FAQs on PPV&FR Act, 2001

General

Why protection of plant varieties has become an important issue?

The breeding activities and exploitation of new varieties are the decisive factors for improving rural income and their overall economic development. Since the process of plant breeding is long and expensive, it is important to provide an effective system of plant variety protection with an aim to encourage the development of new varieties of plants for the benefit of society.

What is a variety?

Variety means a plant grouping except micro-organism within a single botanical taxon of the lowest known rank, which can be-

1. defined by the expression of the characteristics resulting from a given genotype of that plant grouping.
2. distinguished from any other plant grouping by expression of at least one of the said characteristics; and
3. considered as unit with regard to its suitability for being propagating, which remain unchanged after such propagation, and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety.

What are Essentially Derived Varieties (EDV)

EDV means a variety which has been essentially derived from existing variety by any of the following means:

1. Genetic Engineering
2. Mutation
3. Tissue Culture Derived
4. Back Cross Derivative
5. Any other (Ploidy change etc.)

EDV is clearly distinguishable from such initial variety; and 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 genotype of such initial variety.

What is the definition of a farmer in the PPV & FR Act?

Farmers means a person who

• cultivates crops by cultivating the land himself; or
• cultivates crops by directly supervising the cultivation of land through any other person; or
• Conserves and preserve, severally or jointly, with any person any wild species or traditional varieties through selection and identification of their useful properties.

What is a Farmers’ Variety?

A variety which

• has been traditionally cultivated and evolved by the farmers in their fields; or
• is a wild relative or land race or a variety about which the farmers possess the common knowledge.
• Farmer’s variety is exempted from application/registration fees and his application need not be accompanied with fees, affidavit for terminator technology.

What are Farmers’ rights?

1. Farmer who has bred or developed a new variety shall be entitled for registration and other protection under PPV&FR Act, 2001 in the same manner as a breeder of a variety.
2. Farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund provided that material so selected and preserved has been used as donors of genes in varieties registered under this Act.
3. Farmer shall be entitle to save, use, sow, re-sow, exchange and share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Can a new and distinct plant found growing in nature be protected?

As such those plant varieties present in wilderness cannot be registered, under PPV&FR Authority. However, any traditionally cultivated plant variety which has undergone the process of domestication /improvement through human interventions can be registered and protected subjected to fulfilment of the eligible criteria.

What are the characteristics which may be used for distinguishing a variety?

The new variety should be distinct from the other varieties for at least one essential characteristic. What are the prerequisites for filing an application form for registration of plant variety? For registration of a plant variety the following prerequisites has to be completed:

• Denomination assigned to such variety.
• Accompanied by an affidavit that variety does not contain any gene or gene sequences involving terminator technology.
• Complete passport data of parental lines from which the variety has been derived along with its geographical location in India and all such information relating to the contribution if any, of any farmer (s), village, community, institution or organization etc in breeding, evolving or developing the variety.
• Characteristics of variety with description for Novelty, Distinctiveness, Uniformity and Stability.
• A declaration that the genetic material used for breeding of such variety has been lawfully acquired.
• A breeder or other person making application for registration shall disclose the use of genetic material conserved by any tribal or rural families for improvement of such variety.

What is the difference between the Seeds Act, 1966 and PPV&FR Act, 2001.

Seeds Act, 1966, Seeds Rules 1968 with Seeds (Control Order) 1983 are the legal instruments for regulating the production, distribution and the quality 14 certain seeds for sale and for matters connected therewith, whereas the PPV&FR Act, 2001 grants the proprietary ownership of the variety to the plant breeders and farmers for their varieties. Intellectual Property Rights are the private rights which confer to the legitimate owners exclusive rights to produce, sell, market, distribute, import or export the variety registered under the PPV & FR Act.

Can a plant variety be protected under the Patent Law in India?

No, Plant variety cannot be patented in India.

What is difference between patent and PPV&FR Act?

A patent deals with IPR over devices of Industrial applications whereas PPV & FR Act, 2001 confers IPR to plant breeders who have bred or developed plant varieties. A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention. The PPV&FR Act, give rights to farmers, breeders and researches besides giving protection to varieties of all crop species which are notified under the Act. There is also provision for benefits sharing, compensation to the farmers, recognition and award to the farmers for supporting conservation and sustainable use of plant genetics resource.

