(Bill
No. 123-C of 1999)
THE PROTECTION OF PLANT VARIETIES AND FARMERS' RIGHTS ACT, 2001
Whereas it is considered necessary to
recognise and protect the rights of the farmers in respect of their contribution made at
any time in conserving, improving and making available plant genetic resources for the
development of new plant varieties;
AND whereas for accelerated
agricultural development in the country, it is necessary, to protect plant breeders'
rights to stimulate investment for research and development, both in the public and
private sector, for the development of new plant varieties;
AND whereas, such protection will
facilitate the growth of the seed industry in the country which will ensure the
availability of high quality seeds and planting material to the farmers;
AND whereas, to give effect to the aforesaid objectives, it
is necessary to undertake measures for the protection of the rights of farmers and plant
breeders;
AND whereas India, having ratified the
Agreement on Trade Related Aspects of Intellectual Property Rights should, inter alia, make provision for giving effect to
sub- paragraph (b) of paragraph 3 of article 27 in Part 11 of the said Agreement relating
to protection of plant varieties.
Be it enacted by Parliament in the
Fifty-second Year of the Republic of India as follows:
CHAPTER
I
PRELIMINARY
1.
(1) This Act may be called the Protection
of Plant Varieties and Farmers Rights Act, 2001.
(2)
It extends to the whole of India,
(3)
It shall conic into force on such date as the Central Government may, by notification
in the Official Gazette, appoint; and different dates may be appointed for different
provisions of 'this Act and any reference in any such provision to the commencement of
this Act shall be construed as a reference to the coming into force of that provision.
2. In this Act, unless the context
otherwise requires:
(a) "Authority" means the
Protection of Plant Varieties and Farmers' Rights Authority established under sub-section
(1) of section 3,
(b) "benefit sharing", in
relation to a variety, means such proportion of the benefit accruing to a breeder of such
variety or such proportion of the benefit accruing to the breeder from an agent or a
licensee of such variety, as the case may be, for which a claimant shall be entitled as
determined by the Authority under section 26;
(c) "breeder" means a person
or group of persons or a farmer or group of farmers or any institution which has bred,
evolved or developed any variety;
(d) "Chairperson" means the
Chairperson of the Tribunal;
(e) "Chairperson" means the
Chairperson of the Authority appointed under clause (a) of sub-section (5) of section 3;
(f) "convention country"
means a country which has acceded to an international convention for the protection of
plant varieties to which India has also acceded, or at 2' country which has a law on
protection of plant varieties on the basis of which India has entered into an agreement
for granting plant breeders' right to the citizens of both the countries,,
(g) "denomination", in
relation to a variety or its propagating material or essentially derived variety or its
propagating. material, means the denomination of such variety or its propagating material
or essentially derived variety or its propagating material, as the case may be, expressed
by means of letters or a combination of letters and figures written in any language;
(h) "essential
characteristics" means such heritable traits of a plant variety which are determined
by the expression of one or more genes of other heritable determinants that contribute to
the principal features. performance or value of the plant variety,
(i) "essentially derived
variety", in respect of a variety (the initial variety) shall he said to be
essentially derived from such initial variety when it-
(i)
is predominantly derived from such initial variety, or from a variety that itself is
predominantly derived from such initial variety, while retaining the expression of the
essential characteristics that result from the genotype or combination of genotypes of
such initial variety,
(ii)
is clearly distinguishable from such initial variety; and
(iii) conforms (except for the
differences which result from the act of derivation) to such initial variety in the
