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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, are intellectual property rights that are granted to breeders' of a new plant varieties.
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.
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.
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. 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. 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.
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.
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.
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.
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.
How are the plant variety laws enforced?
The owner of a protected variety may bring civil action against persons infringing on his or her rights.
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.