Tracing the Background to the Protection of Plant Variety and Farmers Rights Act (PPVFRA) – A Primer

Protection of Plant Variety and Farmers Rights Act (PPVFRA), 2001 is an Act which is a sui generis system to recognise and protect the rights of both commercial plant breeders and farmers in respect of their contribution made in conserving, improving and making available plant genetic resources for development of new plant varieties. This Act was passed by the Indian legislation to comply with the TRIPS obligations on the part of a Member to provide protection to new plant variety either through patent or an effective sui generis system or a combination of these two systems.

*Image is for representation purpose only

What is TRIPS:

The TRIPs (Trade Related Intellectual Property) regime has emerged as the basic framework for ensuring intellectual property rights across the world. India had joined the WTO (World Trade Organization) on January 01, 1995. One of the pre-conditions of joining the WTO is that every member country who are member of WTO should include TRIPs provisions in their domestic intellectual property legislations. For India, the WTO’s TRIPs agreement became binding from 2005 onwards as the country has got a ten-year transition period (1995-2005) to make the domestic legislation compatible with TRIPs.

Tracing the Background:

The TRIPS, which became binding on India in 2005, included Article 27 which states that –

“Members may also exclude from patentability:…

(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.”

India was thus, caught between three possible choices –

a) it could amend the existing Patents Act, which dictated under Section 3(j), that “plants and animals in or whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals”; or

b) it could institute a sui generis legal system that provides for plant breeder’s or plant variety rights, essentially allowing the government to design its own protection mechanism to safeguard plant breeders’ rights ; or

c) it could combine both of these legal systems offer plant varieties is a double protection mechanism.

Amending the Patents Act, 1970

The Indian Patents statute was drafted with the intention of restricting private interests in a manner has to balance it with the essential survival needs of the public.

There are several reasons that conceivably appeared to dissuade the country from merely amending the patents act to allow patents to be granted for ‘inventions’ comprising plant varieties or seeds –

1. Food security : A non-negotiable right

Food security is a sine-qua-non to living a stable and healthy life, thus bringing into perspective the issue associated with allowing seed companies to monopolize the use of indigenous seeds and plant varieties by granting them patents. India has been, for the longest time, recognized as being an agricultural economy and farmers have for generations sustained themselves in this sector by relying on the free flow of information amongst the country’s traditional farming communities. To snatch from them the right to control the use, growth and profits emanating from the use and production of their seeds would represent a drastic step towards shifting power from the hands of local farmers to commercial breeders. This would amount to an act that is likely to primarily benefit only the latter and consequently hurt the productivity of the agricultural sector in itself by taking away from the farmers the very incentive for investing their blood, sweat, tears and finances in ploughing and sowing their land. The granting of patents to private seed corporations would result in the following implications –

a) exploitation of farmers for the generation of private profit, without granting the latter the right to an equitable share of the benefits,

a) denying them the right to share, sell or exchange seeds derived from the harvested crops ; and

b) possibly raising the prices of the seeds on account of the company’s market monopoly

Patents thus threaten the accessibility of small farmers and plant breeders to seeds and plants, and will result in big seed companies entering the country and acquiring plant patents to dominate the plant’s genetic resources for 20 years, and to the exclusion of all others. Safeguarding food security is primal, and to effectively further this cause, the means to effect this must not fall in the hands of those with commercial motives.

Interestingly, a Frontline article argues that the TRIPS Agreement is by and large reflective of the existing agricultural situation in countries forming part of the Organisation for Economic Co-operation and Development (OECD). It states that –

“In Europe and in North America, the principle of free access to information has been progressively restricted following pressure from the private sector for the establishment of a system of private property rights. This has been concomitant with the decline of agriculture as a subsistence activity and the overall commercialisation of the primary sector. In India, socio-economic conditions differ dramatically……The primary sector still constitutes more than a quarter of the gross domestic product (GDP) and employs about two-thirds of the working population. Further, agriculture is still mainly a subsistence activity”¹. Thus, while it does impose a burden seemingly unfair on countries such as India despite the stark difference in its prevailing socio-economic conditions – as far as plant varieties is concerned, it gives countries the liberty to adopt one among three forms of protection mechanisms that allows some significant degree of flexibility.