expression of the essential characteristics that result from the genotype or combination
of genotypes of such initial variety;
(j) "extant variety" means a
variety available in India which is-
(i) notified under section 5 of the
Seeds Act, 1966; or
(ii) farmers' variety, or
(iii)
a variety about which there is common knowledge, or
(iv) any other variety which is in
public domain;
(k) "farmer" means any person
who--
(i) cultivates crops by cultivating the
land himself; or
(ii) cultivates crops by directly
supervising the cultivation of land through any other person; or
(iii) conserves and preserves,
severally or jointly'. with any person any wild species or traditional varieties, or adds
value to such wild species or traditional varieties through selection and identification
of their useful properties,
(l) "farmers' variety" means
a variety which-
(i)
has been traditionally cultivated and evolved by the farmers in their fields; or
(ii)
is a wild relative or land race of a variety about which the farmer possess the common
knowledge,
(m) "Gene Fund" means the
National Gene Fund constituted under sub-section (1) of section 45;
(n) "Judicial Member" means a
Member of the Tribunal appointed as such under sub-section (1) of section 55 and includes
the Chairman;
(o) "Member" means a Judicial
Member or a Technical Member of the Tribunal and includes the Chairman;
(p) "Member" means a member
of the Authority appointed under clause (b) of sub-section (5) of section 3 and includes
the Member-Secretary;
(q) "prescribed" means
prescribed by rules made under this Act.,
(r) "propagating material"
means any plant or its component or part thereof including an intended seed or seed which
is capable of, or suitable for, regeneration into a plant;
(s) "Register" means the
National Register of Plant Varieties referred to in 3o section 13;
(t) "Registrar" means a
Registrar of Plant Varieties appointed under sub-section (@1) of section 12 and includes
the Registrar-General,
(u) "Registrar-General" means
the Registrar-General of Plant Varieties appointed under sub-section (3) of section 12.,
(v) "Registry" means the
Plant Varieties Registry referred to in sub-section (1) of section 12;
(w) "regulations" means the
regulations made by the Authority under this Act;
(x) "seed" means a type of
living embryo or propagate capable of regeneration and giving rise to a plant which is
true to such type;
(y) "variety" means a plant
grouping except microorganism within a single botanical taxon of the lowest known rank,
which can be-
(i) defined by the expression of the
characteristics resulting from a given genotype of that plant grouping;
(ii) distinguished from any other plant
grouping by expression of at least one of the said characteristics; and
(iii) considered as a unit with regard
to its suitability for being propagated, which remains unchanged after such propagation
and includes propagating material of such variety, extant variety, transgenic variety
farmers' variety and essentially derived variety;
(z) "Tribunal" means the
Plant Varieties Protection Appellate Tribunal established under section 54;
(za) "Technical Member" meant
a Member of the Tribunal who is not a Judicial Member.
Establishment of Authority
3. (1) The Central Government shall, by
notification in the Official Gazette, establish an Authority to he known as the Protection
of Plant Varieties and Farmers' Rights Authority for the purposes of this Act.
(2) The Authority shall be a body
corporate by the name aforesaid, having perpetual succession and a common seal with power
to acquire, hold and dispose of properties, both movable and immovable, and to contract,
and shall by the said name sue and be sued.
(3) The head office of the Authority
shall be at such place as the Central Government may, by notification in the Official
Gazette, specify and the Authority may, with the previous approval of the Central
Government, establish branch offices at other places in India.
(4) The Authority shall consist of a
Chairperson and fifteen members.
(5)
(a) The Chairperson, to be appointed by the Central Government, shall be a person j c.
of outstanding calibre and eminence with long practical experience to the satisfaction of
that Government especially in the field of plant Varietal research or agricultural
development.
