08 plant varieties

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08 plant varieties

  1. 1. © Brain League IP Services Private Limited - 2011 1 PLANT VARIETIES he objective of the plant variety protection law is to promote development of new plant varieties. It provides protection in the form of exclusive rights over new plant varieties for a limited period of time to plant breeders in order to encourage them to develop new varieties through research. The law also protects farmers for conserving, improving and making the plant genetic resources available for development of new varieties of plants. Variety1 is defined by the Indian Plant Varieties AND Farmers' Rights Act as a plant grouping within a single botanical taxon of the lowest known rank, which can be i. defined by the expression of the characteristics resulting from a given genotype of that plant grouping; ii. distinguished from any other plant grouping by expression of at least one of the said characteristics; and iii. considered as a unit with regard to its suitability for being propagated. Requirements To get protection, a plant variety should satisfy all of the following requirements. Novel A plant variety can be protected only if it is novel. A variety is considered to be novel if the propagating or harvested material of such variety has not been sold or disposed in any other manner for more than one year within India or four years in any other country before the date of application for registration. In case of trees or vines sold or disposed in any other country the grace period allowed is six years. However, if the variety is sold or disposed for trial or experiment, the aforementioned deadlines would not negate novelty of the variety. Furthermore, novelty of a variety would not be negated if the plant variety becomes part of common knowledge through means other than by sale or disposition by the breeder. 1 The Protection of Plant Varities and Farmers’ Rights Act, 2001, Section 2 (za) T
  2. 2. © Brain League IP Services Private Limited - 2011 2 Distinct The second requirement for plant variety protection is that the variety should be distinct. A variety is said to be distinct, if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application for registration. A variety is considered to be common knowledge if the plant variety has been registered in any other country. It is considered to be common knowledge from the date on which the application for the variety is filed. Uniform A plant variety is protectable only if it is uniform. A variety is said to be uniform if its essential characteristics remain unchanged with reference to features of its propagation. Stable In order to get plant variety protection, the variety should be stable. A plant variety is said to be stable if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle. Denomination Every breeder should give a denomination to a new plant variety in order to secure protection. A denomination is not valid if i. it is not capable of identifying the variety; or ii. it consists solely of figures; or iii. it is liable to mislead or to cause confusion concerning the characteristics or the identity of breeder of such variety; or iv. it is not different from every denomination which designates a variety of the same botanical species or of a closely related species; or v. it is likely to deceive the public or cause confusion in the public regarding the identity of such variety; or vi. it is likely to hurt the religious sentiments respectively of any class or section of the citizens of India; or
  3. 3. © Brain League IP Services Private Limited - 2011 3 vii. it is prohibited for use as a name or emblem for any of the purposes mentioned in Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950; or viii. it is comprised of solely or partly of geographical name. Term2 The term of protection for plant varieties shall be as follows: i. 18 years from the date of registration for trees and vines; ii. 15 years from the date of notification by the central government under the Seeds Act for extant varieties; and iii. 15 years from the date of registration for all other varieties. The initial protection after registration lasts for 9 years for trees and vines and 6 years for other varieties. To maintain registration for the full period, the owner of the plant variety has to file for renewal of registration. Process of Registration A plant variety may be registered by making an application in a prescribed manner before the Registrar of plant varieties3 . The applicant should give a denomination to the variety while filing the application in accordance with rules and regulations prescribed by the registrar. On receiving the application, the registrar will examine and accept the application with or without conditions. The application will then be advertised and made open for opposition. If any person opposes the registration of the application, the examiner will require the applicant to respond and will if required give a hearing to resolve the issue. Once the application passes through the opposition phase, the plant variety will be registered. The examiner may ask for amendment of the application based on the examination or opposition. 2 The Protection of Plant Varities and Farmers’ Act, 2001 Section 24 (6) 3 The Protection of Plant Varities and Farmers Rights Act, 2001, Section 14
  4. 4. © Brain League IP Services Private Limited - 2011 4 Rights Once a plant variety is registered, a breeder gets the following rights: 1. Right to produce; 2. Right to sell; 3. Right to market; 4. Right to distribute; and 5. Right to Import or Export the plant variety No person can exercise any of the aforementioned rights without the permission of the owner of the plant variety. Infringement A person is said to infringe the plant variety rights of a breeder if he exercises the rights of the breeder without permission or authorization from the breeder or his agent or licensee4 . A person is also liable for infringement of plant variety rights if he uses, sells, exports, imports or produces any other variety giving such variety, the denomination identical with or deceptively similar to the denomination of the plant variety in such manner as to cause confusion in the mind of general people in identifying such variety5 . In case of infringement, the liability of the infringer may be civil and/or criminal. In an infringement suit, the plant breeder may ask the court for injunction and damages or share of profits6 . Suggested Further Reading Plant Varities Bird’s eye view on Plant variety 4 The Protection of Plant Varities and Farmers Rights Act 2001, Section 64 (a) 5 The Protection of Plant Varities Farmers’ Rights Act, 2001 , Section 64 (b) 6 The Protection of Plant Varities Farmers’ Rights Act, 2001, Section 66.

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