Registering a variety and the farmer's exemption under the 2001 Act

Section 2(za) defines a variety as a plant grouping, other than a micro-organism, within a single botanical taxon of the lowest known rank. It must be definable by the expression of the characteristics resulting from a given genotype, distinguishable from any other grouping by at least one of them, and capable of being treated as a unit for propagation that stays unchanged after propagation. The definition includes propagating material, extant varieties, transgenic varieties, farmers' varieties and essentially derived varieties. Section 14 lets an eligible person apply for three kinds of variety: one of the genera and species the Central Government has specified by notification under section 29(2), an extant variety, or a farmers' variety. A breeder of a new variety checks the notification first, because section 14(a) reaches only the genera and species it names.

Section 15(1) registers a new variety if it conforms to the criteria of novelty, distinctiveness, uniformity and stability, and section 15(3) defines each. A variety is novel if, at the date of filing, its propagating or harvested material has not been sold or otherwise disposed of by or with the consent of the breeder or his successor for the purposes of exploitation: in India earlier than one year before filing, or outside India earlier than four years before filing, or six years in the case of trees or vines. A trial that involves no sale or disposal does not affect the right, and a variety that became a matter of common knowledge other than through that sale or disposal does not lose novelty. A variety is distinct if it is clearly distinguishable by at least one essential characteristic from any other variety that is a matter of common knowledge in any country at the time of filing. It is uniform if it is sufficiently uniform in its essential characteristics, subject to the variation expected from its mode of propagation, and stable if those characteristics remain unchanged after repeated propagation or at the end of each propagation cycle. An extant variety is registered under section 15(2) within a specified period if it meets distinctiveness, uniformity and stability criteria specified under the regulations.

Section 29 takes some varieties out altogether. Under section 29(1) no variety is registered where preventing its commercial exploitation is necessary to protect public order or public morality or human, animal and plant life and health, or to avoid serious prejudice to the environment. Under section 29(3) no variety involving a technology injurious to the life or health of human beings, animals or plants is registered, and the Explanation says that technology includes genetic use restriction technology and terminator technology. Section 15(4) lists eight denomination grounds, among them that the denomination cannot identify the variety, consists solely of figures, is liable to mislead or deceive, is not different from a registered denomination, or comprises a geographical name in whole or part, though the Registrar may register a geographical name if he considers its use an honest use.

Section 16(1) lists six kinds of applicant: a person claiming to be the breeder, the breeder's successor, the breeder's assignee of the right to apply, a farmer or group or community of farmers claiming to be the breeder, a person authorised in the prescribed manner by any of these, and a university or publicly funded agricultural institution claiming to be the breeder. Under section 16(2) they may apply individually or jointly. Section 2(c) defines a breeder as a person or group of persons, a farmer or group of farmers, or an institution that has bred, evolved or developed a variety. The application is filed in the office of the Registrar under section 18(2), with proof of the right to apply where it rests on succession or assignment.

Section 17 requires every applicant to assign a single and distinct denomination, and the Registrar may call for another one if the first does not meet the regulations. Section 17(4) says a denomination assigned to a variety shall not be registered as a trade mark under the Trade Marks Act, 1999. Section 18(1) then lists what the application must carry: the denomination, an affidavit that the variety contains no gene or gene sequence involving terminator technology, complete passport data of the parental lines with the geographical location in India from which the genetic material was taken, and all information on any contribution by a farmer, village community, institution or organisation. It must also carry a statement describing the variety's novelty, distinctiveness, uniformity and stability, a declaration that the genetic material was lawfully acquired, and the prescribed fees. For a farmers' variety the proviso to section 18(1) switches off clauses (b) to (i), and the application is made in the prescribed form.

Section 19 makes the applicant supply, along with the application, the quantity of seed the Registrar needs to test whether the variety and its parental material conform to the standards specified by the regulations, and pay the prescribed testing fee. The statute fixes that duty and leaves the method of testing to the prescribed manner. Section 40 adds a disclosure duty: the applicant must disclose the information about use of genetic material conserved by any tribal or rural families in breeding or developing the variety, and the Registrar may reject the application if satisfied that the information was wilfully and knowingly concealed.

