to establish Nigerian Intellectual
Property Organization (NIPO) by the Ministry of Science & Technology and NOTAP, to bring all the
agencies under one umbrella similar to the WIPO system and ensure an effective and balanced
development of the IP system in the country. The quest for a paradigm shift in the framework led to a
move to secure the approval by the then President Olusegun Obasanjo of the Intellectual Property
Commission of Nigeria (IPCON) under the aegis of the Federal Ministry of Justice, thus bringing the
Nigerian Copyright Commission and the Registry of Trademark, Patents and Design together under
one umbrella organization to be hosted by the Federal Ministry of Justice with the view that IP is a
judicial matter.
A draft national IP bill seeking to conform to WTO was prepared by a committee with members drawn
from the stakeholder institution. The draft bill includes Plant Breeders Rights, Animal Breeders Rights
and Farmers Rights. But there is the need to re-examine the proposed draft bill and the umbrella IP
body it is seeking to create in view of experiences in other countries of the world and the expectations
from the reform. This will enable Nigeria to benefit from the gains associated with the WTO’s TRIPS
including associated increased investments and trade in agriculture and biotechnology. There is also
the possibility of sanctions from the WTO if Nigeria continues to delay the reform process.
The National Office for Technology Acquisition and Promotion (NOTAP), an agency under the aegis
of the Federal Ministry of Science and Technology, established by Decree No. 70 of 1979 also plays
important role in Intellectual Property and Technology Transfer (TT) Management in Nigeria. It does
this by assisting researchers to patent their inventions free of charge, patent documentation,
establishment of technology transfer offices in the universities and research institutes, awareness
creation to increase the culture of patent in the country and assisting in licensing and
commercialization. Records available at NOTAP shows that for the period 1998-2007(10years) the
non-conventional (local) patents filed at the Trademarks, Patent and Designs Registry was 566
representing 11.7% of the total applications filed, while the conventional (foreign) patents filed was
A Review of the Nigerian System of Intellectual Property
3

4,257 representing 88.3% of the total patents filed. For patents granted, non-conventional (local) has
318 applications granted representing 11.7% of the total granted, while the conventional (foreign) has
2,398 representing 88.3% of the total number of patents granted.
Also considering the challenges and the objectives of establishing the Agricultural Research Council
of Nigeria (ARCN), the Council has plans of setting up a central IP management body to be housed in
its Legal Unit to coordinate intellectual property issues in the agricultural research institutes. This is
because the council is aware that the public goods investments policy in agriculture is facing a bleak
future for a number of reasons principal amongst which are: Increased emphasis on market
mechanisms facing public funded organizations to respond to broad economic opportunities, and
changes brought about by the introduction of intellectual property rights (IPR). The National Council
on Science and Technology (NCST) and the newly formed Nigerian. Research and Development
Coordinating Council (NRDCC) are important organs through which S&T policy issues affecting R&D
such as Intellectual Property can be harmonized for the growth of R&D in Nigeria.
A few recommendations have been offered. A study need to be carried out to determine which model
of IP office the country should adopt- an umbrella body or a decentralized system of having the
different IP registries in different ministries. This will enable the country overcome the present
impasse in creating an umbrella agency. Irrespective of the outcome of the exercise, one clear
observation under the new dispensation is that Plant Varieties Protection (PVP), Animal Breeders
Rights, Farmers Rights and microorganisms are sui generis (unique, different), technological patents
going by the WTO and extended by the AU Model Law which does not allow the patent of any life
form. This implies that they are not to be administered within the existing IP frameworks is the trend
in most other countries, and these are usually located within the technology system of the country for
a balanced development.
It is thus recommended that the National Crop Varieties and Livestock Breeds Registration and
Release Committee Decree 33 of 1987 be amended to include Plant Variety Protection (PVP), Animal
Breeders Rights, and Farmers Rights. The Committee is currently administered by the National
Centre for Genetic Resources and Biotechnology (NACGRAB). Another recommendation is to enact a
National Biotechnology Law. This will give a legal backing to the establishment of the National
Biotechnology Development Agency (NABDA), regulate research on microorganisms in terms of IP,
and regulate biotechnology research with respect to benefit sharing on biopharmaceuticals and
nutraceuticals from bioresources. Alternatively, two separate laws on new plant varieties protection
and to provide for a sui generis system for new microorganisms respectively should be enacted. Also
the lessons offered by the licensing of NICOSAN- a drug developed by the National Institute of
Pharmaceutical Research and Development (NIPRD) through a lead from traditional knowledge but
licensed to Xechem International, an American company, could be useful in the exploitation of our rich
genetic resources for disease control and wealth creation if harnessed.
A Review of the Nigerian System of Intellectual Property
4

Acronyms
AARD Agency for Agricultural Research and Development
AU-STRC African Union Scientific, Technical and Research Commission
ARCN Agricultural Research Council of Nigeria
AU Africa Union
BRELA Business Registration and Licensing Agency
CAS-IP Central Advisory Service on Intellectual Property
CHOP Children’s Hospital, Philadelphia
CPB Cartagena Protocol on Biosafety
CGIAR Consultative Group on International Agricultural Research
CBD Convention on Biological Diversity
CIPRO Companies and Intellectual Property Registration Office
DTI Department of Trade and Industry
EMBRAPA Brazil Agency for Agricultural Research, and Development
FMST Federal Ministry of Science & Technology
FDA Food and Drug Administration
FGN Federal Government of Nigeria
GI Geographical Indications
ICANN Internet Corporation for Assigned Names and Numbers
ICT Information and Communication Technology
IP Intellectual Property
IPCON Intellectual Property Commission of Nigeria
IPR Intellectual Property Right
IPS Intellectual Property System
IPTTO Property and Technology Transfer Offices
LFN Laws of the Federation of Nigeria
MARDI Malaysia Agricultural Research and Development Institute
NABDA National Biotechnology Development Agency
NAFDAC National Agency for Food and Drug Administration and Control
NASRDA National Space Research and Development Agency
NARI National Agricultural Research Institutes
NARS Nigeria Agricultural Research System
NCC Nigerian Copyright Commission
NCST National Council of Science and Technology
NCST Nigerian Council on Science and Technology
NGO Non-Governmental Organizations
NHLBI-SCDR National, Heart Lung and Blood Institute, Sickle Cell Disease
Lab Reference Laboratory
NICTIB National Information and Communication Technology Infrastructure
Backbone
NIGCOMSAT Nigeria Communication Satellite
NIPO Nigeria Intellectual Property Organization
NIPRD National Institute of Pharmaceutical Research and Development
NITDA National Information Technology Development Agency
NJAES New Jersey Agricultural Experiment Station
NNMDA Nigeria Natural Medicine Development Agency(NNMDA).
NOIP National Office of Industrial Property.
NOTAP National Office for Technology Acquisition and Promotion
NPI National Partners Initiative
NRDCC National Research and Development Coordinating Council
A Review of the Nigerian System of Intellectual Property
5

NSS National Seed Service.
NUC National Universities Commission
OFAR On Farm Adaptive Research
PBR Plant Breeders Rights
PCT Patent Cooperation Treaty
PDC Patent Information and Documentation Centre
PIC Prior Informed Consent
PROMETRA International Association for the Promotion of Traditional Medicine
PVP Plant Variety Protection,
R&D Research and Development
RI Research Institute
SACRO South African Companies Registration Office
SAPTO South African Patents & Trade Marks Office
SCD Sickle Cell Disease
SHESTCO Sheda Science and Technology Complex
S&T Science and Technology
TMKP Traditional Medicine Knowledge and Practice
TRIPS Trade Related Aspect of Intellectual Property Right
TT Technology Transfer
TTO Technology Transfer Offices
UNIDO United Nations Industrial Organization.
UPOV Union for the Protection of Plant Varieties
VCU Virginia Commonwealth University
WHO World Health Organization
WIPO World Intellectual Property Organization
A Review of the Nigerian System of Intellectual Property
6

