PLANT VARIETIES AND INTELLECTUAL PROPERTY RIGHTS

Plants were once the unifying forces of people. People were attracted by plants and human settlements developed on the banks of rivers which were blessed with lush green vegetation. With the advent of international trade in plants and plant related products, plants even connected nations. Often fertile green areas attracted conflicts and led to conquests.

Domestication of plants from one part of the world to another changed the lifestyle and food habits of people. Plant varieties were transported from one corner of the world to another for many reasons, inter alia, to add taste, to enhance aroma, and to further research.

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Plant varieties were also imported from one country to another to meet the food grain shortage. Import of Mexican dwarf wheat varieties Sonora and Lerma Rojo from Norman E. Borlaug of Mexico, to meet the food grain famine of India in 1963 and the subsequent green revolution is a classic example of sharing of biological wealth of the planet, across national and international boundaries, to meet the basic human needs.

Gone are such days of harmony where exchange and sharing of plant varieties for the greater welfare of humanity. Today, with the advent of biotechnology and genetic engineering, the value of the genetic pool of a country has assumed enormous value and even a single gene of a variety is capable of changing the fate of the economy of a nation. On realizing the significance of genes of plant varieties protection of those varieties are being protected for exclusive use. This has paved the way for protection of existing varieties and patenting or registering of new or novel varieties developed out of genetic engineering.

Plant varieties are a part of world’s biological resources. Many efforts are being taken by nations to protect varieties found within their jurisdiction. Scientific efforts are being made to upgrade the qualities of existing varieties by way of making them hybrid. Crossing different   varieties is developing novel strains. In the process, the inventors and the people possessing indigenous or traditional knowledge wanted to protect their interests. Legal steps were hence taken to protect the rights of inventors, breeders and indigenous knowledge holders.

The UN Convention on Biological Diversity, 1992 was the first global effort to protect the biodiversity of the world and recognise the rights of the stakeholders.

The Uruguay Round of Multilateral Trade Negotiations under the General Agreement on Tariffs and Trade (GATT) substantially expanded the normal purview of trade agreements to include trade in investment, services and intellectual property. As a result, an Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been mooted under the World Trade Organization (WTO). Signatories to the agreement are obligated to adopt a patent system for plant varieties and microorganisms and to establish either patents or some sui generis system in order to recognise the intellectual property rights.

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The term ‘intellectual property’ is a broad one, and covers all types of creation of mind, inventions, literary and artistic works, symbols, names, images, and designs used in commerce. It is broadly classified into two categories:

  1. Copyright, which includes literary and artistic and artistic works such as novels, poems and plays, films, musical works, drawings, paintings, photographs, sculptures and architectural designs.
  2. Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographical indications of source.

The patenting of plant varieties comes under the second category. In India, intellectual property in relation to plant varieties is protected under the Geographical Indications of Goods (Registration and Protection) Act, 1999 and the Protection of Plant varieties and Farmers’ Rights Act, 2001.

Geographical Indications of Goods refers to a place situated therein as being the country or place of origin of a particular product. Typically, such a name conveys an assurance of quality and distinctiveness that is essentially attributable to the fact of its origin in that defined geographical locality, region or country. 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.

India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration & Protection) Act, 1999. As the Rules to this Act have not yet been made, the Act is not in force as of now.

The Protection of Plant Varieties and Farmers’ Rights Act was passed in November 2001. For nearly seven years, farmers organizations and non- government organizations strongly lobbied for this sui generis law that gives due consideration to farmers’ rights vis-à-vis Plant Varieties Protection. This law introduced interesting approaches in recognizing farmers’ rights and adapted some relevant provisions of UPOV 1978 and 1991 versions, based on the realities and requirements of India as an agriculture-based economy that equally recognizes the contribution of farming communities and private investments in the development of new plant varieties.

The Act sets up a Plant Varieties and Farmers’ Rights Protection Authority, with representatives from the various stakeholders in agricultural biodiversity issues, including women and indigenous people. It allows the registration of new plant varieties within a specific list of genera and species, as well as farmers’ varieties. It explicitly states that farmers or farmer organizations may apply for registration of their varieties.

The law also accords specific privileges to researchers/breeders and devotes a specific chapter on Farmers’ Rights that entitles farmers to save, use, sow, re-sow, exchange, share or sell their farm produce including protected varieties. Farmers’ right to sell protected varieties specifically refers to those seeds that do not bear the package, container or label of the protected varieties. It assigns good faith to farmers who commit innocent infringement, and also provides for a liability clause in case a protected variety does not perform as claimed. A National Gene Fund is also established under the Indian sui generis law, to ensure the fair and equitable sharing of benefits arising from the commercial utilization of farmers’ varieties. Provisions on compulsory licensing are also included. Since the Rules for this Act have also not been finalized, it is not in force.

Once the Geographical Indications of Goods (Registration and Protection) Act, 1999 and the Protection of Plant varieties and Farmers’ Rights Act, 2001 are put into force, there is no doubt, they will usher a new era of plant related intellectual property rights regime in India.

L. Pushpa Kumar
CPREEC.

Source: Eco News, Vol.8, No.2 (July – September), 2002.


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