Decoding IPR

Introduction
Intellectual property rights (IPRs) have become increasingly important in agriculture due to the growing recognition of agriculture as a rule-bound enterprise of investment and profit-making. The inclusion of agriculture in the World Trade Organization’s (WTO) General Agreement on Tariffs and Trade (GATT) during the Uruguay Round (1986-1994) led to the establishment of the WTO in 1995. The WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, came into effect in 1995, requires member countries to provide for the protection of plant varieties either by patents or by an effective sui generis system.

Implications of TRIPS Agreement for Developing Countries
For developing countries, complying with the TRIPS Agreement has significant implications. Previously patent protection for inventions, including microorganisms and microbiological processes, were excluded from patentability. This could lead to increased costs for accessing technologies and genetic resources. The requirement to protect plant varieties, either through patents or an effective sui generis system, forces countries to establish new systems of plant variety protection, laying emphasis on farmers’ rights to save and exchange seeds.

However, the lack of clear definitions of key terms in Article 27.3(b) under the TRIPS Agreement, such as “microorganisms”, “essentially biological processes”, and “effective sui generis system”, leaves room for interpretation and potential disputes. Thus, developing countries need to carefully consider how to implement this provision in a way that balances the interests of breeders, farmers, and consumers. There are concerns about the impact of plant variety protection on food security, biodiversity, and traditional knowledge, as well as the potential for increased concentration in the seed industry. Developing countries need to carefully assess these implications and explore ways to mitigate potential negative effects.

The Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001
In the Indian context, the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001, was enacted to provide for the establishment of an effective system for the protection of plant varieties, the rights of farmers and plant breeders, and to encourage the development and cultivation of new varieties of plants. The Act aims to balance the interests of breeders, farmers, and consumers and promote the growth of the seed industry in India.

Key Objectives and Features of the PPVFR Act
The Act aims to provide an effective system for the protection of plant varieties, the rights of farmers and plant breeders, and to encourage the development of new plant varieties. It recognizes farmers as plant breeders and allows them to register their varieties. They are granted the right to save, use, sow, re-sow, exchange, share, or sell their farm produce, including seeds of a protected variety. This provision is crucial for maintaining traditional farming practices and ensuring food security. The Act further recognizes the contribution of both commercial plant breeders and farmers in plant breeding efforts and ensures equitable sharing of benefits arising out of the use of plant genetic resources.

Key Provisions under the Act
The Farmers can save, use, sow, re-sow, exchange, share, or sell their farm produce, including seeds of protected varieties, similar to their pre-Act entitlements. However, they cannot sell branded seeds of protected varieties.

• Criteria for Registration: Derives from UPOV with criteria including novelty, distinctiveness, uniformity, and stability for registering new plant varieties.
• Exclusions: Excludes varieties incorporating technologies harmful to human, animal, or plant health, differing from UPOV’s broader scope.
• Trees and Vines: Protects for 9 years, renewable for an additional 9 years (total 18 years).
• Other Crops: Provides initial protection for 6 years, renewable for an additional 9 years (total 15 years)

The Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001, defines a “farmer” comprehensively to include those who cultivate crops themselves, supervise others in cultivation, or conserve and enhance traditional or wild species. This inclusive definition highlights the significant role of farmers not just in cultivation but also in biodiversity conservation.

The PPVFR Act uniquely incorporates a dedicated chapter on Farmers’ Rights. This chapter ensures that the benefits derived from plant variety protection are shared equitably with farming communities, acknowledging their historical contributions to the conservation and improvement of genetic resources. This approach aligns with India’s broader goals of social equity and sustainable development.

The PPVFR Act stands as an effective sui generis system, compliant with the TRIPS Agreement, tailored to India’s needs. This dual focus makes the PPVFR Act a model for balancing breeders’ interests with farmers’ rights, promoting a fair and inclusive agricultural sector.

