The issue of certification of new & extant plant varieties is in the limelight thanks to the PepsiCo issue. The latest data indicates that of the 6400 odd certificates issued so far, 54% were issued to farmers, 25% to private organizations, 21% to public bodies like ICAR and state agricultural universities.
PepsiCo India Holdings Ltd.’s potato variety, FL-2027, used for manufacturing Lays potato chips had garnered attention when the Company sued a few farmers in Gujarat for allegedly infringing its patent rights by illegally growing, producing, and selling the variety without the company’s permission, back in 2019. Later, the company withdrew the lawsuits to settle the issue amicably.
Subsequently, in December 2021, the registration of FL-2027 potato variety was revoked by the ‘Protection of Plant Varieties and Farmers Rights Authority’ (The Authority) upon finding that the certificate of registration was earlier granted on the basis of incorrect information furnished by the Company. The revocation order was issued upon the filing of revocation application in June 2019, about 30 months before the order.
However, the recent verdicts of the Delhi High Court about registration and renewal of the same variety of Potato has been garnering attention yet again. The Company had challenged the revocation order of Authority in the Delhi High Court. In its verdict on 5 July 2023, the single judge bench upheld the revocation order of the Authority. However, in its recent judgment on 9 January 2024, the Division Bench of Delhi High Court had set aside both the single bench judge verdict and also the revocation order and had directed the Authority to process the renewal application of the Company in accordance with Law and in light of the findings recorded in the judgement. While it remains to be seen what further administrative and legal developments are going to take place, the issue has been receiving attention yet again.
Against this backdrop, we look at the significance of the patenting of plant varieties and the process in India, the legislation that governs it, and numbers pertaining to the certified varieties in the country.
IPR Protection for improved seed varieties
Usually, improved varieties of seeds are used for an increase in yield alongside the use of other agricultural inputs such as fertilizers, and insecticides. To achieve better yields, improved seed varieties that can withstand environmental shocks and diseases are often used. These could help in multiple ways such as ensuring food security, and supporting farmers to adapt to climate change among other things. However, it takes a very long time, sometimes 15 years or more to develop a new variety with improved features, and an additional number of years to introduce the same into the market and for farmers to adopt it. In addition to the time required for developing these varieties, human and financial resources are also required, which calls for a legal system of plant variety protection.
UPOV convention in 1961 encouraging countries to introduce a plant variety protection system
Globally, the International Union for the Protection of New Varieties of Plants (UPOV) was established in 1961 ‘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 society.’ Following the UPOV Convention, many countries introduced a plant variety protection (PVP) system. UPOV had 78 members as of 03 November 2021, while India has initiated the procedure for acceding to the UPOV Convention.
Protection of Plant Variety and Farmers Right Act was enacted in India in 2001
In India, the Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) was enacted ‘to provide for the establishment of an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants’ and for giving effect to the TRIPS Agreement. In simpler terms, the legislation grants intellectual property rights to breeders, farmers, and researchers who develop a new plant variety or develop the existing ones.
The Act defines the rights of breeders, farmers, and researchers
The rights of breeders, farmers, and researchers have been clearly defined under the Act:
Breeders’ Rights – The breeder or their successor, agent, or licensee, has exclusive rights to produce, sell, market, distribute, import, or export the protected variety under Section 28 of the Act.
Researchers’ Rights – The researchers are permitted to use any of the registered varieties under the Act for conducting experiments or research. They can also use a registered variety as an initial source for the purpose of developing another variety. However, repeated use needs the prior permission of the registered breeder.
Farmers’ Rights – The Act contains a separate chapter listing the rights of farmers. If a farmer has evolved or developed a new variety, then they are entitled to the registration and protection of the variety just like a breeder. Further, they are permitted to save, use, sow, re-sow, exchange, share or sell their farm produce including seeds of a variety protected under the PPVFR Act, 2001. However, they are not permitted to sell ‘branded seed’ or those seeds that are of a variety protected under the Act. Furthermore, the Act also provides for compensation to the farmers for non-performance of variety.
