The TRIPS Agreement protects the “plant varieties” as Intellectual Property Rights under Part II, Section 5, which is dealing with Patent protection.
Plant Breeders' Rights, also called Plant Variety Rights (PVR), are intellectual property rights that are granted to breeders' of a new plant varieties.
The Plant Varieties and Farmers Act, 2001 protects the plant resources of India.
The Plant Varieties and Farmers Act, 2001 protects the “plant resources” of India. The TRIPS Agreement protects the “plant varieties” as an Intellectual Property Right under Part II, Section 5, which is dealing with “Patent protection”. Article 27(3) (b) of the TRIPS Agreement provides that “Members” shall provide for the protection of Plant Varieties “either” through Patent Law or by an effective sui generis system or by a combination thereof. The TRIPS Agreement encourages the Member Countries to adhere to well recognised International Treaties and Conventions already in force. It is not requiring its members to follow the rules laid down by the UPOV Convention of 1978 and UPOV Convention of 1991. It has given a choice to the members to protect plant varieties either through Patent law or through an effective sui generis system. The general provisions and limitations of the TRIPS Agreement pervades the laws providing the protection to plant varieties. The law of India combined the provisions of both UPOV 1978 and UPOV 1991 by taking the best of both. The adoption of a sui generis law by India is an appropriate step.
Plant Breeders' Rights, also called Plant Variety Rights (PVR), are intellectual
property rights that are granted to breeders' of a new plant varieties.
The control of seeds of new varieties of plants and the rights to collect royalties on them is granted to the plant breeder through the Plant Breeders' Rights. This right helps cover the costs of research and development. The farmers also benefit from superior varieties.
A small royalty is included in the purchase price and the right to sell the seed that they produce is excluded. The farmers are given the right to store the production for their own use as seed, but further sales for propagation are allowed only with the priorwritten approval of the breeder.
Plant breeders' rights include many more exceptions than the general regime of patent law. There is for example, a breeders' exemption in respect of research and experimentation on new varieties of plants and the scope for compulsory licensing for access to such new varieties.
There is overlap between patent law and plant breeder's rights which has given rise to litigation in many countries like Australia, United States, and Canada.
Case Law: Matthew Rimmer. "Franklin Barley: Patent Law And Plant Breeders' Rights", Murdoch University Electronic Journal of Law, December 2003, Vol. 10.
The International Convention for the Protection of New Varieties of Plants ensures that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right with a set of uniform and defined principles.
The International Convention for the Protection of New Varieties of Plants was revised in Geneva in 1972, 1978 and 1991. Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation.
Under the 1978 Act, the plant breeder's right makes prior authorisation mandatory for the purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety.
The 1991 Act provides more detailed provisions defining the acts concerning propagating material in relation to which the holder's authorisation is required.
The WTOs Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires member states to provide protection for plant varieties either by patents or by an effective sui generis (stand alone) system, or a combination of the two. The International Union for the Protection of New Varieties of Plants also regulates plant breeders' rights internationally.
The Rio Convention on Biological Diversity was signed in June 1992. While the Convention was not directly concerned with patent standards or plant breeder's rights, it heralds a new approach to the way biological resources are used.
The FAO International Undertaking on Plant Genetic Resources is a non binding agreement that provides for unrestricted access to plant genetic resources. The revised undertaking attempts to maintain relatively unrestricted access to biological material under the control of governments in the public domain while securing reasonable benefits, particularly for developing countries which provide significant sources of agricultural biological material for development and research in developed countries.
Variety Protection Office, United States - FAQ
Who may apply for Plant Variety Protection?
Anyone who is the owner, breeder, developer, or discoverer of a unique cultivator of a sexually reproduced or tuber-propagated plant may apply for Plant Variety Protection. This applies to citizens of the United States, as well as citizens of countries that are members of the International Union for the Protection of New Varieties of Plants (UPOV). The applicant may be an individual, a public institution, or a corporation.
How do we go about filing an Assignment of Certificates/Applications of Plant Variety Protection? Is there a particular form? What is the cost, etc.?
The recording of an assignment can be done by completing Form ST 473 or sending a letter to the Plant Variety Protection Office indicating the party for which the assignment/transfer is made from and to, along with the date of transfer. A fee of $41 per certificate/application needs to be paid, made payable to the "Treasurer of the United States" and sent with the document indicating the assignment/transfer.
What if I've already sold seed of my variety but would still like to have it protected?
As long as you have not sold seed of the variety, offered or advertised it for sale for more than 1 year in the United States, prior to the date your application is filed in the Plant Variety Protection Office, your variety is still eligible for protection. You have more than one year of eligibility if the variety has only been sold in a foreign country. Ordinarily that time would be 4 years, and 6 years for a tree or vine.
What exemptions are there to the protection provided?
In general, there are two exemptions to the protection provided.
A research exemption to allow the use for breeding to develop a new variety; and
A farmer's exemption to allow the saving of seed for the sole use of replanting the farmer's land. Neither plant patents nor utility patents provide these exemptions.
What actions are people prohibited from taking with a protected variety?
Without explicit consent from the owner, a person is prohibited from : selling, marketing, offering, delivering, consigning, exchanging, or exposing the variety for sale. In addition, a person is prohibited from soliciting an offer to buy the variety or transfer or possess it in any way. It is also illegal to import or export the variety, sexually multiply it, propagate it by tuber, use
the variety in producing (as distinguished from developing) a hybrid, or condition the variety for the purpose of propagation.
Does this mean that the home gardener or farmer cannot propagate the seed of a protected variety and save it for future planting?
Under provisions of the PVP law and regulations growers and home gardeners can grow, and save seed for their own future planting, any legally purchased protected variety they wish. However some protected varieties that are sold may have other limitations due to patents or contracts and may not be saved for future planting.
How is protection of the plant variety enforced?
The owner of a protected variety may bring civil action against persons infringing on his or her rights. The owner may ask a court to issue an injunction to prevent others from further violations. It is the owner of the protected variety who must bring suit in such cases. USDA will not take that action. In the USA, intellectual property protection for plants is provided through plant
patents, plant variety protection an utility patents. Plant patents provide protection for asexually reproduced (by vegetation) varieties excluding tubers. Plant variety protection provides protection for sexually (by seed) reproduced varieties including tubers, F1 hybrids, and essentially derived varieties. Utility patents currently offer protection for any plant type or plant parts. A plant variety can also receive double protection under a utility patent and plant variety protection.
European Community Plant Variety Protection - Oxford University Press, USA Book by Gert W|rtenberger, Bart Kiewiet, P. A. C. E. van der Kooij
Intellectual Property Rights in Plant Varieties: International Legal Regimes And Policy Options (FAO) Food & Agriculture Organization. Book by Laurence R. Helfer
Providing Protection for Plant Genetic Resources:Patents, Sui Generis Systems, and Biopartnerships by Patricia Marin.