Presentaion made at Saviribai Phule Univeristy

1. R. Muralidharan
Advocate, Law Lecturer
Patent & Trademark Attorney
Plant Varieties Protection-
Global and National Trends
10/17/2017 1

2. Manu Associates,
143/3 8th Main,14th Cross,
Royal fort Apartments
Malleswaram.
Bangalore.
R. Muralidharan
Advocate, Patent Agent
Law Lecturer, Mediator
Mobile:-0-94482 47549
mailto: muralimanu@gmail.com/
advrmuralidharan@gmail.com
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3. 25-27th March 2017.
10/17/2017
Protection of Plant Varieties and Farmers’ Rights
3

4. Agricultural Scenario- Indian Vs. Global
Indian
• About 70%of the rural
households and 8% of
urban households are still
principally dependent on
agriculture for
employment, contributing
to about 18% of GDP.
USA
• Just 2% of the
United States
population
cultivates about
2.5 times the
land cultivated
in India.
This observable difference is due to methods of
cultivation, protection given to the farmers, investment
in research and development. 10/17/2017 4

5. WTO TRIPS Agreement
Provide
patent
protection
Choose “sue
generis” system
of protection.
Provide patent
protection
contemplated
under UPOV
Convention.
WTO TRIPS Agreement establishes “International Minimum
Standard” in the protection of Intellectual Property & obliges all
countries to choose one of three models while protecting plant
varieties.
India had chosen “sue generis” system of protection and
enacted The Protection Of Plant Varieties And Farmers’
Rights Act, 2001
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6. Indian Position
Under section 3 of the Indian Patent Act the following inventions are not
patentable.
Sec. 3(b)An invention
which causes serious
prejudice to human,
animal or plant life or
environment.
Sec. 3(h) A method of
agriculture or
horticulture.
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Sec. 3(i) any process for the medicinal, surgical, curative,
prophylactic 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.
6

7. Indian Position…contd
Prior to 1st Jan 2005 new crop protection chemicals
(insecticide, pesticide), new types of plant specific fertilizers
or any substance manufactured by chemical reaction was not
patentable. Now after 1.1.2005, they are patentable.
Even prior to 2005, new agricultural and farming
equipments were patentable.
Eg: Paddy transplantation machine, coconut de-husking
device.
Improved Spindles to retrieve silk yarn from cocoon.
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8. 10/17/2017
Case Study
Speaking Roses International Inc.,
Vs
Controller General of Patents & Another (Judgement of Bombay
High Court dated 13th February of 2006 in Miscellaneous
Petition 13 of 2006)
Sec. 3(j) Plants or animals in whole or in any part thereof other
than micro organisms, but including seeds, varieties and species
essentially biological process for production and propagation of
plants or animals. 8

9. 10/17/2017
Case study:-…contd
The Applicant filed a patent application through the PCT
route claiming an invention for a method of providing an
image over organic product and the product having
thereon an image produced by the said method. The
Patent Office held the view that the claims fall under the
mischief of Section 3(j) that prohibits the Patentability of
plants or any part there of.
Murali 9

10. 10/17/2017
Speaking Roses
10

11. 10/17/2017
Seed
Membrane
Fertilizer + Pesticide
Seed in Fertliser Capsule
11

12. 10/17/2017
Red Dove Case ..
12

13. What is a plant patent?
A plant patent is granted by the US Patent and
Trademark Office to a plant breeder who has invented or
discovered and asexually reproduced a distinct and new
variety of plant, other than a plant found in an
uncultivated state (naturally occurring). The grant,
which lasts for 20 years from the date of filing the
application, protects the breeder’s right to exclude others
from asexually reproducing, selling, or using the plant.
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14. What types of plants are Patented?
•A living plant organism which expresses a set of characteristics
determined by its single, genetic makeup or genotype, which can be
duplicated through asexual reproduction, but which cannot
otherwise be "made" or "manufactured."
•Spores, mutants, hybrids, and transformed plants are
comprehended; sports or mutants may be spontaneous or induced.
Hybrids may be natural, from a planned breeding program, or
somatic in source.
•Algae and macro fungi are regarded as plants, but bacteria are not.
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15. 10/17/2017 15