1. Introduction
1.1 Background of the Study
Intellectual property protection in Nigeria can be traced back to the colonial era, when the English
Trademarks Ordinance was introduced into the colonies, even before the amalgamation of northern
and southern protectorates to form what is now called Nigeria, in 1914. Intellectual Property is
administered in Nigeria under two main set ups. Intellectual Property is administered in Nigeria under
two main set ups- Industrial property, which deals with trademarks, patents and industrial designs as
well as copyright
The system of Trademark registration is governed by the Trademarks Act 1965 found in Cap 436
Laws of the Federation of Nigeria 1990. Patents and Designs registration on the other hand are
governed by the Patents and Designs Act 1970, to be found in Cap 344, Laws of the Federation of
Nigeria (LFN) 1990. The Trademarks, Patents and Designs Laws are currently administered by the
Commercial Law Department, Trademarks, Patents and Designs Registry, of the Federal Ministry of
Commerce and Industry.
Copyright on the other hand is protected in Nigeria by the Copyright Act. One of the most salutary
provisions of the Act is the establishment of a body charged with the responsibility of implementing
and enforcing the law. Section 30 of the Act established the Nigerian Copyright Commission (NCC).
An agency under the supervision of the Federal Ministry of Justice, NCC is charged with the primary
responsibility for all copyright matters.
National and International developments have necessitated reforms in the intellectual property
system of different countries of the world. The World Trade Organization’s TRIPS (Trade Related
Aspect of Intellectual Property Right Agreement of 1994, obliges members to provide intellectual
Property protection in its laws. TRIPS established minimum standards for the availability, scope, and
use of seven forms of intellectual property: copyright, trademarks, geographical indications, industrial
designs, patents, layout designs for integrated circuits and undisclosed information (trade secrets). As
a WTO member, Nigeria is under obligation to reform its intellectual property laws in this direction.
WTO TRIPS has however provision for sui generis (unique, standalone) IP systems for which the AU
Model Law endorsed by all African Heads of State, has given guidelines to African countries.
National Biotechnology Development Agency (an agency in the Federal Ministry of Science and
Technology ) is participating in the National Partners Initiative(NPI), a programme of the Central
Advisory Service on Intellectual Property(CAS-IP) of the Consultative Group on International
Agricultural Research(CGIAR) which is based in Rome, Italy. The aim of the NPI is developing an
international network of intellectual Property (IP) experts involved in issues relating to management of
IP in agriculture. CAS-IP NPI is doing this because it believes that IP management should be about
ensuring that research outputs are accessible for use to benefit those who need them most- resource
poor farmers. CAS-IP aims to enable access to, and the use of CGIAR products for the benefit of the
poor through effective IP and technology transfer management. Twelve countries are participating in
the NPI: Burkina Faso, India, Indonesia, Kenya, Malaysia, Nigeria, Peru, Philippines, Tanzania, and
Thailand.
The review of Nigeria’s IP policies, with a view to making recommendations for reform towards
agricultural development in line with the objectives of the CAS-IP NPI and using the TRIPS and AU
Model Law tools is a major objective of this paper. Issues discussed include Nigeria IP laws, and the
framework for administration, the Copyright Notification System of the National Copyright Commission
(NCC), the experience of the National Office for Technology Acquisition and Promotion (NOTAP) in
promoting IP and TT and the role of the R & D system in promoting IP. The case study of NICOSAN -
a drug for the management of Sickle Cell Disease as a licensed Nigerian patent was also discussed.
1.2 Objectives of the Study
The study seeks to review the Nigerian system of Intellectual Property and Technology Transfer
management viewed against the country’ s obligations as a WTO and AU member. It makes
recommendations that will guide our policy makers as they try to reform our IP system to meet our
A Review of the Nigerian System of Intellectual Property
7

national aspirations and as well conform with international standards. It tries to recommend legal and
administrative framework needed for the reform. It is also hoped that Nigeria’s experiences in IP
management when it is shared will offer a few lessons to other NPI participating countries either by
avoiding Nigeria’s mistakes or in following Nigeria’s footsteps where it can make any positive
contribution.
1.3 Materials and Methods
To achieve the objectives of the study all available documents on the Nigerian system of
intellectual property were reviewed. This was intended to review operations in the IP institutions.
Some documents relating to Nigeria’s S & T policies as well as biotechnology policy were also
reviewed. The institutions from which documents were reviewed include -Trademarks, Patents and
Designs Registry, Nigerian Copyright Commission(NCC), Xechem Pharmaceuticals Ltd, Federal
Ministry of Science and Technology, Federal Ministry of Commerce and Industry, Agricultural
Research Council of Nigeria (ARCN), Sheda Science and Technology Complex, National Office for
Technology Acquisition and Promotion(NOTAP), National Biotechnology Development
Agency(NBDA), Nigeria Natural Medicine Development Agency (NNMDA) and National Centre for
Genetic Resources and Biotechnology(NACGRAB).
This study coincided with another study on the Compendium on Intellectual Property in the
developing countries conducted by CAS-IP’s NPI. Questionnaires administered on the Nigerian
system of IP for that purpose were also useful for this study. Interview from some officials of the major
stakeholders of the system were also conducted including officials of National Agency for food and
Drug Administration and Control (NAFDAC) and National Institute Pharmaceutical Research and
Development. Websites of some relevant institutions were also visited including Africa Union (AU),
WIPO, UPOV, Xechem International Inc. and Rutgers State University, New Jersey, USA.
2. Intellectual Property Laws and Administrative Framework In
Nigeria
2.1 IP administration in Nigeria
Intellectual property protection in Nigeria can be traced back to the colonial era, when the
English trademarks ordinance was introduced into the colonies, even before the amalgamation of
northern and southern protectorates to form what is now called Nigeria, in 1914. Intellectual Property
is administered in Nigeria under two main set ups.
i. Industrial property, which deals with trademarks, patents and industrial designs.
The system of Trademark registration is governed by the Trademarks Act 1965 found in Cap 436
Laws of the Federation of Nigeria 1990. Patents and Designs registration on the other hand are
governed by the Patents and Designs Act 1970, to be found in Cap 344, Laws of the Federation of
Nigeria (LFN) 1990. The Trademarks, Patents and Designs Laws are currently administered by the
Commercial Law Department, Trademarks, Patents and Designs Registry, of the Federal Ministry of
Commerce and Industry1.
The country has no legislation for Geographical Indications (GI). GI is administered as part of
Trademarks under Section 43(1) of the Trademarks Act CAP 436(Certification Trademarks), Laws of
the Federation of Nigeria (LFN) 19902.
1
Yauri Shafiu Adamu (Senior Asst. Registrar Trademarks, Patents and Designs Registry; Federal Ministry of
Commerce and Industry, Old Secretariat, Area 1, Garki, Abuja) The System Of Intellectual Property Law And The
Registration Framework In Nigeria: a paper contribution.
2
See http//: www.nigerianlaws.com
A Review of the Nigerian System of Intellectual Property
8

A major drawback in the registry is inadequate funding which has not enabled it to re-tool sufficiently
to meet international standard especially in the area of database management. This calls for a review
of the status of the registry with a view to giving it some degree of autonomy.
i. Copyright
Copyright on the other hand is protected in Nigeria by the Copyright Act 3 . Nigeria is a
member of the Berne Union 4 . Consequently, Nigeria is bound by the formality-free principle of
copyright protection. Copyright protection in Nigeria is thus granted by the law automatically. Under
the Nigerian Copyright law, beyond satisfying the basic requirement of originality and fixation in
tangible medium from which it could be perceived or communicated, every copyright work is protected
upon their creation with the import that copyright protection is automatic. There is no requirement of
copyright registration under the Copyright Act. However, owing to the need to satisfy the constant
yearning of right owners for a framework for establishing evidence of existence of works, especially
unpublished materials, and pursuant to its statutory mandate to maintain a data bank of all authors
and their works, the Nigerian Copyright Commission has introduced the Copyright Notification
scheme, which allows authors of copyright works to notify the Commission of the creation and or
existence of works, and all other information relating to the work.
One of the most salutary provisions of the Act is the establishment of a body charged with the
responsibility of implementing and enforcing the law. Section 30 of the Act established the Nigerian
Copyright Commission (NCC). An agency of the Federal Ministry of Justice (earlier created under the
Federal Ministry of Information), NCC is charged with the primary responsibility for all copyright
matters. With the 1992 and 1999 amendments, the powers of the Commission have been expanded
to cover enforcement of the law. Consequently, the Commission can appoint copyright inspectors who
5
are empowered to conduct investigation and prosecute copyright infringement cases . The inspectors
have powers analogous to the powers of a police officer. The Commission is also empowered to
make regulations prescribing conditions necessary for engaging in business involving the production,
distribution or public exhibition of copyright works. 6 This power has served as a powerful tool in
initiating some important rights management schemes, which are aimed at creating a favorable
environment for the exercise of rights by authors and right owners 7 .
The unfortunate byline is the low patronage of the scheme by authors and copyright owners. Between
2005 when the scheme was introduced in its present form and June 2008, the NCC received 995
applications only 8 .
3
Cap 68 Laws of the Federation of Nigeria 1990 as amended by Copyright (Amendment) Decree
No.98 of 1992, and Copyright (Amendment) Decree No.42 of 1999. The Copyright Act was
promulgated in 1988 as Copyright Decree No. 43 of 1988.
4
Nigeria became a member of Berne Union in 1993.
5
See Section 32A of the Act
6
Section 37 (4) of the Copyright Act.
7
Adewopo Adebambo; Framework for Copyright Registration: a Case Study of the Copyright
Notification Scheme of the Nigerian Copyright Commission(NCC) , A paper submitted by the Director
General, Nigerian Copyright Commission to the National Biotechnology Development Agency as part
of the Case Study on the System of IP in Nigeria.
8
Data obtained from the Copyright Notification desk at NCC. Out of the 995 applications, literary
works had 641, sound recordings 209, cinematograph film 115, artistic works 20, musical works 2,
transfer of rights 8.
A Review of the Nigerian System of Intellectual Property
9