On receiving an application the Registrar may, after such inquiry as he thinks fit, accept it absolutely or subject to conditions or limitations under section 20(1). If it does not comply with the Act or the regulations he may require an amendment or reject it, but under the proviso to section 20(2) not without giving the applicant a reasonable opportunity of presenting his case. An accepted application is advertised as soon as possible under section 21(1). Any person may then give written notice of opposition to the Registrar within three months from the date of the advertisement, on payment of the prescribed fees, under section 21(2). The grounds in section 21(3) are that the opponent is entitled to the breeder's right as against the applicant, that the variety is not registrable, that the grant may not be in public interest, or that the variety may have an adverse effect on the environment.

The Registrar serves the notice on the applicant, who has two months from receiving it to send a counter-statement, failing which he is deemed to have abandoned the application under section 21(4). Evidence is filed in the prescribed manner and time, the parties are heard if they ask, and under section 21(7) the Registrar decides whether and on what conditions registration is permitted and may take into account a ground of objection whether or not the opponent relied on it. Section 22 requires him to consider all the grounds and, giving reasons, to uphold or reject the opposition by order. Under section 24(1) he registers the variety once the application is unopposed and the time for opposition has expired, or the opposition has been rejected. The Delhi High Court has held the Registrar to this order of steps in two first-instance writ decisions. In Pioneer Overseas Corporation v. Chairperson, Protection of Plant Varieties and Farmers' Rights Authority (W.P.(C) 6470/2013, decided 1 July 2019), it held that the Registrar cannot accept and advertise an application until the variety has passed the distinctiveness, uniformity and stability test, that the test report does not bind an opponent, and that an opponent who says the candidate variety copies its own may ask for a DNA special test. It set aside the order closing Pioneer's opposition. In Nuziveedu Seeds Pvt. Ltd. v. Protection of Plant Variety and Farmers Rights Authority (W.P.(C) 4312/2014 and four connected petitions, decided 30 November 2023), a Single Judge agreed with Pioneer, quashed the advertisements issued before testing and sent the applications back to the Authority for fresh consideration.

The certificate of registration issued under section 24(2) is also sent to the Authority for determination of benefit sharing. If registration is not completed within twelve months from the date of the application because of the applicant's default, the Registrar may, after notice, treat the application as abandoned under section 24(3), unless the applicant completes it within the time the notice allows. Under section 24(5) he may issue directions to protect the breeder against abusive acts by third parties between filing and the Authority's decision. Section 24(6) fixes the validity: nine years for trees and vines and six years for other crops, renewable on payment of the prescribed fees, with a total ceiling of eighteen years from registration for trees and vines, fifteen years from the date of notification under section 5 of the Seeds Act, 1966 for an extant variety, and fifteen years from registration in other cases. An essentially derived variety follows section 23: the Authority has it tested to see whether it derives from the initial variety, and it must also satisfy section 15.

Section 28(1) confers on the breeder or his successor, agent or licensee an exclusive right to produce, sell, market, distribute, import or export the variety. For an extant variety, unless the breeder or successor establishes his right, the Central Government is deemed the owner, and where the variety is notified for a State or an area under section 5 of the Seeds Act, 1966 the State Government is. A breeder may authorise others on the limitations and conditions the regulations specify under section 28(2). An agent or licensee applies to the Registrar to register his title under section 28(4), and under section 28(6) a registered agent or licensee can call on the breeder to sue for infringement and, if the breeder refuses or neglects for three months, sue in his own name with the breeder joined as defendant. Under section 27 the breeder must also deposit seeds or propagating material, including parental line seeds, in the National Gene Bank at his own expense.