(b)
The members of the Authority, to he appointed by the Central Government, shall be as
follows, namely:-
(i) the Agriculture Commissioner,
Government of India, Department of Agriculture and Co operation, New Delhi, ex-officio;
(ii)
the Deputy Director General in charge of Crop Sciences, Indian Council of Agricultural
Research, New Delhi, ex-officio
(iii)
the Joint Secretary in charge of Seeds, Government of India, Department of Agriculture
and Co operation, New Delhi, ex-officio;
(iv)
the Horticulture Commissioner,
Government of India, Department of Agriculture and Co
operation, New Delhi, ex-officio;
(v) the Director, National Bureau of
Plant Genetic Resources, New Delhi, ex-offlcio
(vi) one member not below the rank of
Joint Secretary to the Government of 3 r India,
to represent the Department of Bio-technology Government, Member, ex-officio;
(vii) one member not below the rank of
Joint Secretary to the Government of India to represent the Ministry of Environment and
Forests, Government of India, ex-officio;
(viii) one member not below the rank of
Joint Secretary to the Government
of India to represent the Minis"
of Law, Justice and Company Affairs, Government
of India, Member, ex-officio;
(ix) one representative from a National
or State level farmers' organisation to be
nominated by the Central Government;
(x) one representative from a tribal
organisation to he nominated by the Central Government;
(xi) one representative from the seed
industry to he nominated by the Central Government;
(xii)
One representative from an agricultural University to be nominated by the Central
Government;
(xiii)
one representative from a National or State level women's organisation associated with
agricultural activities to be nominated by the Central Government; and
(xiv) two representatives of State
Governments on rotation basis to be nominated by the Central Government.
(c) The Registrar-General shall he the ex officio Member-Secretary of the Authority.
(6) The term of office of the
Chairperson and the manner of filling the post shall be such as may be prescribed.
(7) The Chairperson shall appoint a
Standing Committee consisting of five members, one of whom shall he a member who is a
representative from a farmers origination, to advise the Authority on all issues including
farmers' rights.
(8) The Chairperson shall he entitled
to such salary and allowances and shall be subject to such conditions of service in
respect of leave, pension, provident fund and other matters as may he prescribed. The
allowances for non-official members for attending the meetings of the Authority shall he
such as may be prescribed.
(9)
The Chairperson may resign his office by giving notice thereof in writing to the
Central Government and on such resignation being accepted, he shall be deemed to have
vacated his office.
(10) On the resignation of the
Chairperson or on the vacation of the office of the Chairperson for any reason, the
Central Government may appoint one of the members to officiate as Chairperson till a
regular Chairperson is appointed in accordance with clause (a) of sub-section (5).
Meetings of Authority.
4. (1) The Authority shall meet at such
time and place and shall observe such rules of procedure in regard to the transaction of
business at its meetings [including the quorum at its meetings and the transaction of
business of its Standing Committee appointed under sub-section (7) of section 31 as may he
prescribed.
(2) The Chairperson of the Authority
shall preside at the meetings of the Authority.
(3)
If for any reason the Chairperson is unable to attend any meeting of the Authority,
any member of the Authority chosen by the members present shall preside at the meeting.
(4)
All questions which come before any meeting of the Authority shall he decided by a
majority of the votes of the members of the Authority present and voting and in the event
of equality of votes, the Chairperson of the Authority or in his absence, the person
presiding shall have and exercise a second or casting vote.
(5) Every member who is in any way,
whether directly, indirectly or personally. concerned or interested in a matter to be
decided at the meeting shall disclose the nature of his concern or interest and after such
disclosure, the member concerned or interested shall not attend that meeting.
(6)
No act or proceeding of the Authority shall be invalid merely by reason of-
(a) any vacancy in, or any defect in
the constitution of, the Authority; or
(b) any defect in the appointment of a
person acting as the Chairperson or a member of the Authority; or
(c) any irregularity in the procedure
of the Authority not affecting the merits of the case.
Committees of Authority
5. (1) The Authority may appoint such
committees as may be necessary for the efficient discharge of its duties and performance
of its functions under this Act.
(2) The persons appointed as members of
the committee under sub-section (1) shall he entitled to receive such allowances or fees
for attending the meetings of the committee as may be fixed by the Central Government.
Officers and other employees of
Authority.
6. Subject to such control and
restriction as may be prescribed, the Authority may appoint such officers and other
employees as may be necessary for the efficient performance of its functions and the
method of appointment, the salary and allowances and other conditions of service of such
other officers and employees of the Authority shall be such as may he prescribed.
Chair Person to be Chief Executive.