Table 1: Applications received by Nigerian Copyright Commission Between 2005 and
June 2008
TYPE OF COPYRIGHT NO. OF APPLICATIONS
LITERARY WORKS 641
SOUND RECORDINGS 209
CINEMATOGRAPH FILM 115
ARTISTIC WORKS 20
MUSICAL WORKS 2
TRANSFER OF RIGHTS 8
TOTAL 995
20, 2, 8
115
209
641
This does not reflect the robust capacity of the creative industries today in Nigeria. For instance the
Nigerian film industry often called Nollywood is ranked as one of the most vibrant in the world. The
often cited reason for this low patronage is low level of awareness among authors. While such may
A Review of the Nigerian System of Intellectual Property
10

hold true for some authors, especially the uneducated ones, we cannot say the same of the more
enlightened sections of the creative industries. On a positive note however, the Copyright Notification
is already beginning to prove its utility in cases of disputes. In a number of court cases, parties have
been known to rely on the Copyright Notification Certificate to advance their claims. More so, some
producers of works and prospective licensees now insist on documentary evidence of copyright
ownership before accepting works for reproduction or signing any user license. The National Film and
Video Censors Board has also prescribed as a condition for accepting a film for censorship and
classification, the possession of a Copyright Notification Certificate issued by the NCC. These
developments will hopefully strengthen the legal and administrative initiatives towards entrenching an
effective rights management regime in the copyright industries.
2.2 International IP Conventions relevant to Nigeria
The above IP laws are designed and tailored substantially along with international treaties and
conventions on intellectual property. The following are international IP conventions that Nigeria has
endorsed.
i. The Universal Declaration of human rights (Article 27), which includes, the right to benefit
from the protection of authorship of any scientific, literary, or artistic production.
ii. The Paris Convention for the Protection of Industrial Property of 1883 was the first
international agreement on the protection of intellectual property rights. It deals with only
industrial property as other forms of Intellectual Property Rights (IPR) were considered
non-industrial in nature. The convention conveys protection of trademarks, patents and
industrial designs.
iii. The Berne Convention of 1886 covers literary and artistic works. Nigeria became a member
of the Berne Union in 1993.
iv. The Rome convention of 1961 provides protection to producers of phonograms and
broadcasting organization.
v. The PCT, Patent Cooperation Treaty facilitate patent filing in different PCT member states,
using a streamlined procedure.
• Some important International IP Conventions that Nigeria has not endorsed include the
following:
i. Madrid System for the International Registration of Marks. The Madrid Protocol was adopted
in June 1989 and entered into force in 1995. The protocol is one of two treaties
comprising the Madrid System for international Registration of Trademarks. The first
treaty, the 1891 Madrid Agreement provides for the registration of trademarks in several
countries through the filing of one international trademark registration with WIPO.
ii. Union for the Protection of Plant Varieties (UPOV) which will be discussed here later.
2.3 World Trade Organization’s TRIPS and related Issues.
2.3.1. World Trade Organization’s TRIPS
The World Trade Organization’s TRIPS (Trade Related Aspects of Intellectual Property
Rights) 9 Agreement of 1994 obliges members to provide IP protection in their laws. TRIPS establish
minimum standards for the availability, scope, and use of seven forms of intellectual property:
copyright, trademarks, geographical indications, industrial designs, patents (including Plant Variety
Protection i.e. Plant Breeders Right), layout designs for integrated circuits and undisclosed
information (trade secrets). TRIPS spelt out permissible limitations and exceptions in order to balance
the interests of IP with interests in other areas, such as public health and economic development.
TRIPS is unique among other IPR accords because membership in the WTO is a “package
deal” meaning that WTO members are not free to pick and choose among agreements. They are
9
http//:www.wto.org
A Review of the Nigerian System of Intellectual Property
11

subject to all the WTO’s multilateral agreements. However, it allowed countries to exclude from
protection “plants and animals other than microorganisms”. It does require that countries provide for
protection of plant varieties either by patents or by an effective sui generis (literally meaning of its own
kind/genus or unique in its characteristics 10 or stand alone 11 ) system e.g. PVP or by applying both
systems. The adoption of the Agreement also covered enforcement objectives that members are
required to comply with and also provides for transitional period for compliance by members. The
mandatory requirement for amending the laws was January 1, 2000 while the time frame set for
implementation was 2005.
The concerns of developing countries that TRIPS will not adequately compensate them as
sources of genetic resources while they lack the capacity to compete in technologies that will
generate patents is noteworthy. Indigenous communities also believe that all life forms and life
creating processes are sacred and should not be subject to proprietary ownership. There are
therefore calls for review of aspects of TRIPS. This has prompted the AU to develop a Model Law to
guide member countries to develop national laws on some of the contentious areas.
One major drawback of TRIPS is that it did not set definite guidelines nor was any mechanism
put in place to assist countries in the reform of their laws. Implementation of the reform was left at the
mercy of national bureaucrats who may be tempted to influence the process to the advantage of their
institutions.
2.3.2 TRIPS and Biotechnology Inventions
Under Article 27, TRIPS obliges patents for both processes and products, to be granted in all
fields of technology. Article 27.3 (b), however allows the exclusion of plants and animals and
essentially biological processes for their production from patent grant but obliges the protection of
microorganisms and microbiological or non-biological processes for their production. In this regard
issues like microbes, genes, gene sequences, genetic engineering and bioinformatics become very
relevant as they are important processes of biotechnological inventions which are often carried out
through genetic modification. However, there are a lot of microbiological discoveries that does not
involve genetic modification.
Another key concern of IP and biotechnology is the patenting of research tools or the grant of overly
broad patents that could potentially block useful research 12 . TRIPS provide a way out under Article 30
on exceptions to patent rights and Article 31 on other use without the authorization of the patentee.
Article 30 allows limited exclusions to the rights conferred by the patent “provided that such
exceptions do not unreasonably conflict with a normal exploitation of a patent and do not
unreasonably prejudice the legitimate interests of the patent owner”. Significantly under this provision
interests of third parties such as non commercial users of patented product and process for research
and experimental purposes would be permitted 13 .
2.3.3. Union for the Protection of Plant Varieties (UPOV)
The purpose of this Convention Union pour la Protection des Obtentions Végétales (UPOV)
or the International Union for the Protection of New Varieties of Plants signed in 1961 with its latest
amendment in 1991 is to ensure that the members of the Union acknowledges the achievement of
breeders of new plants by granting to them an intellectual property right on the basis of a set of clearly
defined principles. Plant Variety Protection is a patent required under TRIPS but on a sui generis
basis. Nigeria has no Plant Variety Protection Act. It is worthy of note that many UPOV member
countries have reported increases in plant breeding activities with direct effect on their agricultural
industries.
10
Dictionary.com \"Word of the day\" 2001-06-14 [1] accessed 2007-10-14. In
http://en.wikipedia.org/wiki/Sui_generis
11
http://en.wikipedia.org/wiki/Plant_breeders' right
12
Watal, J (2000) Intellectual Property and Biotechnology: trade interests of developing countries. Int. J.
Biotechnology, Vol. 2, Nos 1/2/3, 2000.
13
Ibid
A Review of the Nigerian System of Intellectual Property
12

