What is Plant Variety Protection under IPR?

IP is designed to encourage innovation and creativity by providing creators and inventors with exclusive rights to their work for a certain period. These creations can include inventions, literary and artistic works, designs, symbols, names, and images used in commerce.

Intellectual Property Right refers to the legal rights that protect creations of the mind. These creations can include inventions, literary and artistic works, designs, symbols, names, and images used in commerce. IP is essential for encouraging innovation and creativity by allowing creators to control the use of their work and benefit financially. The landscape of IP is evolving.

The concept of Plant Variety Protection (PVP) was internationally formalized with the establishment of the International Union for the Protection of New Varieties of Plants (UPOV) in 1961. The original UPOV Convention aimed to create a framework for protecting new plant varieties and promoting agricultural innovation.

The International Union for the Protection of New Varieties of Plants (UPOV), founded in 1961, serves as a global framework for safeguarding plant variety innovation. The organization has developed the UPOV Convention, a comprehensive set of rules that have been adopted by numerous countries worldwide. This convention establishes standardized criteria for plant breeders’ rights (PBRs), ensuring that new varieties are protected based on their novelty, distinctiveness, uniformity, and stability.

Types of Intellectual Property

Intellectual Property (IP) refers to creations of the mind that can be legally protected. Here are eight common types:

1. Copyright: Protects original works of authorship, such as books, articles, music, films, and software.
2. Trademark: Protects words, symbols, or designs that identify goods or services.
3. Patent: Protects inventions and processes that are novel, useful, and non-obvious.
4. Trade Secret: Protects confidential information that gives a business a competitive advantage.
5. Geographical Indication (GI): Protects the origin and reputation of goods produced in a specific region.
6. Industrial Design: Protects the ornamental appearance of an article.
7. Plant Variety Rights: Protects new plant varieties.
8. Layout-Design (Integrated Circuit): Protects the topological configuration of an integrated circuit.

As discussed above there are eight common types of Intellectual property, in this article we will be discussing in detail about Plant Variety Rights.

What is Plant Variety Protection (PVP)?

Plant Variety Rights (PVR) are a type of intellectual property protection specifically designed to safeguard new and distinct plant varieties. It provides breeders with exclusive rights to commercially exploit their creations.

Plant Variety Protection (PVP)  Gives breeders exclusive rights to propagate, sell, and distribute their newly developed plant varieties for a certain period, typically around 20 to 25 years, depending on the country.

In India, the duration of Plant Variety Protection (PVP) is as follows:

• Agricultural and Horticultural Varieties: Protection is granted for a period of 15 years from the date of registration.
• Varieties of Trees and Vines: Protection extends for 20 years from the date of registration.

This duration allows breeders exclusive rights to propagate, sell, and distribute their new plant varieties during this time. After the protection period, the variety enters the public domain and can be freely used by others.

Eligibility Criteria for PVP:

1. Distinctness: The variety must be clearly distinguishable from all other known varieties. It should have unique characteristics that set it apart.
2. Uniformity: The variety must produce plants that are consistent in their characteristics when propagated. This means that the plants should have uniform traits.
3. Stability: The variety must maintain its distinct and uniform characteristics across successive generations. It should not change significantly over time.
4. Novelty: The plant variety should be new, meaning it has not been commercially exploited or publicly disclosed prior to the filing date of the application.
5. Applicable Varieties: The PVP system covers both agricultural and horticultural varieties, but it does not protect traditional varieties or landraces.

Application Process

The application process for Plant Variety Protection (PVP) in India involves the following steps:

1. Preparation of application: The breeder must prepare an application form, providing detailed information about the plant variety, including its name, origin, characteristics, and evidence of novelty, distinctness, uniformity, and stability.
2. Submission of application: The completed application form, along with supporting documents, should be submitted to the Plant Variety Protection and Farmers’ Rights Authority (PVFRA).
3. Examination: The PVFRA will examine the application to determine if the variety meets the requirements for PVP. This may involve field inspections or laboratory tests.
4. Grant of PVP: If the variety is found to be eligible, the PVFRA will grant PVP protection. The breeder will receive a certificate of protection.
5. Payment of fees: The breeder will be required to pay the prescribed fees at different stages of the application process.

Importance of PVP

The importance of Plant Variety Protection (PVP) lies in its ability to:

1. Incentivize innovation: PVP provides breeders with exclusive rights to exploit their new plant varieties, encouraging them to invest in research and development. This leads to the creation of improved varieties with higher yields, better disease resistance, or enhanced nutritional value.
2. Protect breeders’ rights: PVP safeguards the intellectual property of breeders, ensuring that they receive the benefits of their hard work and investment.
3. Promote genetic diversity: PVP helps to maintain genetic diversity in agricultural crops by preserving new and distinct varieties.
4. Facilitate international trade: PVP harmonizes intellectual property rights related to plant varieties, facilitating international trade in agricultural products.
5. Ensure food security: PVP contributes to food security by ensuring a steady supply of high-quality and productive plant varieties.
6. Exclusivity: Once granted, the breeder has exclusive rights to:
7. Produce and sell the variety.
8. License the variety to others.
9. Control the reproduction of the variety.