Protection of Plant Varieties and Farmers’ Rights Authority has been established by the Act
The Act established the Protection of Plant Varieties and Farmers’ Rights Authority, also referred to as Plant Authority, under the Ministry of Agriculture and Farmers Welfare. The functions of the Authority include the following:
- Registration of new plant varieties.
- Documentation and cataloguing of all varieties.
- Ensuring availability of registered varieties of seeds for farmers and providing for compulsory licensing of such varieties to ensure production and sale of the seed.
- Maintenance of the National Register of Plant Varieties and National Gene Bank for conserving seeds of registered varieties.
- Collection of statistics about plant varieties in India and abroad for compilation and publication.
The Chairperson of the Authority is appointed by the Union Government. The remaining 15 members of the Authority include 8 ex-officio members from various ministries, three members from state governments, and one representative each for farmers, tribal organizations, seed industry, and women’s organizations associated with agricultural activities.
Any person or group can apply for the registration of Plant Variety
Any person, group, or organization that claims to be the breeder of a plant variety can apply for the registration of plant variety. The applicant must submit a fixed amount of seed sample with prescribed germination percentage, physical purity, and phytosanitary standards for the authority to conduct tests. There is a schedule for the receipt of seed samples to facilitate the Distinctness, Uniformity and Stability (DUS) testing procedures depending on the crop. For instance, for rice crops, the seeds should be submitted between December and 15 April.
For any variety which is already in the market, but for not more than a year, an application can be made for registration as a new variety. Other older varieties can be registered as Extant Variety. The fee varies depending on factors like if the variety is new, fee for DUS test, annual fee, registration fee, etc. The duration of registration is 18 years for trees and vines, and 15 years for other crops & extant varieties.
6,450 certificates have been issued as of 19 January 2024; 68% of these are Cereals
A total of 6,450 certificates have been issued by the Plant Authority as of 19 January 2024, as per the authority’s dashboard. This includes 4,389 varieties of cereals, which alone account for more than two-thirds (68%) of the total certificates issued. Fibre crops, Legumes, Vegetables, and Oilseed varieties of crops together account for 28% of the certificates, while other crops and plants such as Fruits, Spices, Sugar Crops, Trees and Forest Plantation Crops, Flowers and Medicinal and Aromatic Plants together account for nearly 4% of the certificates. Among these, Flower, and Medicinal and Aromatic Plants registered are only 12 and 1 varieties, respectively.
More than 50% of Certificates issued to Farmers
Based on the applicant category of certificates issued, about 3,475 certificates have been issued to farmers which is about 54% of all the certificates issued as of 19 January 2024. About 25% or 1,609 certificates are issued to private organizations that are mostly seed companies. The remaining about 21% or 1,366 certificates have been issued to public bodies such as The Indian Council of Agricultural Research (ICAR) and Universities such as State Agricultural Universities (SAUs).
In terms of the category of variety, 3,175 certificates have been issued to farmer variety, and 993 certificates were issued for new varieties, according to the dashboard. Apart from these, 1,548 certificates were issued for extant & extant notified, and 720 for extant varieties of which there is common knowledge (Varieties of common knowledge, abbreviated as VCK). 14 certificates were issued to Essentially Derived Variety (EDV) of crops, that is, those which have been derived from the existing varieties.
Protecting the Rights of Farmers is Paramount
While the plant authority and PPV&FR Act facilitates a system for protecting plant varieties while aiding the growth of the seed industry, protecting the rights of farmers & ensuring that the law is not misused is of paramount importance. The PepsiCo issue highlights the lacunae in the entire process. While it is important to incentivize private companies and public organizations to invest in research & develop new varieties, this cannot be at the expense of infringing on farmers’ rights. This also calls for increased investment by the government so that state-owned public institutions can be at the forefront of developing new varieties
Featured Image: Protection of Plant Varieties and Farmers Rights Authority