United Kingdom combined the Plant Variety Protection and the Seed Act and enacted the Plant
Variety and Seeds Act 1964 (UK). 14 The US on its part passed the Plant Variety Protection Act 1970
(US). This legislation provided protection to developers of novel, sexually reproduced plants.
However, the United States originally acceded to the UPOV Convention on the basis of the Plant
Patent Act of 1930 that provided for the patent of only asexually reproduced plants and did not bring
the PVP Act into compliance with UPOV requirements until 1984 when the Commissioner of Plant
Variety Protection promulgated rules to do so. Since the 1980s, the US Patent Office has granted
patents on plants, including plant varieties: this provides a second way of protecting plant varieties in
the USA. The landmark Supreme Court decision of Diamond v. Chakrabarty, 447 U.S. 303 (1980),
suggested the possibility of securing utility patents on plants previously thought eligible solely for
protection under the PVP Act. Two decades later, in the 2001 decision of J.E.M. Ag Supply, Inc. v.
Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001), the Court conclusively held that sexually
reproduced plants eligible for protection under the PVPA are also eligible for utility patents. Like USA,
Australia passed the Plant Variety Protection Act 1987 and the Plant Breeders Rights Act 1994.
Australian patent law also permits the patenting of plant varieties. In total, 65 countries have signed
the UPOV Convention and adopted plant breeders' rights legislation consistent with the requirements
of the convention.
2.3.5 Convention on Biodiversity
The Convention on Biological Diversity (CBD), which came into effect in 1993, reflects some
issues of IP. The CBD which came into effect in 1993 was originally intended to preserve biological
diversity, but its objectives also include the implementation of fair and equitable sharing of the benefits
arising from the use of genetic resources. With regard to the handling of genetic resources, the CBD
stipulates that each country has sovereign rights over its natural resources (Article 15, Paragraph 1),
that access to genetic resources requires prior informed consent (PIC) of the contracting state
providing the resources (Article 15, Paragraph 5), and that measures shall be taken with the aim of
sharing in a fair and equitable way the results of research and development based on genetic
resources, and the benefits arising from the commercial and other use of genetic resources, with the
contracting state providing the genetic resources (Article 15, Paragraph 7).
The link between IPR and CBD originated from the concept of ‘bioprospecting’ (in contrast to
other forms of prospecting such as oil prospecting). In searching for new chemical entities or useful
characteristics, some research based industries have found it profitable to screen natural resources
such as soil samples, marine waters, insects, tropical plants and genes in developing countries. Some
feel that, as compared to the conventional system of screening millions of synthesized chemicals,
bioprospecting especially if further based on traditional knowledge, may even cut costs of
pharmaceutical R&D. The link to IPRs arises from the fact that in many instances, the bioprospecting
or their licenses are granted patent right over these products without any acknowledgement of the
contribution of countries/regions of origin or of indigenous communities/individuals. Developing
countries like Nigeria are demanding that when profits are reaped through bioprospecting, benefits
and technologies developed should be shared with the original suppliers of genetic resources or
traditional knowledge. This forms part of the objectives of the African Model Law in the aspect dealing
with Community Rights. The recent licensing of the patent of NICOSAN-a drug for the management of
Sickle Cell disease by an American Company is a good example. Originally discovered through
indigenous knowledge the drug was developed in Nigeria by NIPRD using tropical herbs. The case
study of NICOSAN is presented at a latter part of this study. The formation of drug based
biotechnology companies in many countries of the world is on the basis of research results from
genetic resources (bioresources) as illustrated with NICOSAN.
14
http://en.wikipedia.org/wiki/Plant_breeders' right
A Review of the Nigerian System of Intellectual Property
13

As of January 2007, 190 countries have become parties to the Convention. The CBD
recognizes the sovereign right of countries over their genetic resources. However, it does not provide
any specific mechanisms of benefit sharing, so in actuality, although there are cases where benefit
sharing has taken place as expected, for the most part there has continued to be conflict between
developing countries like Nigeria as the holders of genetic resources and developed countries as the
users of those resources.
2.3.4. African Model Legislation - for the Protection of the Rights of Local
Communities, Farmers and Breeders, and for the Regulation of Access to Biological
Resources.
The African Model Legislation (also called the African Model Law) which took effect in 2000
deals with access to biological resources, benefit sharing and the right of breeders and farmers over
their knowledge and resources.
The law crafted under the sui generis option is intended to guide member countries to enact
their Plant Variety Act/Plant Breeders Right, Animal Breeders Right and Farmers Rights in line with
WTO TRIPS. It also includes guidelines on benefit sharing for individuals and local communities for
genetic resources as provided by the Convention on Biodiversity (CBD) as well as guidelines on the
patent of life forms which it does not approve on the ground that life is sacred and should not be
subject to property ownership like patent. The implication of no patent for all life forms could be that
only a sui generis system and not the existing IP mechanisms could be employed to patent all living
organisms including microorganisms. A few African countries have already enacted the PBR such as
Kenya. South Africa has operated PBR for over 15years as at 2008. Also Tanzania more recently
enacted the PBR. All African Heads of State have signed AU Model Law but only very few have
reviewed their IP laws in line with it.
2.4. U.S. Supreme Court judgment on the patenting of micro-organisms (1980)
The United States Supreme Court judgment that permits the patenting of microorganisms is
instructive to us in Nigeria particularly in respect of biotechnology. Tagged Diamond v Chakrabarty
(1980), the judgment is based on the law that provides for the issuance of a patent to a person who
invents or discovers \"any\" new and useful \"manufacture\" or \"composition of matter.\" The respondent
in 1972 filed a patent application relating to his invention of a human-made, genetically engineered
bacterium of the genus Pseudomonas capable of breaking down crude oil (thus used for
bioremediation of oil polluted soils), a property which is possessed by no naturally occurring bacteria
to that level of efficiency. A patent examiner's rejection of the patent application's claims for the new
bacteria was affirmed by their Patent Office Board of Appeals on the ground that living things are not
patentable subject matter under that section of the law. The Court of Customs and Patent Appeals
reversed the judgment, concluding that the fact that micro-organisms are alive is without legal
significance for purposes of the patent law. This appeal court judgment was upheld by US Supreme
court and forms the basis for patenting microorganisms in US 15 . Japan and Europe are following this
model by patenting micro-organisms. WTO TRIPS provision on microorganisms also follows this
model by allowing for the patent of microorganisms.
The AU Model Law however rejects the patent of any living organism. If Nigeria should adopt
the AU Model, then only a sui generis system that is different from the present patent law in Nigeria
can be used to protect any existing but newly discovered microorganism, or a newly created
microorganism which is often achieved by genetic engineering/modification technique.
2.5. Reform of Nigeria’s IP laws in conformity with TRIPS
It is noteworthy that, the Nigerian IP legal framework seems to have been tailored towards
what obtained in Britain/United Kingdom, which colonized Nigeria and established a system similar to
what its home government had on ground.
15
http://supreme.justia.com/us/447/303/
A Review of the Nigerian System of Intellectual Property
14

But despite the country’s active participation in international conventions as outlined above
and growing interest in IPR’s protection in the international scene, the colonial model had persisted
without considerable variation. It is only recently that the nation’s legislation on IP is being reviewed
in conformity with WTO/TRIPS obligation. Presently the country has no legislations on Geographical
Indications, Plant Varieties Protection (Plant Breeders Right), Integrated Circuit Design, Undisclosed
Information or Trade Secrets, Biodiversity and Traditional knowledge in various sectors. It also has
not reviewed its existing patent law to provide for the patent of microorganisms and its processes of
production.
With respect to geographical indication (GI) which identify a good as originating in a locality
where a given quality, reputation, or other characteristic geographic origin, some countries separately
protect geographical indications for goods such as French cognac or Scotch whiskey. In the United
States, geographical indications are protected together with collective marks as certification trade
marks. They are treated as a subset of trademarks with the aim of preventing consumer confusion
16
and protect business interests . This is the system that Nigeria is practicing now and is not planning
to create a separate law or registry for GI.
Recently in Nigeria (2006), there had been recommendations and steps taken for the different
Intellectual Property schedules to be placed under one umbrella institutional framework for effective
administration and management. To this extent there was a proposal to establish Nigerian Intellectual
Property Organization (NIPO) by the Ministry of Science & Technology and NOTAP, to bring all the
agencies under one umbrella and ensure an effective and balanced development of the IP system in
the country. The quest for a paradigm shift in the framework led to a move to secure the approval by
the then President Olusegun Obasanjo of the Intellectual Property Commission of Nigeria (IPCON)
under the aegis of the Federal Ministry of Justice, thus bringing the Nigerian Copyright Commission
and the Registry of Trademark, Patents and Design together under one umbrella organization to be
hosted by the Federal Ministry of Justice.
A draft national IP bill was prepared by a committee with members drawn from the
stakeholder institutions. The draft bill also includes some of the WTO requirements such as Plant
Breeders Rights, Animal Breeders Rights and Farmers Rights. But the delay in addressing the issue
of an umbrella body for IP administration in Nigeria has prevented the bill from making any significant
progress. The effect is that Nigeria is not benefitting from the gains associated with the WTO’s TRIPS
including associated increased investments in agriculture and allied industries from within and outside
the country. Nigeria also faces the threat of sanctions from WTO as time elapses.
A more detailed study showing which of the two modes of IP offices– centralized or
distributed- that is more effective may, need to be carried out to determine which model that Nigeria
should adopt. The result will help to guide the country in taking a quicker decision over the present
impasse. But irrespective of the outcome of such a study a survey carried out in this study can serve
as a guide. Historically, the different types of IP and their administrative frameworks had not
developed collectively hence their location in different administrative set-ups in different countries. An
internet survey of 191 countries shows that only 8 countries of the world have both their different
offices for Copyright and Industrial Property under their Ministry of Justice. These countries are:
Kazastan, Saint Kitts and Nevis, Samoa, Solomon Islands, Swaziland, Sweden, Uganda and the Holy
17
See (Vatican City) .
In the South African Model, what they have is Companies and Intellectual Property Registration Office
(CIPRO) in the Department of Trade and Industry (DTI).This was after a merger of two former
directorates of the DTI: SACRO – South African Companies Registration Office and SAPTO – South
African Patents & Trade Marks Office, from 1st March 2002 into a single Business Agency. Such a
16
Field Thomas G. What is Intellectual Property: file://E:\\IPR\\Focus on Intellectual Property,
http://www.piercelaw.edu/tfield/tgf.htm.,19th March, 2007, p. 6
17
www.wipo.int/directory/en/urls.jsp
A Review of the Nigerian System of Intellectual Property
15