7. The Chairperson shall be the Chief
Executive of the Authority and shall exercise such powers and perform such duties as may
be prescribed.
General functions of Authority.
8.(1) It shall be the duty of the
Authority to promote, by such measures as it thinks fit, the encouragement for the
development of new varieties of plants and to protect the rights of the farmers and
breeders.
(2) In particular, and without
prejudice to the generality of the foregoing provisions,
the measures referred to in sub-section
(1) may provide for-
(a)
the registration of extant new plant varieties subject to such terms and conditions
and in the manner as may be prescribed;
(b) developing characterisation and
documentation of varieties registered under this Act,
(c) documentation, indexing and
cataloguing of farmers' varieties;
(d) compulsory cataloguing facilities
for all varieties of plants;
(e) ensuring that seeds of the
varieties registered under this Act are available to the farmers and providing for
compulsory licensing of such varieties if the breeder of such varieties or any other
person entitled to produce such variety under this Act does not arrange for production and
sale of the seed in the manner as may be prescribed;
(f) collecting statistics with regard
to plant varieties, including the contribution of any person at any time in the evolution
or development of any plant variety, in India or in any other country, for compilation and
publication;
(g) ensuring the maintenance of the
Register.
Authentication of orders of Authority
9. All orders and decisions of the
Authority shall be authenticated by the signature of the Chair person or any other member
authorised by !he Authority in this behalf
Delegation
10. The Authority may, by general or
special order in writing, delegate to the Chair- person, any member or officer of the
Authority subject to such conditions or limitations, if any, as may be specified in the
order, such of its powers and functions (except the power to make regulations under
section 94) under this Act as it may deem necessary.
Powers of Authority
11. In all proceedings under this Act
before the Authority or the Registrar-
(a)
the Authority or the Registrar, as the case may be, shall have all the powers of a
civil court for the purposes of receiving evidence, administering oaths, enforcing the
attendance of witnesses, compelling the discovery and production of documents and issuing
commissions for the examination of witnesses;
(b)
the Authority or the Registrar may, subject to any rules made in this behalf under
this Act, make such orders as to cost as it considers reasonable and any such order shall
be executable as a decree of a civil court.
REGISTRY
Registry and offices thereof
12.(]) 71e Central Government shall
establish for the purposes of this Act, a Registry which shall be known as the Plant
Varieties Registry.
(2) The head office of the Plant
Varieties Registry shall be located in the head office of the Authority, and for the
purpose of facilitating the registration of plant varieties, there may be established, at
such places, as the Authority may think fit, branch offices of the Registry.
(3) The Authority shall appoint a
Registrar-General of Plant Varieties who shall he entitled to such salary and allowances
and shall he subject to such conditions of service in respect of leave, pension, provident
fund and such other matters as may he prescribed.
(4)
Ale Authority may appoint such number of Registrars as it thinks necessary for
registration of plant varieties under the superintendence and direction of the Registrar
General under this Act and may make regulations with respect to their duties and
jurisdiction.
(5)
The term of office and the conditions of service of the Registrars shall be such as
may be provided by regulations.
(6)
The Authority may, by notification in the Official Gazette, define the territorial
limits within which a branch office of the Registry may exercise its functions.
(7) There shall be a seal of the Plant
Varieties Registry.
National register of plant varieties
13. (1) For the purposes of this Act, a
Register called the National Register of Plant Varieties shall be kept at the head office
of the Registry, wherein shall he entered the names of all the registered plant varieties
with the names and addresses of their respective breeders, the right of such breeders in
respect of the registered variety, the particulars of the denomination of each registered
variety, its seed or other propagating material along with specification of salient
features thereof and such other matters as may be prescribed.
(2) Subject to the superintendence and
direction of the Central Government, the Register shall be kept under the control and
management of the Authority.
(3)
here shall be kept at each branch office of the Registry a copy of the Register and
such other documents as the Central Government may, by notification in the Official
Gazette, direct.