Registrable Plant Varieties Under the PPVFR Act
The PPVFR Act allows for the registration of four main types of plant varieties:

1. New Varieties: if it conforms to the criteria of novelty, distinctiveness, uniformity, and stability.
2. Extant Varieties: if it meets the criteria of distinctiveness, uniformity, and stability, even if it does not qualify as a new variety. Extant varieties include those already notified under the Seeds Act, 1966, farmers’ varieties, varieties about which there is common knowledge, or other varieties in the public domain.
3. Farmers’ Varieties: defined as one that has been traditionally cultivated and evolved by farmers or is a wild relative/landrace about which farmers possess common knowledge.
4. Essentially Derived Varieties: predominantly derived from another protected variety but is clearly distinguishable from the initial variety. This allows breeders to build upon existing protected varieties to develop new ones without infringing on the original breeder’s rights.

The Central Government has taken proactive steps in implementing the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act by notifying 157 crop species for registration purposes. This notification underscores the government’s commitment to safeguarding agricultural innovation and ensuring the rights of breeders and farmers. The PPV & FR Authority has further enhanced this initiative by developing specific guidelines tailored to each crop species. This systematic approach not only promotes the registration of diverse crop varieties but also establishes clear protocols for breeders and farmers to follow in demonstrating the unique characteristics of their varieties.

Exemptions Provided Under the PPVFR Act
The PPVFR Act provides several exemptions to protect the interests of farmers and promote agricultural research:

1. Farmer’s Exemption: Farmers are allowed to save, use, sow, re-sow, exchange, share or sell their farm produce, including seeds of a protected variety ensuring food security and maintaining traditional farming practices.
2. Researcher’s Exemption: Researchers are permitted to use any variety registered under the Act for conducting experiments and research to develop new varieties facilitating the development of new plant varieties by allowing breeders to build upon existing protected varieties without infringing on the original breeder’s rights.

Impact of the PPVFR Act

1. Recognizing Farmers’ Rights: The Act acknowledges the vital role of farmers as plant breeders by allowing them to register their own varieties. This recognition empowers farmers, giving them legal rights and incentives to engage in breeding activities and contribute to agricultural innovation. The Act safeguards traditional farming practices such as saving, using, exchanging, and selling farm-saved seeds. This protection ensures that farmers can continue their traditional ways of cultivation without fear of legal repercussions. Farmers involved in conserving and improving genetic resources are eligible for rewards. This provision encourages the preservation of biodiversity and the use of indigenous knowledge in sustainable farming practices.
2. Establishing Benefit Sharing and Compensation: The Act mandates that farmers or communities contributing to the development of registered varieties receive a share of the benefits from commercialization. This provision ensures that those who have traditionally maintained genetic resources are fairly compensated.
3. Ensuring Availability of Seeds: If a breeder fails to meet the demand for seeds or planting materials, the Act provides for compulsory licensing of protected varieties. This ensures that farmers have access to essential seeds and planting materials, supporting food security and agricultural sustainability.
4. Promoting Conservation of Agro-biodiversity: The establishment of the National Gene Fund under the Act supports the conservation and sustainable use of plant genetic resources. The fund facilitates the collection, characterization, and evaluation of plant varieties, promoting agro-biodiversity. The Act encourages the conservation of plant agro-biodiversity by recognizing and rewarding farmers and communities for their efforts. These awards serve as incentives for continued preservation of valuable genetic resources.

Case Studies 

1. The PepsiCo Potato Variety Case (Pepsico India Holdings Pvt. Ld. vs Kavitha Kuruganti)  LPA 590/2023 & CM APPL. 42282/2023

Background: 
In 2019, PepsiCo filed a lawsuit against farmers for using the FC-5 (FL-2027) potato variety, which was later settled. In December 2021, the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Authority revoked PepsiCo’s varietal registration certificate for FL-2027 following a petition by activist Kavitha Kuruganti, who alleged that false information had been provided. On July 5, 2023, a Single Bench dismissed PepsiCo’s appeal against this revocation. Both PepsiCo and Kuruganti appealed this decision to the Delhi High Court, leading to a Division Bench hearing.

Decision:
The Division Bench nullified the Single Bench’s ruling and the PPVFR Authority’s order denying PepsiCo’s renewal application and directed that PepsiCo’s renewal application be reinstated and processed according to law. The Division Bench found that Kuruganti failed to prove that PepsiCo’s legal actions were vexatious or part of predatory tactics and dismissed the claim that PepsiCo’s registration was against public interest due to insufficient evidence supporting the allegations.