Application process

What is the duration of protection of a registered plant variety?

The duration of protection of registered varieties is different for different type of crops which are as below:

1. Trees and vines - 18 years.
2. For other crops - 15 years.
3. For extant varieties notified - 15 years from the date of notification under section 5 of the Seeds Act, 1966.

Is there any time limit for filing the varieties for registration under Extant Category

Yes, the time limit is usually fixed by the Authority for 6 years for Extant varieties(other than Farmer Varieties) and 10 years for Registration of Farmers Varieties from the date of publication of approval of Authority in PVJ.

The application for registration of a variety is to be made in the form prescribed in the PPV & FR Regualtions,2006.

1. Form I - for registration of new variety, extant variety and farmer’s variety and 2.
2. Form II - for essentially derived varieties (EDVsPPV&FR Act, 2001 6
3. Technical Questionnaire attached with Form 1/ Form II – for detailed information of the concerned variety. These filled application forms must be accompanied by the registration fee as notified.

Who can apply for the registration of a plant variety?

Application for registration of a variety can be made by:

1. any person claiming to be the breeder of the variety;
2. any successor of the breeder of the variety;
3. any person being the assignee or the breeder of the variety in respect of the right to make such application;
4. any farmer or group of farmers or community of farmers claiming to be breeder of the variety;
5. any person authorized to make application on behalf of farmers and
6. any University or publicly funded agricultural institution claiming to be breeder of the variety.

Which is the office for making application for the registration of plant varieties?

Application for registration of plant varieties can be made in the office of Registrar, PPV&FRA, New Delhi. The address of the Office is: Registrar, Protection of Plant Varieties and Farmers’ Rights Authority, Govt. of India, Ministry of Agriculture & Farmers Welfare, Society Block, 2nd Floor, NASC Complex, DPS Marg, Opposite Todapur, New Delhi – 110012. Also any information regarding the protection, application, fee structure, etc. can be obtained from this office.

Completed forms in triplicate, with fee/charges should be submitted to the Registrar with all enclosures, TQ, affidavits in New Delhi Office or can be sent by Registered Post. Five branch offices have also been opened one at Guwahati (Assam), Ranchi (Jharkhand), Palampur (Himachal Pradesh), Shivamogga (Karnataka) and Pune (Maharashtra) to facilitate the applicants.

Can an application for registration of plant varieties be made through an agent?

Yes, a breeder or a farmer can apply for registration either in person or through his agent.

Is it necessary to submit the seed / propagating material before registration?

Yes, the breeder shall be required to deposit the seed or propagating material including parental line seeds of registered variety to the Authority. An applicant has to submit a fixed amount of seed sample (breeder seed) with prescribed germination percentage, physical purity and phyto-sanitary, 7 standards. The applicant shall also submit along with the seed/propagating material the seed quality test report.

What is done with the seeds received by the Authority?

The seed samples received by the Authority will be properly tested for its purity and germination. A part of the seed sample sent to the test centre for conduct of DUS tests and a part of is kept by the Authority in the National Gene Bank to maintain the seed samples of the registered varieties for their entire period of protection. Can a person apply for registration of a variety which is already in the market? Any variety which is already in the market, but not for more than a year, can be applied for registration as a new variety. Other older variety can be applied for registration as Extant Variety.

What is the cost of registering a plant variety?

The fee structure as defined by the PPV&FR Authority is as below:

A.Registration charges

B. DUS test fee

Details available at website of Protection of Plant Varieties and Farmers’ Rights Authority

C. Annual Fee

Annual fee shall be determined on the basis of declaration given by the registered breeder or agent or licensee regarding the sales value of the seeds of the variety registered under the Act during the previous year and royalty, if any, received during the previous year from the sale proceed of seeds of the registered variety and verified by the Authority. For updates, please check the website of Protection of Plant Varieties and Farmers’ Rights Authority

What are the exemptions provided under the PPV & FR Act, 2001?