Application for Registration
14. Any person specified in section 16
may make an application to the Registrar for So, registration of any variety-
(a)
of such genera and species as specified under sub-section (2) of section 29; or
(b) which is an extant variety; or
(c) which is a farmers' variety.
15. (1) A new variety shall be
registered under this Act if it conforms to the criteria of novelty, distinctiveness,
uniformity and stability.
(2) Notwithstanding anything contained
in sub-section (1), an extant variety shall be registered under this Act within a
specified period if it conforms to such criteria of distinctiveness, uniformity and
stability as shall be specified under the regulations.
(3) For the purposes of sub-sections
(1) and (2) as the case may be, a new variety shall be deemed to be-
(a)
novel, if, at the date of filing of the application for registration for protection,
the propagating or harvested material of such variety has not been sold or otherwise
disposed of by or with the consent of its breeder or his successor for the purposes of
exploitation of such variety-
(i) in India, earlier than one year; or
(ii) outside India, in the case of
trees or vines earlier than six years, or, in any other case, earlier than four years,
before the date of filing such application:
Provided that a trial of a new variety
which has not been sold or otherwise disposed of shall not affect the right to protection.
Provided further that the fact that on
the date of filing the application for registration, the propagating or harvested material
of such variety has become a matter of common knowledge other than through the aforesaid
manner shall not affect the criteria of novelty for such variety;
(b) distinct, if it is clearly
distinguishable by at least one essential characteristic from any other variety whose
existence is a matter of common knowledge in any country at the time of filing of the
application.
Explanation.-For
the removal of doubts, it is hereby declared that the filing of an application for the
granting of a breeder's right to a new variety or for entering such variety in the
official register of varieties in any convention country shall be deemed to render that
variety a matter of common knowledge from the date of the application in case the
application leads to the granting of the breeder's right or to the entry of such variety
in such official register, as the case may be;
(c) uniform, if subject to the
variation that may be expected from the particular features of its propagation it is
sufficiently uniform in its essential characteristics;
(d) stable, if its essential
characteristics remain unchanged after repeated propagation or, in the case of a
particular cycle of propagation, at the end of each such cycle.
(4)
A new variety shall not be registered under this Act if the denomination given to such
variety-
(i) is not capable of identifying such
variety; or
(ii) consists solely of figures; or
(iii)
is liable to mislead or to cause confusion concerning the characteristics, value,
identity of such variety, or the identity of breeder of such variety; or
(iv) is not different from every
denomination which designates a variety of the same botanical species or of a closely
related species registered under this Act; or
(v) is likely to deceive the public or
cause confusion in the public regarding the identity of such variety; or
(vi) is comprised of any matter likely
to hurt the religious sentiments respectively of any class or section of the citizens of
India; or
(vii)
is prohibited for use as a name or emblem for any of the purposes mentioned in section
3 of the Emblems and Names (Protection of Improper Use) Act, 1950; or
(viii)
is comprised of solely or partly of geographical name:
Provided that the Registrar may
register a variety, the denomination of which comprises solely or partly of a geographical
name, if he considers that the use of such denomination in respect of such variety is an
honest use under the circumstances of the case.
Persons who may make application.
16. (1) An application for registration under section 14 shall be made by-
(a) any person claiming to be the breeder of the variety; or
(b) any successor of the breeder of the
variety; or
(c) any person being the assignee of
the breeder of the variety in respect of the right to make such application; or
(d)any farmer or group of farmers or
community of farmers claiming to be the breeder of the variety; or
(e) any person authorised in the
prescribed manner by a person specified under, clauses (a) to (d) to mall application on his behalf; or
(f) any university or publicly funded
agricultural institution claiming to be the breeder of the variety.
(2) An application under sub-section
(1) may be made by any of the persons referred to therein individually or jointly with any
other person.
Compulsory Plant variety denomination
17. (1) Every application shall assign
a single and distinct denomination to a variety with respect to which he is seeking
registration under this Act in accordance with the regulations.