2. Difficulties with patent eligibility requirements

For an applicant to acquire a patent under the Indian Patent regime, 3 eligibility requirements must necessarily be fulfilled,

• Novelty;
• Inventive Step, and
• Non-Obviousness.

The threshold for establishing the above-mentioned factors is extremely high – it is likely to be enormously difficult for a plant breeder or farmer to be able to easily obtain a patent because of the difficulties associated with establishing that the genetic modification of one or more existing varieties and the creation of the resultant new variety is novel, non-obvious and constitutes an inventive step.

It is important to note that farmers are traditionally known to sow the seeds of more than a single type of plant variety, so that in the event of an unforeseen pest infestation or climate change, while a particular variety may be negatively affected, others might still be able to withstand them. This si what motivates farmers to develop new hybrid varieties of crops that have better resistance towards certain vulnerabilities.

However, if acquiring IP protection for their particular form of plant variety entails the fulfillment of a barrage of high-threshold factors, farmers are likely not to be motivated to assist pro-farmer organizations to produce new genetically engineered varieties because of the uncertainty of actually acquiring protection, inadvertently putting the country’s food security in jeopardy.

3. High costs

The application, registration and prosecution of patents is widely associated with being an extremely expensive process, involving high amounts to be expended to so that frivoulous applications are dissuaded. However, if plant varieties were to be included amongst patentable subject matter, this basis would backfire –

a) farmers, despite being the original creators of a particular variety, often live in below-poverty conditions as a matter of fact, and are generally too financially incapacitated to afford the high fees

b) commercial seed companies will exploit traditional varieties grown and sown by farmers to develop a new genetically engineered variety that they will in turn use to lure farmers by marketing its resistant characteristics, and then sell them at prices that are difficult for farmers to afford. Additionally, because the companies often deliberately genetically alter the genes of the seed so as to prevent the crop’s seeds from being sown in the next season, farmers will be compelled to re-purchase them every year from the seed companies by paying a license fee – as a result of which they are at the absolute mercy of the seed companies.

This is in complete contrast to the Indian statute for plant varieties, which allows farmers (exclusively ; and not plant breeders) to file applications for recognition of new plant variteties developed by them, at absolutely no cost – allowing them to benefit off of their creation.

Instituting a sui generis system

While the general meaning of the Latin term “sui generis” is ‘unique’, the TRIPS Agreement, while calling for member countries to either provide for protection of plant varieties under the patents regime, or establish an “effective sui generis” system, fails to clearly lay down the meaning of the term, possibly implying that member countries have the discretion to design their own best version (in accordance with the TRIPS provisions) of a legal mechanism that fulfills the gap in PV protection.

The UPOV – (International Union for the Protection of New Varieties of Plants)

The apparent inappropriateness of the patents regime to protect plant varieties was recognized not only by India, but also countries around the world². Thereby, in order to further the rights of breeders of new plant varieties, the International Convention for the Protection of New Varieties of Plants established the International Union for the Protection of New Varieties of Plants (UPOV) to further what came to be identified as Plant Breeder’s Rights (PBR) also commonly referred to as Plant Variety Rights (PVR).

Under the rules established by the UPOV, for a breeder to be granted PBR, the new variety must necessarily fulfill four main factors –

a) it must be novel;

b) it must be distinct;

c) it must possess homogeneity; and

d) the traits must remain stable.

The UPOV system, while superficially appears to protect farmer’s rights from being usurped by private seed companies, inadvertently does just that. Several provisions of the UPOV exemplify the fact that it remains unsuitable for a large agrarian developing economy like India, some of which have been enumerated below-

1. No benefit sharing : The UPOV does not permit benefit sharing between plant breeders and the farmers, creating open opportunity for their exploitation.

2. Restriction on saving seeds : Indian farmers have historically relied on seeds of the present harvested crop to sow crops to be harvested in the following season. The UPOV disallows this practice to a large extent, and currently only grants a provisional right to save seeds.