1. Farmers’ Exemption: Farmer shall be entitled to produce, save, use, sow, re sow, exchange, share or sell his farm produce including seed of a variety protected under this Act.
2. Researcher’s Exemption:

• the use of registered variety for conducting experiment.
• the use of variety as an initial source of variety for the purpose of creating other varieties.

What are the acts of infringement of the rights provided to the registered breeder under the Act?

Following acts may be a case of infringement under the PPV&FR Act:

1. If a person who is not a breeder of a variety registered under this Act, or a registered agent or a registered licensee of that variety, sells, exports, imports or produces such variety without the permission of its breeder or within the scope of a registered license or registered agency without their permission of the registered license or registered agent.
2. If a person uses, sells, exports, imports or produces any other variety giving such variety, the denomination identical with or deceptively similar to the denomination of a variety already registered under this Act, in such a way that it causes confusion in the mind of general people in identifying the registered variety.

Is there any punishment if any person falsely represents a variety as a registered variety?

If any person falsely represents a variety as a registered variety then he shall be punishable with imprisonment for a term not less than six months which can be extended up to three years or with a fine not less than Rupees one lakh which may be extend to Rupees five lakhs, or with both.

What species can be protected?

The Central Government has notified the following crops with their genera and species eligible for registration as new varieties.

List of 147 Crop species open for registration under New/Extant/Farmers Variety.

Is there any provision of onsite testing of trees and vines?

Yes, the applicant has an option for on site testing and the fee prescribed will not exceed four times the fee prescribed for normal DUS test. The details of fees is available on PPV&FRA Website(www.plantauthority.gov.in).

What is the provision for special test?

The special tests shall be conducted only when DUS testing fails to establish the requirement of distinctiveness. The DUS testing shall be field and multi-location based for at least two crop seasons and special tests be laboratory based. The Authority shall charge separate fees for conducting DUS test and special test on each variety. The fee for DUS and special tests shall be such as provided in column (3) of the Second Schedule for the purpose.

How to get information about General and Specific Guidelines for DUS Testing?

"The General and Specific Guidelines for DUS Testing of 147 notified crop species are available in various issues of Plant Variety Journal of India. The PPV&FR Authority in its 28th Meeting held on 22.11.2017 has decided that the printing and circulation of hard copies of Plant Varieties Journal should be dispensed with effect from December, 2017 and thereafter with effect from January, 2018, the Plant Varieties Journal will be uploaded in the website of the PPV&FR Authority with the digital signature of the Registrar."

From which date the PPV&FR Authority starts receiving applications for Registration of Plant Varieties?

The PPV&FR Authority started receiving applications for Registration of Varieties of 12 notified crop species from 21st May, 2007 and at present the Authority is accepting the applications for 147 notified crops species. List available on PPVFRA Website.

What are the Business Hours for receiving application and seed samples?

The Business Hours for receiving application and seed samples in the office of Registrar PPV&FR Authority are as under:

Is there any relaxation in purity standards and requirement of seed for test?

The numbers of off types for farmers’ varieties shall not exceed double the number of off types prescribed for a new variety. The seed required is half of the quantity prescribed for the new variety.

What are the guidelines for submission of applications for Registration of Plant Varieties?

The guidelines for submission of applications for Registration of Plant Varieties are as under:

1. Every application must be submitted in triplicate and signed by the applicant or their representative. Application should be submitted in hard copy along with all essential requirements by hand/ by post till further notice.
2. Applications will be received from Monday to Friday (working days) from 10:00 Hours to 15:00 hours.
3. Every application must have the name of the applicant, their address and nationally as well as the address of service of their agent (if Applicable).
4. The office of the Registrar shall issue acknowledgment receipt and number which shall be used for all future references including the checking of the status of application.
5. The Application will be received on “first come first serve” basis.
6. No applications will be received after business hours.
7. After submission of application, it will be processed according to the provisions of the Rule 29(2) of the PPV&FR Rules, 2003.

Yes, the procedure for obtaining plant variety registration is same for Indian citizen and foreigners. However, foreign applicant must furnish their address for service in India while applying for plant variety registration.