merger within the same Ministry/Department would be easier than a merger cutting across different
Ministries/Departments as Nigeria is trying to implement since Nigeria’s Ministries are averse to losing
any of their agencies. It was observed that the Federal Ministry of Commerce and Industry in Nigeria
is averse to losing the Trademarks, Patent and Designs Registry that has been under its
administration since the amalgamation of Northern and Southern Nigeria into one country in 1914. In
Tanzania both Copyright and Industrial Property is done by the Business Registration and Licensing
Agency (BRELA) under the Ministry of Industry and Trade. Similarly, United States has both the
Copyright Office and the Industrial Property Office in the Commerce Department. The example of
India which has amended all the relevant legislations for the various forms of intellectual property with
respect to the mandatory requirement of WTO is presented in table 2 below showing a distributed and
not an umbrella system of IP offices.
Besides, WTO’s TRIPS requirement for nations to make reforms to provide for different types
of IP including the new technology patents does not recommend an umbrella IP office nor make it
compulsory. About 65 countries under the membership of the Union for the Protection of Plant
Varieties have got Plant Varieties Protection (PVP) law. Some other countries have got the law but
are not yet members of UPOV. The European Union Office is called Community Plant Variety
Protection Office distinct from the European Patent Office. The trend around the world is to have the
Plant Variety Protection (PVP) as a separate office from the other IP offices, the reason being that it is
a sui generis (different, other, unique) technology patent. In Kenya, Tanzania and India (see table 2
below), they are in the Ministry of Agriculture.
Broad Institutional Mechanism of the Indian IPR Regime 18
Table 2.0
S/N IP Legislation Nodal Agency
1 Patent The Patent Act, 1970
Department of Industrial Policy &
2 Design The Design Act, 2000
Promotion(DIPP),
Ministry of Commerce and Industry
3 Trademark The Trade Marks Act, 1999
4 Geographical The Geographical
Indication Indications(Registration and
Protection) Act, 1999
5 Copyright The Copyright Act, 1957 Department of Secondary and
Higher Education, Ministry of
Human Resource Development
6 Integrated Circuit The Semiconductor Department of Information
Design Integrated Circuits Layout- Technology, Ministry of
Design Act, 2000. Communications and Information
Technology
7 Plant Varieties The Protection of Plant Department of Agriculture and
Varieties and Farmers Cooperation, Ministry of Agriculture
Rights Act, 2001
8 Undisclosed The Contract Act, 1872 Ministry of Law and Justice
Information Common(law) Law
9 Biodiversity The Biological Diversity Act, Ministry of Environment and Forests
2002
10 Traditional None The concerned ministries
Knowledge Ministry of Commerce and Industry,
Ministry of Human Resources
Development.
18
Kochar, Sudhir (2008). Institution and Capacity building for evolution of IPR regime in India: Protection of Plant
Varieties and Farmers Rights. Journal of Intellectual Property Rights. Vol. 13, January 2008, pp. 51-56
A Review of the Nigerian System of Intellectual Property
16

Meanwhile the Nigerian Natural Medicine Development Agency (NNMDA) supervised by the
Ministry of Science and Technology is said to be developing a legal framework for IP in Nigeria’s
Traditional Medicine Knowledge and Practice (TMKP).The Convention on Biodiversity(CBD) has IP
implications There are also emerging IP issues such as the Dormain name eg bbc.com, wsu.edu,
unn.ed, nabda.ng etc which are used to occupy a cyberspace with some being more recognizable
than others and are thus being protected from duplication. This goes to show that IP is very diverse
and there may be difficulty accommodating everything under one roof.
3. National Office for Technology Acquisition and Promotion
(NOTAP) – Experience In Intellectual Property
3.1 NOTAP–Formation and mandate
The Federal Government initiated bold reforms of Nigeria’s Science, Technology and
Innovation system and has assumed more direct and broader involvement in promotion at all levels
the awareness of the importance of Intellectual Property Rights to enhance creativity and boost
innovation in the fields of Information and Communication Technology (ICT), Space technology,
Agriculture and Biotechnology, Medical and Pharmaceuticals, Industrial Production and Engineering
Materials, Nuclear Energy, Sciences, Arts, Culture and literature, etc by establishing a conducive
environment as well as creating a favourable legal framework for the management, protection and
enforcement of Intellectual Property.
The National Office for Technology Acquisition and Promotion (NOTAP), a parastatal under
the aegis of the Federal Ministry of Science and Technology was established by Decree No. 70, 1979
as National Office of Industrial Property (NOIP). The name was changed to National Office for
Technology Acquisition and Promotion (NOTAP) in 1992 to ensure that the new name adequately
reflect its entire functions as contained in Decree No. 70 of 1979 and also to remove any ambiguity or
misconception that may arise in relation to the activities of the agency and that of the Intellectual
19
Property Registry .
NOTAP is mandated to carry out the following activities
• Registration and Monitoring of foreign technology transfer agreements.
• Promotion of Intellectual Property Rights and Innovation Systems.
• Provision of technology information to SMEs, researchers, inventors, etc. from the Patent
Information and Documentation Centre (PIDC) located in NOTAP, etc.
• Commercialization of indigenous R&D results and inventions
• Research Industry Linkages/Technology Database Development
• Extension of Technology Advisory Services to researchers and entrepreneurs
• Preparation of industrial Project Profiles
In boosting innovation NOTAP promotes Intellectual Property Rights (IPRs) using the Intellectual
Property System (IPS)- in particular, the patent system which has accumulated pool of technological
information to spur inventiveness and creativity. Intellectual property system guarantees the holder of
a patent or copyright, for example, the exclusive rights to the exploitation of the invention over a given
period of time (20 years) in the case of patents and ensures that no one else would copy, adopt or
use the innovation or invention without authorization from the holder, usually granted after payment of
a royalty or through outright purchase or under a specific agreement. Today, virtually all innovations
19
Araba Funke (Mrs.), Director, Technology Acquisition, Documentation and Information (TADI ):
Measures taken by the government to promote intellectual property system in Nigeria – Experience of the
National Office for Technology Acquisition and Promotion (NOTAP)a paper contribution. National Office for
Technology Acquisition & Promotion (NOTAP), Abuja, Nigeria, 2008.
A Review of the Nigerian System of Intellectual Property
17

are patented as soon as they are developed. Thus it is imperative that all research results and
inventions in Nigeria be patented. Furthermore, the intellectual property system encourages the
creation of public pool of information of new technologies by virtue of disclosure and thus has become
a tool for boosting innovation, as well as planning R&D and acquisition of technology.
Boosting innovation in Nigeria is thus intimately linked to:
• boosting patent awareness among researchers/inventors,
• increasing the number of patents secured, and
• active commercialization of patents to create industries, employment, wealth and enhanced
national competitiveness.
3.2. Establishment of Intellectual Property and Technology Transfer Offices
(IPTTOs)
NOTAP has established twenty-three (23) Intellectual Property and Technology Transfer
Offices (IPTTOs) in some Nigerian Universities, Research Institutes and Polytechnics with the aim of
ensuring that R&D activities are demand-driven, thereby facilitating their being exploited commercially
and transformed into a marketable product or system. Each IPTTO has been adequately equipped to
provide the requisite support structures for the research community where it is located and various
capacity building programmes were carried out in collaboration with World Intellectual Property
Organist ion (WIPO), Geneva.
Figure 1: Location of existing IPTTOs in Nigeria
3.3. Patent Information and Documentation Centre (PIDC)
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18