3. No recognition of prior knowledge : The UPOV does not take cognizance of any traditional knowledge that farmers possess as natives, and thus deny them any and all rights that flow from such knowledge.

4. Obstruction to public research : The UPOV appears to have been designed to favour commercial breeders, and looks to protect their interests over and above the country’s farming communities. Because a large portion of research pertaining to genetic engineering of plants is carried out by public research institutions, the privatization of rights to breeding of plant varieties is likely to have had a significant fallout in this arena as well.

India is not a member of this organization, and chose to instead set up its own regime that balances the oft-ignored interests of farmers as well as those of commercial plant breeders.

The Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act)

As a signatory to the TRIPS Agreement, India was forced to comply with Article 27.3 by either amending Section 2(j) of its patent system (which states that “plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals..” are not patentable) to allow the patenting of plants, or by instituting a national legislation that protects plant varieties in line with the goals laid down in the TRIPS Agreement.

Its objectives are –

(i) to stimulate investments for research and development both in the public and the private sectors for the developments of new plant varieties by ensuring appropriate returns on such investments;

(ii) to facilitate the growth of the seed industry in the country through domestic and foreign investment which will ensure the availability of high quality seeds and planting material to Indian farmers; and

(iii) to recognize the role of farmers as cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro biodiversity by rewarding them for their contribution through benefit sharing and protecting the traditional right of the farmers.

The Act recognizes three plant varieties –

1. Extant Variety :

An “Extant Variety” means a variety, which is–

(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 the public domain.

2. Farmers Variety :

“Farmers’ Variety” means a variety which-

(i) has been traditionally cultivated and evolved by the farmers in their fields; or
(ii) is a wild relative or land race of a variety about which the farmers possess the common knowledge;
where farmer means any person who (i) cultivates crops by cultivating the land himself; or (ii) cultivates crop by directly supervising the cultivation of land through any other person; or (iii) conserves and preserves, severely 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.

3. Essentially Derived Variety :

“Essentially Derived Variety” is a variety which is predominantly derived from another variety (protected or otherwise) and conforms to the initial variety in all aspects except for the differences which result from the act of derivation, and yet is clearly distinguishable from such initial variety

PRIMARY FEATURES OF THE PLANT VARIETIES ACT

1. Extent of Protection : The scope of the protection that is offered to plants varieties under this Act includes all categories except micro-organisms, with 18 years for trees and vines ; and 15 years for all other categories. Rights may be renewed after a period of 6 years. The factors to be established in order to establish that a particular plant variety is new requires the fulfillment of the same four factors as required under the UPOV.

2. Farmers’ rights :Under the Act –

a) Farmers who have bred or developed a new variety will be entitled to registration and protection similar to that of a plant breeder under the Act

b) Farmers have the right to save, use, sow, re-sow exchange, share or sell his farm produce including the seed of a protected plant variety.

3. Researcher’s rights : Under the Act –

a)any person may use any variety registered in the Act for conducting experiment or research

b) any person may use a variety as an initial source of variety for creating other varieties

4. Communities’ rights : The Act recognizes the right of any person, group of persons (whether actively engaged in farming or not) or any governmental or non-governmental organisation to, on behalf of any village or local community in India to file , file a claim attributable to the contribution of the people of that village or local community, as the case may be, in the evolution of any variety for the purpose of staking a claim on behalf of such village or local community.
In doing so, the Act acknowledges the role of the community in preserving plant genetic resources.

The author will be back with another detailed report representing a case study on Bt Cotton, as an instance of a genetically modified crop, and the issues that surround its introduction in India.

1 Philippe Cullet, For an alternative patents regime, FRONTLINE Volume 16 Issue 21 available at http://www.frontline.in/static/html/fl1621/16210900.htm

2 Cullet, Philippe. “Revision of the TRIPS Agreement concerning the Protection of Plant Varieties.” The Journal of World Intellectual Property 2.4 (1999): 623

Disclaimer: The views expressed here are the personal views of the author and do not necessarily represent or reflect the views of his professional engagements in any capacity.