16. PPVFRA, 2001
Researcher’s rights
Farmer’s Rights
Breeder’s Rights
Entitled for registration and other protection who has bred or
developed a new variety.
The use of a protected variety by any person as an
initial source of variety for the purpose of creating
other varieties conducting experiments or research.
Right to produce, sell, market, distribute,
import/export seeds of the protected variety.
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17. What is a Plant Variety?
“Variety” means a plant grouping within a single botanical
taxon of the lowest known rank,
i. Defined by the expression of the characteristics
resulting from a given genotype of that plant grouping;
ii. Distinguished from any other plant grouping by
expression of at least one of the said characteristics;
iii.Considered as a unit with regard to its suitability for
being propagated and remains unchanged after such
propagation;
iv.Includes propagating material of such variety, extant
variety, transgenic variety, farmer’s variety and
essentially derived variety.
Kingdom
Phylum
Division
Class
Order
Family
Genus
Species
Variety
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18. Varieties that can be protected
[Sec. 2(i), 2(j), 2 (za), 14, 15]
Novel Varieties
Commercially new/Plant breeder’s varieties
Extant Varieties
Varieties released and notified under the Seeds Act, 1966; also includes
farmer’s varieties and other varieties of common knowledge
Farmer’s Varieties
Varieties evolved by the farmer’s involvement
Essentially Derived Varieties (EDV)
A variety that is similar to an original variety except for one or few
distinguishable characteristics
Transgenic Varieties
A variety developed by employing genetic engineering techniques
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19. Varieties that are
registerable
Essentially
Derived
Variety
Extant
Variety
Farmer’s
Variety
New
Variety
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20. Essential requirements for Plant protection
Novelty (Not essential for extant varieties, including farmer’s varieties
and other varieties of common knowledge)
Variety was not placed for sale for a period exceeding 12 months on
the date of application
Distinctiveness
Must be clearly distinguishable for at least one essential character
from any other variety whose existence is a matter of common
knowledge in any country at the time of filing the application
Stability
Stable when all essential characters remain unchanged after repeated
propagation or a specified life cycle of propagation.
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21. The "Honey Heart" Cherry Tree 1851,
The Honey Heart Cherry Tree is also
called Sparhawk's Honey, and it was
formerly called Roger's Pale Red. The
Honey Heart is doubtless a native variety,
and probably originated in this vicinity
some sixty years ago. Mr. Samuel Hyde,
an aged gentleman, of Newton (Mass);
first saw it in that town, and he
propagated it in his nursery, from the
original tree.
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22. 10/17/2017 22

23. 10/17/2017 23

24. Varieties not granted protection [Sec. 29]
The varieties whose commercial exploitation
• May affect protection of Human, animal and plant
life and health
• Public order or public morality.
• May cause serious prejudice to the environment.
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25. The varieties whose genus/species is not notified in the
Official Gazette at the time of filing application
• Not applicable for extant and farmer’s varieties.
The varieties which involve any technology that is injurious
to life and health of human beings, animals and plants
• Include GURT(Genetic Use Restriction
Technology)/terminator technology
Varieties not granted protection [Sec. 29]
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26. Process of Registration
Submission of Application Form + Technical Questionnaire to PPV & FR Authority
Initial Scrutiny Receipt/Acknowledgement
Acceptance after validation of information from database
Publication in Plant Variety Journal
Invitation of objections (within 90 days)
Extant Variety
Issue of certificate of registration
New Variety
Conduct DUS test ( 2 years at 2 locations
Passed NDUS test
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27. People who can apply for protection
Any person claiming to be the breeder of the variety.
Any successor of the breeder of the variety.
Any person being the assignee of the breeder of the
variety.
Any farmer or group of farmers or community of farmers
claiming to be the breeder of the variety.
Any person authorized in the prescribed manner by the
persons mentioned above.
Any university or publicly funded agricultural
institutions claiming to be the breeder of the variety.
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28. Rights of the Owner of the Variety
Sec.28
The Owner
of the
Protected
Variety has
the Right to
Sell the
Variety
Market
the
Variety
Distribute
the Variety
Import
the
Variety
Export
the
Variety
Produce
the
Protecte
d Variety
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29. Crops covered under the PPVFRA
First Phase: May 2007
•Cereals: Rice, Wheat, Maize, Sorghum, Pearl millet
•Legumes: Chickpea, Moong , Urad , Rajmas, Lentil,
Second Phase: April 2008
•Fiber Crops: Cotton (Tetraploid and Diploid) and Jute
Third Phase: October 2009
• Sugarcane, Ginger, turmeric
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30. Other Crops in Pipeline
Vegetables: Potato, Garlic, Onion, tomato, Brinjal/Egg Plant,
Cabbage, Cauliflower, Okra/Lady’s Finger
Oilseeds: Indian Mustard, Rapeseed, Gobhi Sarson,
Groundnut, Castor, Linseed, Sesame, Sunflower, Soybean
Spices: Black Pepper, Small Cardmom
Fruits: Mango
Crops covered under the PPVFRA
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31. 10/17/2017
Other forms of plant protection!!!
New plants or series of plants may be eligible for Utility Patent protection
either instead of, or in addition to a Plant Patent. Utility Patents are
generally more appropriate for protecting the results of advanced
technical plant breeding where novel common characteristics have been
developed and which form an entirely new class of material.
Outside the US, new plant varieties are protected by Plant Breeders
Rights.
Trademarks are not intended to be used for prohibiting the propagation of
a plant variety.
31