7. International Treaties: Many countries adhere to the UPOV Convention (International Union for the Protection of New Varieties of Plants), which establishes standards for PVP and encourages member states to implement their own laws.
8. Limitations: PVP does not prevent others from using the variety for research or breeding purposes, fostering further innovation in plant breeding.

Limitations of Plant Variety Protection (PVP):

1. Limited Duration: The protection period for PVP is typically limited, meaning that after a certain number of years (usually 15-20 years), the variety enters the public domain and can be freely used by others.
2. Exclusions: Certain types of plant varieties may be excluded from PVP protection, such as traditional varieties or farmer’s varieties.
3. Enforcement Challenges: Enforcing PVP rights can be difficult, especially in cases of infringement that occur in remote areas or involve small-scale farmers.
4. Impact on Farmers: PVP can sometimes limit the rights of farmers to save, use, exchange, or sell farm-saved seed of protected varieties. This can have implications for traditional farming practices and food security.
5. Cost and Complexity: The process of obtaining and maintaining PVP protection can be costly and complex, especially for small-scale breeders.

It’s important to note that the specific limitations of PVP can vary depending on the country and the particular laws governing PVP

Examples of PVR-Protected Plants:

• New crop varieties with higher yields, disease resistance, or improved nutritional content.
• Ornamental plants with unique colors, shapes, or fragrances.
• Fruit trees with superior taste, size, or shelf life.

International PVR Systems

• UPOV Convention: The International Union for the Protection of New Varieties of Plants (UPOV) is an international treaty that establishes standards for PVR. Many countries have adopted UPOV conventions or developed their own PVR systems based on UPOV principles.

Key features of the UPOV Convention:

• Harmonization: The Convention aims to harmonize PVP systems worldwide, making it easier for breeders to protect their varieties in multiple countries.
• Standards: The Convention sets standards for the protection of new plant varieties, including requirements for novelty, distinctness, uniformity, and stability.
• Rights of Breeders: The Convention grants breeders exclusive rights to produce, sell, and reproduce their protected varieties.
• Farmers’ Rights: The Convention recognizes certain rights for farmers, such as the right to save, use, exchange, and sell farm-saved seed of protected varieties for non-commercial purposes.
• Enforcement: The Convention provides a framework for the enforcement of PVP rights and the resolution of disputes.

Many countries have signed and ratified the UPOV Convention, including India. Adherence to the Convention means that these countries have implemented domestic laws that comply with the Convention’s standards.

Plant Variety Protection and Farmers’ Rights Act, 2001 (PVPA

The Plant Variety Protection and Farmers’ Rights Act, 2001 (PVPA) is the primary legislation governing Plant Variety Rights (PVR) in India. It provides protection to plant breeders for their new and distinct plant varieties.

Key features of the PVPA:

• Eligible varieties: The Act covers both agricultural and horticultural plant varieties.
• Protection period: The protection period is 15 years for most crops and 20 years for fruit trees.
• Exemptions: The Act excludes certain traditional varieties and farmer’s varieties from protection.
• Farmers’ rights: The Act recognizes certain rights for farmers, including the right to save, use, exchange, and sell farm-saved seed of protected varieties for non-commercial purposes.
• Enforcement: The Plant Variety Protection and Farmers’ Rights Authority (PVFRA) is responsible for administering the PVPA and enforcing its provisions.
• Plant Variety Protection: Provides rights to breeders for new plant varieties that are distinct, uniform, and stable. This allows them to control the production, sale, and distribution of these varieties for a specified period (typically 20 years).
• Registration Process: Breeders must apply for registration of their plant varieties, providing data on distinctness, uniformity, and stability. The application is examined by the Plant Variety Protection Authority.
• Benefit Sharing: The Act encourages benefit-sharing between breeders and farmers. It aims to ensure that farmers benefit from the use of their traditional knowledge and genetic resources in breeding programs.
• Implementation Authority: The Act establishes the Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FR Authority), responsible for implementing the provisions of the Act, including registration and enforcement of rights.
• Research Exemptions: The Act allows for research and experimentation with protected varieties without infringing on the breeder’s rights, promoting further innovation in plant breeding.

Importance of PVFRA

• Encourages Innovation: By providing legal protections, PVFRA incentivizes breeders to develop new varieties that can enhance agricultural productivity and sustainability.
• Supports Farmers: It acknowledges and protects the rights of farmers, ensuring they can benefit from their contributions to agriculture.
• Biodiversity Conservation: By promoting the development and protection of diverse plant varieties, the Act contributes to the conservation of biodiversity.