The Division Bench’s detailed analysis of Section 34 grounds for revocation sets a precedent for future cases involving allegations of incorrect information. The decision of the Division Bench provides a framework for interpreting public interest under Section 39(1)(iv), emphasizing the need for substantial evidence to support such claims.

The case further reveals gaps in the PPVFRA regarding the handling of procedural irregularities, prompting potential legislative or regulatory reforms to introduce penalties or corrective measures for future instances and the need for legislative amendments to address oversight and ensure that similar irregularities are penalized or corrected appropriately.

2. The Bt Cotton Case (Monsanto Technology LLC vs. Nuziveedu Seeds Ltd. & Ors.) – AIR 2019 SUPREME COURT 559

Background:
Monsanto Technology LLC developed genetically modified Bt cotton, which was engineered to combat bollworm infestations. Monsanto entered into sub-license agreements with various Indian seed companies, including Nuziveedu Seeds Ltd., allowing them to use this technology in exchange for a trait fee. These agreements became contentious due to disagreements over the trait fees and Monsanto’s subsequent termination of the sub-license agreements.

Monsanto filed a lawsuit against Nuziveedu Seeds, alleging unauthorized use of their patented technology after the termination of the agreement. Nuziveedu Seeds contested the validity of Monsanto’s patent, arguing that such patents are not permissible under Indian law.

Decision: 
The Supreme Court of India remanded the case to the single judge of the Delhi High Court for further examination. The Supreme Court emphasized the need for a detailed examination of these issues, particularly the validity of the patent, which involved complex legal interpretations under the Indian Patent Act.

This case delves into the intricacies of IPR in genetically modified organisms, examining the scope and limits of patent protection in the agricultural sector. It is pivotal in defining the boundaries of patent protection in India, especially regarding biotechnological innovations in agriculture. Thus, the case underscores the necessity for a clear and robust legal framework governing patents in agriculture, balancing innovation with public interest and farmers’ rights.

3. Sungro Seeds Ltd. v. Union of India – W.P.(C) 4365/2012

Background: 
Sungro developed a Cauliflower Hybrid named ‘Katreena’ with the help of their two employees who were bound by their employment contract and assignment deed. After leaving Sungro, the employees joined Nuziveedu, which later marketed a similar Cauliflower hybrid named ‘Riya’. Sungro alleged that the defendants breached confidentiality agreements and disclosed trade secrets to Nuziveedu.

Decision:
The Delhi High Court ruled that rights in a plant variety do not exist until registration under the Act. The Court highlighted that while the Act provides interim protection under Section 24(5), this does not extend to common law rights or confidential information claims. Further, the Court placed intellectual properties into two categories – rights accruing only upon registration (e.g., patents, plant varieties) and rights existing prior to registration (e.g., copyrights, trademarks). Thus, Plant variety rights cannot be enforced or claimed until they are registered under the Act. 

Challenges and Future Directions 
Farmers, breeders, and other stakeholders often lack awareness about their rights and obligations under the PPVFR Act. Comprehensive education and outreach programs are necessary to inform these groups about the benefits and processes involved in protecting plant varieties. This can involve workshops, seminars, and information dissemination through various media channels.

One of the key challenges is to strike a balance between the rights of farmers and breeders. Farmers’ rights may sometimes conflict with breeders’ rights to protect and commercialize new plant varieties. Policies and frameworks need to ensure that both parties benefit equitably while balancing commercial interests with the need to preserve biodiversity and traditional farming practices.

While the TRIPS Agreement has helped to harmonize global intellectual property norms, it has also posed challenges for developing countries in terms of adapting their national laws and balancing the interests of various stakeholders in the agricultural sector. The PPVFR Act represents India’s attempt to balance the interests of plant breeders and farmers, recognizing the crucial role played by both, in agricultural innovation and genetic resource conservation. Its unique features, such as the protection of farmers’ rights, distinguish it from the plant variety protection systems in many other countries. Careful implementation of the TRIPS Agreement is crucial for ensuring that plant variety protection supports sustainable agricultural development and food security in these countries.