32. 10/17/2017
Breeder be represented by an Attorney?
USPTO recommends that all patent applicants be represented by a
registered Patent Attorney or Patent Agent. However, USPTO is
required to allow and assist independent inventors (breeders or
discoverers) to prosecute their own (“pro se”) application if
sufficient competency is demonstrated.
If the inventor transfers his or her entire rights in the patent or patent
application (an assignment) then that assignee may proceed to
engage a patent practitioner or to prosecute the application pro se.
32

33. 10/17/2017
What is PPAF?
PPAF is a term used by our industry to put others on notice that a
variety is “Plant Patent Applied For.” It is equivalent to the term
“Patent Pending”.
The purpose of giving notice in this way is to forewarn others that a
patent application is in process and, upon issuance, the plant
concerned becomes instantly subject to the patent holder’s right to
exclude all non-permitted activity. Thus, growers and propagators will
often accept a license in order to be “grandfathered in” to the expected
issue of the plant patent.
It is a Federal offence knowingly and erroneously to hold out a plant
variety as Pending or PPAF. 33

34. Term of Protection
For Trees and
Vines- 18 years
For Other crops-
15 years
10/17/2017 34

35. Procedural aspect of filing
Application Form
Form I – New Variety, Extant
Variety and Farmer’s Variety
Form II – Essentially
Derived Variety
Technical Questionnaire
attached with Form I and
Form II
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36. Requirements for filing form?
Denomination
Affidavit – No Terminator Technology
Complete Passport Data
Characteristics for Novelty, Distinctiveness, Uniformity
and stability
Declaration that genetic material used for breeding of
the variety has been lawfully acquired
Disclosure of use of genetic material conserved by any
tribal or rural families
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37. Where to file the application???
Registrar, Protection of Plant Variety & Farmers Right
Authority, Govt. of India, Ministry of Agriculture,
NASC Complex, DPS Marg, Opposite Todapur
Village, New Delhi
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38. What is the future of Plant Patenting?
In recent years, the US and much of the world has experienced a
sharp increase in the number of patented plants.
In response to the growing number of plant patent applications, the
USPTO has begun to scrutinize applications more closely. The
number of applications is increasing while the number of Patent
Grants awarded is decreasing. Simply put, as more plant breeders
attempt to protect their new cultivars, the USPTO is forced to discern
the true validity of the claim that each “new” cultivar is in fact
different from its predecessor.
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39. Statistical graph that illustrates the
above point (data from the USPTO):
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40. How to create awareness???
Organization of Farmer’s Camp
Awareness on PPV&FR Act
Awareness on Farmer’s Rights
Benefits of Registration
Constitution of registered farmers organization
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