Section 30 protects use of a registered variety for experiment or research, and use of it as an initial source for creating other varieties, but the proviso requires the breeder's authorisation where repeated use of the variety as a parental line is necessary for commercial production of the new variety. Section 43 bars the breeder of a farmers' variety from authorising an essentially derived variety except with the consent of the farmers or group or community of farmers who contributed to preserving or developing it.

Under section 34 the Authority may revoke protection on the application of any person interested, on any of eight grounds. These include incorrect information in the application, a certificate granted to a person not eligible, failure to provide seed to a compulsory licensee under section 47, non-compliance with the Act or the Authority's directions, and under clause (h) that the grant is not in the public interest. The breeder must first be given a reasonable opportunity to file objection and be heard. Section 35 lets the Authority, with the Central Government's prior approval, notify an annual fee based on the benefit or royalty gained, and if a breeder, agent or licensee fails to pay it for two consecutive years and does not comply with the notice, the Authority declares the protection forfeited. A Division Bench of the Delhi High Court read section 34 narrowly in PepsiCo India Holdings Pvt. Ltd. v. Kavitha Kuruganti (LPA 590/2023 and LPA 644/2023, decided 9 January 2024). It held that revocation is meant for an applicant who was ineligible or a registration that is otherwise invalid, not for a wrong entry with no material bearing on the grant, and that filing suits to protect section 28 rights is not by itself intimidatory or vexatious for section 34(h). It set aside the revocation order and restored PepsiCo's renewal application to the Registrar, and the Supreme Court case on this page arose from that judgment.

Section 39(1) begins with the words notwithstanding anything contained in the Act. Clause (i) entitles a farmer who has bred or developed a new variety to registration and protection like a breeder. Clause (ii) makes a farmers' variety registrable if the application contains the declarations the section specifies by reference to section 18(1)(h). Clause (iii) entitles a farmer engaged in conserving the genetic resources of land races and wild relatives of economic plants to recognition and reward from the Gene Fund, provided the material was used as a donor of genes in a registrable variety. Under section 2(k) a farmer includes a person who cultivates crops himself, one who directly supervises cultivation through another, and one who conserves or adds value to wild species or traditional varieties.

Clause (iv) is the saved-seed rule. A farmer is deemed entitled to save, use, sow, resow, exchange, share or sell his farm produce, including seed of a protected variety, in the same manner as he was entitled before the Act came into force, but the proviso says he cannot sell branded seed. The Explanation defines branded seed as any seed put in a package or other container and labelled to indicate that it is of a protected variety. Section 42 adds a protection for the farmer who did not know: a right under the Act is not infringed by a farmer who was unaware of it at the time, and no relief in a suit under section 65 and no cognizance of an offence can be taken against a farmer who proves that he was unaware.

Section 39(2) is the route for a crop that fails. Where propagating material of a registered variety has been sold to a farmer, a group of farmers or an organisation of farmers, the breeder must disclose the expected performance under given conditions. If the material fails to deliver it, the farmer may claim compensation before the Authority in the prescribed manner. The Authority gives the breeder notice and a chance to oppose, hears the parties, and may direct the breeder to pay such compensation as it deems fit. Separately, section 100 of the Consumer Protection Act, 2019 says its provisions are in addition to and not in derogation of any other law, and National Seeds Corporation, below, applied the same principle under the 1986 Act to seed growers. Section 89 bars any civil court from deciding a matter the Authority or the Registrar is empowered to determine.

Benefit sharing starts after registration. Under section 26(1) the Authority, on receiving the copy of the certificate, publishes its contents and invites claims. Under section 26(2) a claim may be made only by a citizen of India, a group of citizens of India, or a firm or governmental or non-governmental organisation formed or established in India, in the prescribed form, within the prescribed period and with the prescribed fees. The Authority sends the claim to the breeder, who may oppose it, hears the parties, and under section 26(5) must state in its order the amount of benefit sharing, if any, the claimant is entitled to. It takes into account two matters: the extent and nature of the use of the claimant's genetic material in developing the variety, and the commercial utility and demand in the market for the variety.