The Patent Information Documentation Centre (PIDC) is a computerized data bank in NOTAP
and it provides access to patent information available globally through internet. The Centre was
established with the technical assistance of World Intellectual Property Organization (WIPO), Geneva
and this facility is established to assist end–users in Nigeria to focus on new research activities that
are demand-driven and of market value.
In addition, end-users are assisted to source global technology information via the Internet.
The PIDC offers opportunities for the dissemination and distribution of information and performs
searches on the state of the art in various fields of technology and assists researchers with necessary
technical information to avoid re-inventing the wheel. More specifically, the following are the benefits
of information from patent documents:-
3.4. Functions of NOTAP on Patent
By virtue of the functions of NOTAP as embodied in its enabling Decree No. 70 of 1979, NOTAP has
sustained the promotion of patent culture (which had been abysmally low in Nigeria among
researchers, scientists, inventors, etc) and has demonstrated that patents are vital means of
promoting and developing indigenous technologies and innovations. Thus, local inventors and
researchers are assisted by NOTAP to patent their R&D results and inventions, with NOTAP paying
all fees charged at the Trademark and Patent Registry. In rendering this service, NOTAP adopts the
following procedure:
• provision of search of the invention in patent documents in NOTAP’s Patent Information and
Documentation Centre (PIDC) and other technological database to establish the novelty of
the invention which is one of the major criteria of patentability,
• assistance in appropriately completing the patent application forms,
assistance in the preparation of patent application forms,
• assistance in preparation of patent specifications consisting of title of invention abstract,
background of the invention, detailed description of the invention including drawings, claims,
• filling of the applications for patents and payment of the processing fees at the Trademark,
Patent and Design Registry. In case of application for foreign patent grant, the application is
submitted in line with the Patent Corporation Treaty (PCT). This activity strengthens the grant
of patents from the Nigerian Patent and Trademark Registry which does not conduct any
examination whatsoever before the grant of patents.
• assistance in scouting for licenses for the commercialization of the indigenous inventions,
• assistance in negotiation and drafting of the licensing agreement for the transfer of patented
indigenous technologies by the inventors to the entrepreneurs.
NOTAP offers these services principally on patents to clients that approach it. In this capacity NOTAP
operates partially as a patent agent.
3.5 Patent Applications Filed and Granted
NOTAP commenced processing the patent for public and private sectors in 1999 and a total
of 233 innovations/inventions have been submitted to NOTAP for processing. After evaluation, 86
applications were filed at the Patent Registry, and 61 were granted patent rights. One hundred and
forty seven (147) applications are pending because these applications have not met the prerequisites
for patenting. This has spurred many researchers and inventors to recognizing the importance of
patenting before publication disclosure. See Table I and Pie Chart for details on patent processed for
applicants. Table 3 below indicates the number of Patent Applications submitted to NOTAP from 1999
to 2008.
A Review of the Nigerian System of Intellectual Property
19

Table 3: Summary of R&D results/inventions submitted to NOTAP for assistance to file
application for Patent January,1999 –September, 2008
NUMBER OF
NUMBER OF PATENT
NUMBER OF
YEAR NUMBER OF
PATENT
APPLICATION
PATENT
INVENTIONS
APPLICATIO
PENDING (UNDER
APPLICATION
SUBMITTED
N GRANTED
EVALUATION/AWAITI
FILED BY THE
TO THE
/ APPROVED
NG RESPONSE
OFFICE AT
OFFICE
BY
FROM INVENTOR
PATENT
REGISTRY
REGISTRY
1999 2 1 1 1
2000 32 14 18 9
2001 14 8 6 3
2002 17 2 15 3
2003 8 0 8 0
2004 27 12 15 7
2005 41 14 27 18
2006 24 16 8 14
2007 28 13 15 4
2008 40 6 34 2
Sept.
TOTAL 233 86 147 61
Figure 2: Number of inventions submitted to the office between 1999 - Sept. 2008
1999
2000
2008 Sept.
2001
1999
2000
2001
2002
2007
2002 2003
2004
2005
2006
2003
2007
2008 Sept.
2006
2004
2005
A Review of the Nigerian System of Intellectual Property
20

Figure 3: Number of Patent applications granted/approved by the patent
office between 1999 - Sept. 2008.
2008 Sept. 1999
2007
2000
1999
2001
2000
2001
2006
2002
2002
2003
2004
2003
2005
2006
2007
2008 Sept.
2004
2005
3.6 Developing Intellectual Property Culture in Nigeria
The IP culture in Nigeria especially patent is very low as compared to other countries e.g.
Japan, China and South Korea. The evolution of patent applications and patent granted is analyzed
below. In Nigeria, the data collated in Table 4 below from 1998-2007 (span of 10years) shows that
out of a total of 4,823 patent applications filed, 4,257 patent applications were filed by foreign
applicants, while 566 were filed by local applicants at the Nigerian Registry for Trademark, Patent and
Industrial Design.
The non-conventional (local) patents filed was 566 representing 11.7% of the total
applications filed at the registry, while the conventional(foreign) patents filed was 4,257 representing
88.3% of the total patents filed. For patents granted, non-conventional (local) has 318 applications
granted representing 11.7% of the total granted, while the conventional (foreign) has 2,398
representing 88.3% of the total number of patents granted.
The trend of the patent applications filed in Nigeria as shown in Figures 3 and 4 also reveals
that more foreign patents (conventional) are filed in Nigeria than local patents compared with
countries like Japan, China and Korea where more local patents are filed than foreign patents. For
instance, in 2007, 565 foreign patents were filed in Nigeria while only 84 local patents were filed
representing 12.9% of the total number of patents filed in the country; whereas in Japan, China and
Korea in 2007, 333, 498, 153,060 and 128,701 local patent applications were filed representing
84.1%, 62.4% and 74.6% of the total patents filed in the countries respectively.
Table 4: Number of Patent applications filed and granted in Nigeria from 1998 – 2007
FOREIGN PATENTS
LOCAL PATENTS
(CONVENTIONAL)
(NON CONVENTIONAL)
YEARS
No. of Applications No. of No. of No. of
Filed Applications Applications Applications
Granted Filed Granted
1998 411 185 39 2
1999 439 312 5 19
2000 473 351 49 42
2001 476 142 34 13
2002 466 62 36 3
2003 450 179 55 15
2004 425 421 88 40
A Review of the Nigerian System of Intellectual Property
21

2005 297 316 81 64
2006 255 212 95 87
2007 565 218 84 33
Total 4257 2398 566 318
Source: Compiled by NOTAP from Trademarks, Patents and Industrial Design Office, Abuja, October
2008
The low turnout of patent in Nigeria is as a result of lack of IP culture in the tertiary and
research institutes’ environment and the society in its entirety. This low level of evolution of patent is
also a reflection of current level of technological development, using patent as one of the indices or
determinants of economic growth.
Figure 4 NIGERIA
EVOLUTION OF PATENT APPLICATIONS
(Domestic vs. Foreign)
700
NIGERIAN 649
NON-NIGERIAN
600
TOTAL
522 513
510 505
502
500
450 444
400
378
350
300
565
476
473
466
450
439
425
411
200
297
255
95
88 84
81
100
55
49
39 36
34
5
0
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007
YEAR OF SUBMISSION
Source: Compiled by NOTAP from Trademarks, Patents and Industrial Design Office, Abuja,
October 2008
A Review of the Nigerian System of Intellectual Property
22

