Plant Varieties Act: Misunderstood and Misapplied (Part I)

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The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV Act) is probably one of the least understood IP laws in this country. Arbitrary and ultra vires actions of the PPV authority certainly don’t help the cause, irrespective of whether the motive is right or wrong.

In this case, I am referring to Public Notice 01/2019 published in May 2019 and clarified in a certain meeting with stakeholders in August 2019. To the best of my knowledge, there is no challenge to this Public Notice currently pending in any court. There are several aspects to the discussion and therefore, this is intended to be a multi-part series. This is Part-I.

What Does the Public Notice 01/2019 Do?

The Public Notice 01/2019 creates a so-called “compound” system for seeking registration of ‘hybrids’ and ‘parental lines’. I don’t intend to make this entry into a detailed exposition of plant varieties from a scientific perspective, but the following pictograph is useful to understand the terms ‘hybrid’ and ‘parental lines’.

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With reference to the above example, a different hybrid will be obtained if Parent 1 is crossed with a different parental line, say, for instance, with Parent 3. Similarly, a different parental line can be crossed with Parent 3 to obtain a different hybrid. The key points to remember are:

1. one of the parents of one hybrid can also be a parent for several other hybrids; and
2. a change in one of the two parents can change the hybrid.

P.S: This is assuming we have a single cross or a two-way hybridization. Interestingly, the Public Notice 01/2019 states that hybrids obtained by three-way or four-way hybridization are not registrable under the PPV Act. This will require a separate detailed explanation and more on that in a separate blog post.

The Public Notice 01/2019 states that registrations of parental lines and hybrids would only be permitted as a composite package. This system is made applicable to future applications for registrations, as well as all pending applications but not for registrations already granted.

The ‘compound’ application system is as below:

• The same registration number for the parents and the hybrid will be retained with a different suffix for the parents and the hybrids;
• The applications for each of the parents and/or hybrids can be filed separately and even spaced across time;
• The compound system is not just a procedural matter though and extends to substantive rights. The rights over the hybrid is co-terminus with the rights of the parent lines. Thus, if one or both of the parents is already registered / applied for, the hybrid’s registration will relate back to the earliest of the registration dates and thus, the rights over the hybrid will terminate along with that of the parent.
• The registrability criteria for hybrids and parental lines are also made inter-dependant. In general, under the PPV Act, a registrable variety must satisfy the critical ingredients, of being ‘distinct’, ‘uniform’ and ‘stable’ (Refer Section 2(za)(ii)-(iii) of the PPV Act). This is otherwise known as the DUS standards. The inter-dependency created as per the Public Notice 01/2019 (read with the clarification issued as per the stake holder meeting in August 2019) is summarized in the matrix below:

Case III as per the matrix is my interpretation of paragraph (f) of the Public Notice 01/2019 read with the meeting minutes of August noted above. Said para (f) of the notice and the language used in the meeting minutes of August, are extracted below:

“f) If a candidate hybrid variety or any of the parent/parents under DUS testing fails on Uniformity test, and in the case of parent/parents on Stability test, then the hybrid along with its parents that generated it shall be rejected.”

“…Para (f) refers to hybrid failing uniformity test and parents failing stability test in which case all will be rejected…”

The meeting minutes refers to a situation of rejecting both the parent and the hybrid if the hybrid fails the uniformity test and the parent fails the stability test. Granted, the language used in para (f) of the Public Notice is different (since it refers to uniformity of parents as well and not just the hybrids). Ultimately, the PPV Authority would have to clarify what it really intended to mean because the difference in language used across the two documents is certainly unhelpful. For now, though, I will assume that the language used in the subsequent meeting minutes of August is what the authority truly intended.

Ultra Vires – Term of Protection

I have several legal issues with this Public Notice 01/2019 and frankly, it is not possible to bring these all out within this one blog post. The main issue on which I will focus on here is the fact that the notice is ultra vires. The Public Notice 01/2019 is purportedly issued under Section 20 PPV Act, which is simply the provision empowering the PPV Authority to examine any filed applications for acceptance – sort of an initial scrutiny. There is no empowerment under Section 20 to frame guidelines of this nature.

Apparently, this lack of power was raised as an issue in a stake holder meeting in August 2019 and the minutes indicates that the PPV Authority has continued to maintain that Section 20(1) empowers it and/or will consider whether other provisions need to be referred to.

There is a general power under Section 8(1) of the PPV Act enabling the authority to take measures at it deems fit for “the encouragement for the development of new varieties of plants and to protect the rights of the farmers and breeders”. There is also power conferred under Section 95 of the PPV Act to frame regulations “consistent with this Act and the rules made thereunder to carry out the provisions of this Act”, subject to those regulations being laid before the Parliament as per Section 97.

On the face of it, the Public Notice 01/2019 does not fall within the scope of Section 8(1) or 95(1). Even if the PPV Authority is able to demonstrate the existence of any express or implied powers, it is moot point because no such power conferred on a creature of a statute can be exercised in a manner that is contrary to the statute itself. In this case, by amending the eligibility criteria for registration and the term for which exclusive rights can be exercised, the PPV Authority is amending the PPV Act.

Under Section 28(6) of the PPV Act, for trees and vines, the registration is initially valid for a period of 9 years (and 6 years for other crops). This is renewable subject to a certain maximum period:

The fact that the term of the hybrid is made coterminous with a parent is not consistent with the PPV Act. The Patents Act, 1970, for instance, expressly refers to such a situation in the cases of patents of addition. Nothing similar is contained in the PPV Act and for the Authority to bring this into effect is worse.

Ultra Vires – Eligibility Criteria

As far as the eligibility criteria is concerned, in theory, each item for which registration is sought, must fulfil the definition of ‘variety’ as per Section 2(za) and fulfil the DUS standards as defined in Section 15(3)(b)-(d) [Note: if registration is sought as a novel variety, then an additional of novelty as per Section 15(3)(a) needs to be satisfied. This is not relevant for this blog entry]. Meaning thereby, each variety for which registration is sought must separately fulfil the DUS requirement. Therefore, for instance, a hybrid must be a ‘variety’ and inter alia, must also be ‘distinct’. A parent must also independently be a ‘variety’ and inter alia, be ‘distinct’.

By extension, by connecting the eligibility criteria of one variety with another, the PPV Authority goes beyond what is contemplated in the statute. So, the Public Notice 01/2019 does appear, on the face of it, to be ultra vires even on this issue. However, the more I think, the more I feel there is a lot more to be discussed on this point and so, stay tuned for Part-II.

Please click here to view Part II and here to view Part III of this three-part post.