The breeder deposits the amount in the National Gene Fund under section 26(6), and under section 26(7) the amount is recoverable as an arrear of land revenue by the District Magistrate. The statute names the two factors and leaves the amount to the Authority's order.

Section 41 gives a village or local community a parallel route. Any person or group, whether or not engaged in farming, or any governmental or non-governmental organisation, may on behalf of a village or local community file a claim for its contribution to the evolution of a variety at a centre the Authority has notified with the Central Government's previous approval. The centre verifies the claim and, if the community has contributed significantly to a registered variety, reports to the Authority. After notice to the breeder and a hearing, the Authority may grant compensation, subject to any limit the Central Government notifies, and the breeder deposits it in the Gene Fund under section 41(4). Section 45 lists what is credited to the Gene Fund, including benefit sharing, the annual fee under section 35(1) and compensation under section 41(4), and what it pays for, including benefit sharing under section 26(5) and compensation under section 41(3).

Under section 47(1), after three years from the date of issue of the certificate, any person interested may apply for a compulsory licence, alleging that the reasonable requirements of the public for the seed or propagating material have not been satisfied or that it is not available to the public at a reasonable price. After consulting the Central Government, giving the breeder an opportunity to oppose and hearing the parties, the Authority may under section 47(3) order the breeder to grant a licence on terms it deems fit and send a copy of the order to the Registrar to register the licensee under section 28(4). A breeder who then withholds seed from the licensee risks revocation under section 34(e).

Appeals no longer go to a Tribunal. Sections 54, 55 and 58, headed Tribunal, Composition of Tribunal and Procedure of Tribunal, were omitted by the Tribunals Reforms Act, 2021 with effect from 4 April 2021, and the headings still read Tribunal in the published text of the Act. Section 56(1), where the word Tribunal was substituted by High Court with effect from the same date, lets a party appeal to the High Court within the prescribed period from an order of the Authority or Registrar relating to registration of a variety, from the Registrar's order on registration of an agent or licensee, and from the Authority's orders on a benefit-sharing claim, on revocation or modification of a compulsory licence, and on payment of compensation. The High Court may amend its order within thirty days to correct a mistake apparent on the record and, under section 57(3), may where possible decide the appeal within one year from filing.

Under section 64, a right under the Act is infringed by a person who is not the breeder, registered agent or registered licensee and who sells, exports, imports or produces the variety without the permission of the breeder or the registered licensee or agent, or who uses, sells, exports, imports or produces any other variety under a denomination identical with or deceptively similar to the registered one so as to cause confusion. Section 65 says no suit for infringement or relating to any right in a registered variety may be instituted in a court inferior to a District Court. Section 66 lets the court grant an injunction and, at the plaintiff's option, either damages or a share of the profits, and the injunction may be ex parte or include interlocutory orders for discovery of documents, preserving the infringing variety or evidence, and attachment of the defendant's property. A farmer who proves that he was unaware of the right is protected by section 42 from relief in that suit. A suit needs a registration: in Sungro Seeds Ltd v. Dr. S.K. Tripathi (CS(OS) 1163/2013, decided 15 May 2020), the Delhi High Court held that a plaintiff whose application was still pending could not sue to restrain defendants from infringing rights not yet conferred, applying the reasoning that an applicant's rights are inchoate until grant, and dismissed the suit.

The offences are in sections 70 to 73. Under section 70 applying a false denomination to a variety, or falsely indicating the country, place or breeder's name and address, is punishable with imprisonment of not less than three months and up to two years, or a fine of not less than fifty thousand rupees and up to five lakh rupees, or both, unless the accused proves he acted without intent to defraud. Under section 72 falsely representing an unregistered variety as registered carries imprisonment of not less than six months and up to three years, or a fine of not less than one lakh rupees and up to five lakh rupees, or both. Under section 73 a second or later conviction carries imprisonment of not less than one year and up to three years, or a fine of not less than two lakh rupees and up to twenty lakh rupees, or both.