Other relevant laws:

• Seeds Act, 1966: This Act regulates the production, sale, and distribution of seeds in India.
• Agricultural Produce Market Committee (APMC) Acts: These state-level Acts regulate the sale and marketing of agricultural produce, including seeds.
• The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPVFRA): This is the equivalent of the PVPA in the United Kingdom.

The Protection of Plant Varieties and Farmers’ Rights Act (PVFRA) in India was enacted in 2001 to provide legal protection to new plant varieties, encourage the development of new varieties, and safeguard the rights of farmers.

The PVP Controversy Surrounding the Bt Brinjal in India

Bt brinjal, a genetically modified (GM) variety of eggplant, was developed to enhance resistance against the insect pest, fruit borer. India was the first country to approve the commercial cultivation of Bt brinjal in 2009, but this decision sparked widespread protests and controversy.

PVP Issues

1. Farmers’ Rights: Critics argued that the introduction of Bt brinjal would undermine farmers’ rights and traditional agricultural practices. They feared that the technology would lead to dependence on multinational corporations and reduce genetic diversity.
2. Environmental Concerns: Concerns were raised about the potential environmental impacts of Bt brinjal, including the development of resistant insect pests and adverse effects on non-target organisms.
3. Public Health Safety: Some individuals expressed concerns about the safety of consuming Bt brinjal, citing potential health risks associated with genetically modified organisms.

PVP Challenges

1. Lack of Public Trust: The lack of public trust in GM technology and regulatory processes hindered the acceptance of Bt brinjal.
2. Regulatory Hurdles: The approval process for Bt brinjal faced significant delays and challenges, further fueling public skepticism.
3. International Pressure: International organizations and environmental groups exerted pressure on India to reconsider its decision to approve Bt brinjal, citing concerns about biosafety and the precautionary principle.

Outcome

Despite the initial approval, the commercial cultivation of Bt brinjal in India has been suspended due to ongoing protests and legal challenges. The controversy surrounding Bt brinjal has highlighted the complex issues surrounding the introduction of GM crops and the importance of public participation in decision-making processes.

Lessons Learned

• Transparency and Public Engagement: Open and transparent communication with the public is essential for building trust and addressing concerns related to GM crops.
• Risk Assessment and Regulation: Robust regulatory frameworks are necessary to ensure the safety and environmental sustainability of GM technologies.
• International Collaboration: International cooperation and collaboration are crucial for addressing global challenges related to GM crops, such as biosafety and trade.

This case study illustrates the complexities and challenges associated with the introduction of GM crops, particularly in developing countries. It underscores the importance of balancing agricultural innovation with environmental and social concerns.

Additional Case Studies of PVP Controversies

1. Golden Rice

• Background: Golden Rice is a genetically modified rice variety engineered to produce beta-carotene, a precursor of vitamin A. It was developed to address vitamin A deficiency, a major public health problem in many developing countries.
• Controversy: Despite its potential benefits, Golden Rice faced significant opposition from environmental groups and anti-GMO activists. Critics argued that it was a distraction from addressing the root causes of malnutrition and could lead to increased corporate control over food systems.
• Outcome: While Golden Rice has been approved for commercial cultivation in several countries, its adoption has been slow due to regulatory hurdles, public resistance, and concerns about the potential for it to undermine traditional rice varieties.

2. Monsanto’s Roundup Ready Crops

• Background: Roundup Ready crops are genetically engineered to be resistant to the herbicide glyphosate, sold under the brand name Roundup. These crops have been widely adopted by farmers around the world.
• Controversy: The widespread use of Roundup Ready crops has been linked to concerns about herbicide resistance, environmental pollution, and human health risks. Critics argue that the reliance on glyphosate has led to a monoculture system that is vulnerable to pests and diseases.
• Outcome: The use of Roundup Ready crops has faced increasing scrutiny and legal challenges. In recent years, several countries have banned or restricted the use of glyphosate, and there is growing momentum for more sustainable and diverse agricultural practices.

3. Arctic Apples

• Background: Arctic Apples are genetically engineered to resist browning, a process that occurs naturally in apples after they are cut or bruised. This technology was developed to reduce food waste and extend the shelf life of apples.
• Controversy: Despite the potential benefits, Arctic Apples faced opposition from some consumer groups and environmental activists. Critics argued that the technology was unnecessary and could lead to unintended consequences for the environment.
• Outcome: Arctic Apples were eventually approved for commercial cultivation in the United States and Canada. However, their adoption has been limited, and it remains to be seen whether they will gain widespread acceptance in the marketplace.

Conclusion

Plant Variety Protection (PVP) is a critical component of the evolving dynamics  of intellectual property. By providing breeders with exclusive rights to their new and distinct plant varieties, PVP incentivizes innovation, protects breeders’ rights, and promotes genetic diversity. PVFRA is a significant step in balancing the rights of breeders and farmers, promoting agricultural innovation, and protecting India’s agricultural heritage.

Legal Equity

Published on October 6, 2024