NIGERIA
EVOLUTION OF GRANTED PATENTS
Figure 5 (Domestic vs. Foreign)
500
461
NIGERIAN
450
NON-NIGERIAN
TOTAL
400 393
380
350
331
300 299
251
250
421
200 194
187
351
316
312
155
150
218
212
87
100
185
179
64
142
65
42 40
50 33
19
62
15
13
3
2
0
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007
YEAR GRANTED
Source: Compiled by NOTAP from Trademarks, Patents and Industrial Design Office, Abuja, October
2008
3.7. Promotion of Incentives/Reward System
NOTAP is promoting a framework on Incentives and Reward-System for creators of
Intellectual Property in Tertiary and Research Institutions.
Empirical study of the Incentives and Reward System in Tertiary and Research Institutions in
industrialized and most developing countries like India, Brazil, South Korea, etc, shows that creators
of intellectual property receive from 33% to 50% net income of revenue generated by the institutions
due to commercial exploitation of intellectual property. The existence of such reward systems
encourages the creators to devote their time and energy to carry out research in demand/market-
oriented projects for the generation of revenue.
In the pursuit of this, an Intellectual Property Policy Guideline to assist University and
Research Institutes to develop Incentives/Reward System was published by NOTAP and forwarded to
all Universities, Polytechnics and Research Institutes in Nigeria.
4. The Place of IP in Nigeria’s R&D System
4.1. Agricultural research
4.1.1 Public Sector Investment in Agricultural Research Nigeria
The development of agriculture in Nigeria has, and is still benefiting mainly from public
investments; the private sector plays an insignificant role. However, the public goods investments
policy in agriculture is facing a bleak future for a number of reasons, principal amongst which are:
i). Increased emphasis on market mechanisms facing public funded organizations to respond to
broad economic opportunities;
ii) Tendency to limit freely, germplasm for National Agricultural Research; and
iii) Changes brought about by the introduction of intellectual property rights (IPR).
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The Nigeria Agricultural Research System (NARS) comprises the National Agricultural
Research Institute (NARIs), universities of agriculture and faculties of agriculture and veterinary
medicine in conventional universities, non-governmental organizations (NGOs), and the private
sector. The bulk of the research is, however, publicly funded and goods produced are public goods.
These goods, which are information, data, or products, are released into the public domain for
adoption and utilization by and for the benefit of all people of the nation. As a matter of fact, the
refusal of the NARIs for free assess to their research results is contradictory to their mandate and
mission. The Agricultural Research Council of Nigeria (ARCN) in the Ministry of Agriculture is
supervising 15 agricultural research institutes. Some agricultural research institutes are not placed in
the ministry of agriculture and fall outside the supervision of the Ministry of Agriculture 20 .
4.1.2. Changes in the Ownership of Research Results
Recent external developments like the integration of markets, growing activities of the private
sector and innovations in national and international legal and regulatory regimes are, however,
changing trends in research management and management of intellectual property in the developing
countries. These changes are occurring in response to global trends, each having the potential to
redefine how the national agricultural research system would provide public goods to meet the
national needs for crop and animal varieties. Management needs to ensure that all who use the
property respects ownership of intellectual property used by a research institution. It should also
ensure that organizations are in a position to identify, secure, manage and exploit the intellectual
property they generate.
4.1.3 Current Situation in Agricultural Research in Nigeria
In Nigeria as in many developing countries, no structure has been put in place for the
management of IP in agriculture particularly Plant Variety Protection (PVP), Animal Breeders Rights.
In April 2002, Nigeria held its first workshop to review the first draft of the Nigeria Intellectual Property
Laws titled “Fostering a New Intellectual Property Regime”. It was co-sponsored by the United States
Department of Commerce, Commercial Law Development Programme; the Federal Ministry of
Commerce (Trademarks, Patents and Design Registry); the Nigeria Copyright Commission; and the
National Office for Technology Acquisition and Promotion (NOTAP)-Federal Ministry of Science and
Technology- in a public/private partnership with the Nigeria Intellectual Property Bar. When this
document is put into law, it will form a basis to put in place regulatory framework to manage IP in the
Nigeria NARS. This is because the resulting draft IP bill has provision for Plant Variety Protection
(PVP) or Plant Breeders Right (PBR) as well as Farmers Right..
Currently, there are no institutional frameworks for agriculture related IPR issues nor any
office or persons responsible for assisting the researchers on issues of IP, access to adapted
technologies, technology transfer, or ways to protect their inventions. The researchers have been
functioning without institutional support needed to address these issues for their research. However, it
should be noted that the National Office for Technology Acquisition and Promotion (NOTAP) is
assisting researchers particularly on patents to register their inventions with the Trademarks, Patents
and Designs Registry free of charge as government measure to promote technological development.
It is also establishing Technology Transfer Offices (TTO) in universities and research institutes across
the country. But IP in agriculture require specialized tools and specialized approaches to handle.
Now is actually the beginning of a transition from periods when products and processes for
research resided in the public dormain. Nigeria and the rest of the developing countries are seeking
for appropriate IPR arrangements for owning and protecting IP and for the use of proprietary
technologies in their research so that the final products developed would have legal instruments to
support their dissemination to clients. Proprietary technology and materials are technologies and
20
Abubakar B. Y.(Prof); Executive Secretary, Agricultural Research Council of Nigeria(ARCN); Nigeria Agricultural
Research System (NARS): Prospects For Intellectual Property Promotion: A paper contribution, 2008
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materials that are privately owned, managed and protected through some sort of IPRs. The United
States Bayh Dole Act seeks to address this issue within the Universities and RIs in USA. Presently,
the CGIAR centres and some few larger national agricultural research organizations in the developing
countries address such institutional mechanisms, for example Brazil Research and Development
Agency EMBRAPA, Agency for Agricultural Research, and Development (AARD) in Indonesia and
Malaysia Agricultural Research and Development Institute (MARDI).
4.1.4. Central IP Management Body
Considering these challenges and the objectives of establishing the Agricultural Research Council
of Nigeria (ARCN), the Council has plans of setting up a central IP management body to be housed in
the Legal Unit of the Council. A committee on, “Establishment of effective IPRs policy and
management guidelines for Agricultural Research in Nigeria” has been set up and is already collecting
information. The central IP management body will have the following functions:
• Develop institutional or legal frameworks for related IPRs issues ;
• Educate research institutions on the importance of international collaboration and purchase of
proprietary technologies;
• Assist the researchers in issues of IP, access to adapted technologies, technology transfer
and ways of protecting their inventions;
• Initiate and promote negotiations needed for licensing proprietary assets at institutional level;
• Develop and introduce criteria for the management of information related to proprietary
technologies in the research institutions, that is confidentiality and timing of publications; and
• Introduce the use of IP management parameters during research project planning.
4.2. The Bayh Dole Act. (University and Small Business Patent Procedures Act) and IP
in Nigeria
This is a United States legislation dealing with intellectual property. However, many
developing countries are modeling their patent laws after this US law as part of the transition away
from public ownership of research results and thus making it very significant to Nigeria. Passed in
1980, the Bayh-Dole Act (Patent and Trademark Act Amendments of 1980) created a uniform patent
policy among the many federal agencies funding research. As a result of this law, universities retain
ownership to inventions made under federally funded research. In return, universities are expected to
file for patent protection and to ensure commercialization upon licensing. The royalties from such
ventures are shared with the inventors; a portion is provided to the University and department/college;
and the remainder is used to support the technology transfer process. The main purpose of the act is
to further development and commercialization.
4.3. Policy Linkage of Nigerian R & D Institutions
A knowledge of the linkage between the science, technology, research and related institutions
in formulating S & T policy can be harnessed to support the effort to reform the country’s IPR system
to meet our national aspirations and the demands of our bilateral partners. This is because of the
positive impact a functional IPRs system will have on R & D.
Since the colonial era Government of Nigeria has taken steps to establish research institutes in
different sectoral areas of Agriculture, Health, Environment and Industry. Similarly science based
facilities in the Universities were also engaged in scientific research activities. It became obvious that
science and technology –based research and development system in Nigeria could only make impact
on the national development if the R&D activities were coordinated. The first major and concrete step
taken by Government towards coordinating research efforts was the establishment of the Nigerian
Council for Science and Technology (NCST). The mandate of the NCST was:
• To determine priorities for scientific activities in the federation in relation to the economic and
social policies of the country and its international commitments:
• To ensure the application of the results of scientific activities to the development of
agriculture, industry and social welfare in the federation;
• To advise the Federal Government on a national science policy, including general planning
and assessment of the requisite financial resources:
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• To ensure cooperation and coordination between the various agencies involved in the
machinery for making the national science policy; and
• To promote public confidence in scientific expenditure and create an atmosphere conducive
to scientific activities.
The NCST through various stages eventually evolved to the present Federal Ministry of Science and
Technology. However, under the aegis of the Federal Ministry of Science and Technology a National
Council of Science and Technology (NCST) comprising the Minister of Science and Technology,
representatives of other Ministers connected with S& T and State Commissioners of Science and
Technology meets once a year to deliberate on national S&T policy issues.
In a similar effort aimed at R&D coordination, the government under the aegis of the Federal Ministry
of Science and Technology in 2008 established the National Research and Development