(2)
The Authority shall, having regard to the provisions of any international convention
or treaty to which India has become a party, make regulations governing the assignment of
denomination to a plant variety.
(3) Where the denomination assigned to
the variety does not satisfy the requirements specified in the regulations, the Registrar may require
the applicant to propose another denomination within such time as may be specified by such
regulations.
(4) Not withstanding anything contained in the Trade Marks Act 1999, a denomination assigned to a variety shall not be registered as a trade mark under that Act.
Form of application.
18. (1) Every application for
registration under section 1,t shall-
(a)
be with respect to a variety;
(b) state the denomination assigned to
such variety by the applicant;
(c) be accompanied by an affidavit
sworn by the applicant that such variety does not contain any gene or gene sequence
involving terminator technology;
(d) be in such form as may be specified
by regulations;
(e) contain a complete passport data of
the parental lines from which the variety has been derived along with the geographical
location in India from where the genetic material has been taken and all such information
relating to the contribution, if any, of any farmer, village community, institution or
organisation in breeding, evolving or developing the variety;
(f) be accompanied by a statement
containing a brief description of the variety bringing out its characteristics of novelty,
distinctiveness, uniformity and stability as required for registration;
(g)
be accompanied by such fees as may be prescribed;
(h) contain a declaration that the
genetic material or parental material acquired for breeding, evolving or developing the
variety has been lawfully acquired; and
(i)
be accompanied by such other particulars as may be prescribed:
Provided that in case where the
application is for the registration of farmers' variety, nothing contained in clauses (b) to (i) shall apply in respect of the application
and the application shall be in such form as may be prescribed;
(2) Every application referred to in
sub-section (1) shall be filed in the office of the Registrar.
(3) Where such application is made by
virtue of a succession or an assignment of the right to apply for registration, there
shall he furnished at the time of making the application, or within such period after
making the application as may be prescribed, a proof of the right to make the application.
19. (1) Every applicant shall, along
with the application for registration made under this Act, make available to the Registrar
such quantity of seeds of a variety for registration of which such application is made,
for the purpose of conducting tests to evaluate whether seeds of such variety along with
parental material conform to the standards as may be specified by regulations:
Provided that the Registrar or any
person or test centre to whom such seed has been sent for conducting test shall keep such
seed during his or its possession in such manner and in such condition that its viability
and quality shall remain unaltered.
(2)
The applicant shall deposit such fee as may be prescribed for conducting tests
referred to in sub-section (1) .
(3)
Ale tests referred to in sub-section (1) shall be conducted in such manner and by such
method as may be prescribed.
20. (1) On receipt of an application
under section 14, the Registrar may, after is- making such inquiry as he thinks fit with
respect to the particulars contained in such application, accept the application
absolutely or subject to such conditions or limitations as he deems fit.
(2) Where the Regis~ is satisfied that
the application does not comply with the requirements of this Act or any rules or
regulations made there under, he may, either-
(a) require the applicant to amend the
application to his satisfaction; or
(b)
reject the application.
Provided that no application shall be
rejected unless the applicant has been given a
reasonable opportunity of presenting
his case.
21. (1) Where an application for
registration of a variety has been accepted absolutely or subject to conditions or
limitations under sub-section (1) of section 20, the Registrar shall, as soon as after its
acceptance, cause such application together with the conditions or limitations, if any,
subject to which it has been accepted and the specifications of the variety for
registration of which such application is made including its photographs or drawings, to
be advertised in the prescribed manner calling objections from the persons 3 interested in
the matter.
(2) Any person may, within three months
from the date of the advertisement of an application for registration on payment of the
prescribed fee, give notice in writing in the prescribed manner, to the Registrar of his
opposition to the registration.
(3) Opposition to the registration
under sub-section (2) may be made on any of the following grounds, namely:-
(a) that the person opposing the
application is entitled to the breeders right as against the applicant; or
(b) that the variety is not registrable
under this Act; or
(c) that the grant of certificate of
registration may not be in public interest; or