Can the applicant ask for the stored seed sample(s) in case of an infringement.

The stored seed sample will be furnished only in case of compulsory license and in case of infringement it will be furnished only on the order of the Hon’ble Court and not otherwise.

What are the requirements for a foreign company to have registration of their varieties in India?

Only one condition is required the foreign company has to furnish an address for service in India. Apart from this no other requirement is needed.

Can a (foreign) applicant claim priority right for an application in other country(ies) if the first application was filed in India?

If it is a convention country then the applicant can claim priority right otherwise no

Can a (foreign) applicant claim priority right for an application in India if the first application was filed in another country?

No. The priority can be claimed only if the country in which the application has been filed is a convention country.

How can the applicant check the real time status of the application at the authority?

The details and status of the application can be checked in the website of Protection of Plant Varieties and Farmers’ Rights Authority.

Is there a maximum period from date of application to finalisation of the procedure?

Yes, it is three years from the date of filing of the application but however the application will be processed and registered much earlier if application is complete in all respects and seeds and documents are deposited on time.

The authority is asking to submit parental lines in case of an application of the hybrid. Do you check whether these lines are the correct ones?

No the Authority does not check. It accepts the declaration given by the registered breeder in this regard. No checking or verification is done.

What are the additional provisions for registration of EDVs in specific transgenic varieties?

EDV can also be registered. However in case of transgenic varieties clearance from GEAC have to be obtained for commercial cultivation.

For each species there are multiple DUS testing stations identified. Can the applicant indicate a preference for one (or two) of the DUS testing stations? Will the applicant be informed?

Yes the applicant can indicate and the applicant will be informed of the same.

Is it true that the DUS test will always be performed at two different DUS testing stations? Is this also true for those species with only one year of testing? If so, what happens if the results of the two stations is (slightly) different, for instance because of the climatic influence?

It is true that DUS test will always be performed at two different DUS testing stations but it is also true for extant varieties for one year testing. However, the second centre is only for back up purposes and if any inconsistency arises the data of main centre will be relied upon. Further the main centre is chosen based on the point that where the candidate variety can express its potentiality to the maximum.

At what moments will the applicant be informed of the progress in the DUS procedure?

Once the initial scrutiny of the application is over the applicant will be informed of the progress in the DUS procedure.

Is there a possibility for the applicant to visit the DUS test of his own variety?

Yes the applicant can monitor his DUS test and can make suggestions and representations.

Is there a possibility for breeders to visit the DUS tests of other varieties under application (or to see the application forms) to avoid applications that are not entered by the true breeder?

Yes this is also possible.

What are the provisions to safeguard breeder’s interest against misuse/ infringements of material under the Act effective from the date of filing to post grant?

Safeguard is provided both during pendency of registration and after registration. During pendency of registration there is provisional protection and after registration there is provision for infringement whereby the infringing materials are seized by the Court and compensation is granted to the registered breeder. Further criminal remedies are also provided for violation of rights of registered breeder.

Under the farmer’s exemption the farmer shall be entitled to produce, save, use, sow, re sow, exchange, share or sell his farm produce, but he is not entitled to sell branded seed. What is the definition of branded here? Is this referring to seed certification or to the use of a protected trademark or to the use of the variety denomination?

Branded Seed means any seed put in a package or container indicating that it is protected under the law. It does not refer to seed certificate or use of protected trade mark. Further use of registered denomination by any person other than registered breeder or his agent or his licensee is not allowed.

Is this farmer’s exemption also applicable to vegetatively multiplied species? What is meant in this regard with branded seed? Take for example chrysanthemum cuttings. What sort of selling by the grower of self-reproduced cuttings would not be allowed under this farmer’s exemption?

Yes farmers exemption is also applicable to vegetatively multiplied species. Here branded seed would mean propagating material put in a package or container indicating that it has protected under the Act. If the grower, uses the registered variety or its denomination without the permission of the registered breeder and brands the registered variety with another or same denomination or applies the registered denomination to unregistered variety then it is prohibited. What is allowed under farmers rights is only use of registered variety in a small scale in an unbranded manner.

Source : Protection of Plant Varieties and Farmers’ Rights Authority