Coordinating Council (NRDCC) with a mandate of coordinating R&D policy. This council though still
very young has proposal for two organs: the technical committee which is made up of directors of
research institutes and the relevant directors in the various ministries. The other organ is the board of
the council which is made up of the Ministers of the various relevant ministries. While the technical
committee is to meet every month, the board is to meet every quarter.
The NCST and the NRDCC are important organs through which S&T policy issues including IPR
affecting R&D can be harmonized and addressed. They are therefore important instruments of
national technology policy.
4.4. National Biotechnology Development Agency (NABDA)
Biotechnology is a package of techniques that employ organisms, or parts of organisms to make
or modify products, improve plants and animals, or to develop microorganisms for specific
applications. The Nigerian government, convinced of the fact that biotechnology is a cutting-edge
technology that will drive the 21st century’s global food, health, industrial and environmental sectors,
took appropriate steps to ensure that Nigeria becomes a key global participant in the biotechnology
revolution for the benefit of all Nigerians. As a move to enhance coordination and give a boost to the
biotechnology research work in our universities and research institutes, the government took a major
step by putting the National Biotechnology Policy in place by April, 2001.This led to the establishment
of the National Biotechnology Development Agency in November of that year. The objectives of the
agency include amongst others:
• Develop appropriate legislation compatible with international regulations, so as to ensure
biosafety, in line with social and ethical considerations and to protect intellectual property,
industrial property and farmers’ rights.
• Maintain sustainable exploitation of bioresources for our food and agriculture, healthcare
delivery and industrial utilization
• Ensure that Nigeria become self reliant in the development and application of biotechnology-
based products and services.
In line with these objectives NABDA can take the necessary steps to support the enactment and
reform of the nations laws that will enhance the development of biotechnology including the nations
obligations to WTO TRIPS which made provisions for biotechnology products and processes, genetic
resources/bioresources exploitation for food, drugs and nutraceuticals as well as laws on micro-
organisms, plants and animals. Biochemistry, Microbiology, Molecular Biology and Bioinformatics are
essential tools of biotechnology.
4.5 OBD-Plus Technology- a Nigerian microbial invention
OBD-Plus, the microbial formula invented by Professor B.A. Oso, of Arati Environmental Ltd
Lagos, Nigeria (formerly of the University of Ibadan, Nigeria) has been shown to be a very effective
agent in the management of oil pollution, liquid and solid wastes. It bio-degrades crude oil and their
refined products as well as solid and liquid wastes at a fast rate.
Hence, it is a useful agent in the bio-remediation of polluted environment (land and water). Oil
polluted soil bio-remediated with OBD-Plus for example becomes more fertile than before. Professor
Gideon Okpokwasili of the University of Port Harcourt, Nigeria is another expert on bioremediation,
employing microorganisms. Such inventions are very significant in the discussion on whether or not to
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patent microorganisms in Nigeria as it shows that such inventions (local or foreign) may be common
and thus calling for an urgent need for a protection system to spur investment in R&D and
Commercialization.
4.6. Nigeria’s Draft National Biosafety Bill and the Cartagena Protocol
A related regulatory framework, Biosafety refers to efforts to reduce and eliminate the
potential risks resulting from modern biotechnology and its products including possible harm/effects
that might be done to the environment, biodiversity and human health. With the advent of modern
biotechnology, genetically modified organisms and other products, and their perceived adverse
impacts on the environment and human health, Nigeria joined the league of nations in taking
precautionary safety measures, by signing and ratifying Cartagena Protocol on Biosafety (CPB) of
year 2000. The vision of Nigeria’s Biosafety is to ensure that the practice, processes and procedures
of Modern Biotechnology are undertaken within the limits of a regulatory system, that guarantees its
safe use, protects Nigeria’s Biodiversity and provides minimum risk to human health and the
environment.The Draft Biosafety Bill prepared under the aegis of the Federal Ministry of Environment
and presented to the Federal Executive Council is undergoing passage at the National Assembly
as an Executive Bill.
4.7. National Varietal Release Committee and the National Agricultural Seed
Service (NSS)
The National Crop Varieties and Livestock Breeds Registration and Release Committee
Decree 33 of 1987 was promulgated to inject sanity into the system of naming, release and
registration of crop varieties and livestock breeds and consequently checkmate the seed industries.
The decree spelt out the responsibilities of members and functions of the National Varietal
Release Committee. The committee was charged with receiving the processing applications for the
registrations, naming and release of old and new crop varieties and livestock breeds: officially
releasing the list of superior crop varieties and livestock breeds recommended by the sub-committee
established for that purpose. Decree 33 was later complimented by the Seed Decree 72 of 1992. In a
meeting held on January 13, 2000, the committee noted the need for harmonization of the Decree 33
of 1987, establishing the National Crop Varieties and Livestock Breeds Registration and Release
Committee and Decree 72 of 1992 establishing the National Agricultural Seed Service. While Decree
72 focused on seed only, Decree 33 of 1987 on the other hand had in addition to provisions on crop
varieties release and registration the provision on livestock breeds release and registration. On the
last count, since the inauguration of the National Committee in 1989 about 361 crop varieties have
been officially registered and released. These were done retroactively and actively. However, not
many achievements have been recorded in the area of livestock breeds. Shika Brown from National
Animal Production Research Institute (NAPRI), which was a product of about 15 years of research,
remains the only livestock breed to be officially registered and released. The release procedure is as
follows:
• The release process of 2 – 3 years.
• Adequate seed quantity must be available with the breeder nominating the crop variety for
multi-location testing.
• The breeder or the Institution concerned must submit the appropriate name for the new
variety which must be simple, brief and pronounceable.
• Data from 2 years multi-location and OFAR (On Farm Adaptive Research) must be available
before the nomination of crop variety.
• 1 kg (or adequate quantity in case of vegetables) of the newly released varieties must be sent
to the National Centre For Genetic Resources and Biotechnology (NACGRAB) to be kept in
the Gene Bank.
• National Seed Service (N.S.S). is mandated to produce Foundation Seed after signing an
M.O.U. with the concerned N.A.R.I’s.
From the above procedure it can be seen that Plant Variety Protection (PVP), Animal Breeders
Rights and Farmers Rights does not form part of the above process requiring that another mechanism
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is in need. This requires that the Plant Variety Release Act may be modified to include Plant Variety
Protection provisions or a new PVP law should be put in place.
4.8. Nigeria Natural Medicine Agency
The Nigerian Natural Medicine Development Agency (NNMDA) is working to develop a legal
framework for IPR regime to enable the exploitation of our indigenous Traditional Medicine
Knowledge (TMK). This will compliment the effort towards development and promotion of the nation’s
biodiversity and bioresources. NOTAP is supporting NNMDA in this direction. The two agencies
(which are in the Ministry of Science and Technology), with the support of World Intellectual Property
Organization(WIPO), the International Association for the Promotion of Traditional Medicine
(PROMETRA), Dakar, Senegal, the African Union Scientific, Technical and Research
Commission(AU-STRC) and other local organizations jointly organized a workshop in 2005 with the
theme “Appropriate Intellectual Property Rights(IPR) Regime – a necessity for Maximizing the
potentials of Traditional Medicine for Improved Healthcare Delivery, Economic Growth and
Development.” A draft law on Nigeria’s Traditional Medicine Knowledge is being put in place by the
NNMDA.
4.9. Space and Information Technology Strategies
As part of government’s effort to reform the Science, Technology and Innovation sector, attention
was also directed at building capacity in Space Technology and Information Technology. Thus, the
National Space Research and Development Agency (NASRDA) was established. In realization of
one of the objectives for which it was established NASRDA successfully launched the Nigerian
Satellite (Nigeria Sat 1) in November 2003 which is currently yielding data for local and international
use on weather and environment. Nigeria with technical support from China also successfully
launched the first African Communication Satellite, (NIGCOMSAT), in the first quarter of 2007 meant
to meet the communication needs of our nation. Furthermore, for the purpose of managing the
products of NIGCOMSAT, two companies, Nigerian Communications Satellite Ltd and the Galaxy
Backbone Plc have been registered and are now operating. Both companies are together expected
to coordinate to manage the National Information and Communication Technology Infrastructure
Backbone (NICTIB).
Also established by government is the National Information Technology Development Agency
(NITDA) as the clearing house for IT projects in the public sector. The Agency is committed to the
drive to bring government and its services closer to the people through IT. Entrusted with the
implementation of the National IT policy, which seeks to make Nigeria an IT capable country in no
distant future, NITDA has been mandated to supervise the management of the country code Top
Level Domain as a national resource. The operations of NASRDA and NITDA have wide IP
implications including the emerging IP issues like dormain names: for instance bbc.com, wsu.edu,
nabda.ng. These names are being protected. Just as postal addresses indicate physical locations,
dormain names indicate unique locations in the “cyberspace”. Some of the names assume celebrity
persons, places and institutions with greater need to be protected. Various entities control the
registration, renewal and transfer of domain names, depending on the final portion of any
alphanumeric address. Addresses ending with country codes “fr” or uk are subject to laws of France
and the UK respectively. Those ending with “com” and a few other terms have a global reach. They
are governed by rules established by the Internet Corporation for Assigned Names and Numbers
21
(ICANN), under agreement with the US Department of Commerce . Nigeria’s domain name is .ng
and NITDA has been mandated to supervise it. NITDA should also explore the possibility of
developing an IP system for Semiconductor Integrated Circuits Layout-Design for Nigeria.
“The United States, Japan, and many EU countries protect the topography of semiconductor
chips and integrated circuits under sui generis laws, some of whose aspects are borrowed from patent
21
Field Thomas G. What is Intellectual Property: file://E:\\IPR\\Focus on Intellectual Property,
http://www.piercelaw.edu/tfield/tgf.htm.,19th March, 2007
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