(i)it is notified under section 5 of the Seeds Act, 1966;
(ii)farmers' variety;
(iii)a variety about which there is common knowledge;
(iv)any other variety which is in public domain.
There is no IPR about a variety which is in common knowledge and which is in public domain.
The category of farmer as defined under the Act is extremely wide.
Farmer means any person who:-
(i) cultivates crops either 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.
As a breeder, if any variety is cultivated then there will be an IPR but for farmer's variety there is no IPR. The main ingredients of this section are-
1.farmer's variety means a variety which:-
· is traditionally cultivated;
· is evolved by the farmers;
· is a variety about which the farmers possess the common knowledge.
This section is very general. This section exclude micro-organism.
Variety means a plant grouping:
(i)It is defined by the expression of the characteristics resulting from a given genotype of that plant grouping.
(ii)It is distinguished from any other plant grouping by expression of at least one of the said characteristics.
(iii)It is 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.
This section talks about registry of plants varieties. Registry is established by Central Government. Registrar is also appointed for this purpose.
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.
It is kept at the head office of the registry. The register shall be kept under the control and management of the Authority.
The register of plant variety contains-
· Names of all the registered plant varieties with the names.
· Names and addresses of their respective breeders.
· The right of such breeders in respect of the registered variety.
· The particulars of each registered variety.
· Its seeds or other propagating material along with salient features.
The registration of plant variety is done in order to prevent IPR of derived variety.
An application should be made to Registrar for registration of any variety. The variety to be registered is any:-
(a) genera and species.
(b) extant variety.
(c) farmers variety.
This section talks about the registrable variety, i.e., any new variety or extant variety shall be registered under the Act only if it has criteria of novelty, distinctiveness, uniformity and stability.
A new variety is novel if it has not been sold or disposed of before the date of filing of an application.
The variety should be distinct from any another variety. It should have one special characteristic feature. The variety should be uniform in its essential characteristics.
The variety should be stable, if its essential characteristics remain unchanged after repeated propagation.
A new variety shall not be registered if it:-
(i)is not capable of identifying such variety,
(ii)consists solely of figures,
(iii)is liable to mislead or to cause confusion concerning the characteristics,
(iv)is likely to deceive the public or cause confusion in the public regarding the identity of such variety,
(v)is likely to hurt the religious sentiments of citizens of India,
(vi)is prohibited for use as a name or emblem for any of the purpose,
(vii)is comprised of solely or partly of geographical name.
An application for registration made by-
(a) the breeder of the variety, or
(b) any successor of the breeder, or
(c) the assignee of the breeder, or
(d)any farmer or group of farmers, or
(e) to make application on his behalf.
(f) any university or publicly funded agricultural institution.
An application should contain:-
(a)name of variety,
(b) the denomination assigned to such variety by the applicant,
(c) affidavit sworn by the applicant that such variety does not contain any gene,
(d)it should be according to regulation,
(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 organization in breeding, evolution or developing the variety,
(f) it should contain statement of its characteristics of novelty, distinctiveness, uniformity and stability as required for registration,
(g) accompanied by such fees as may be prescribed,
(h)contain a declaration that the genetic material or parental material acquired for the breeding, evolving or developing the variety has been lawfully acquired.
A particular quantity of seeds should be made available to Registrar along with application. It should be provided for conducting test to evaluate the conformity of seed standard with the parental material.
After accepting the application by Registrar, the Registrar should advertise an application for objection. If any person will have an objection then he has to file it within three months. A copy of notice of the opposition should be served to an applicant by Registrar within two months. After receiving notice, an applicant should sent a counter-statement to the Registrar, then, Registrar should send the copy to the person giving notice of opposition. It is totally binding upon the Registrar to decide whether the registration should be permitted or not.
This section states that when the variety is registered then Registrar should issue certificate of registration to the applicant.
Total validity of variety are:-
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Trees And Vines |
18 Years |
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Extant Variety |
15 Years |
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Other Varieties |
15 Years |
· The Authority have to publish contents of the certificate and invite claims of benefit sharing to the variety registered.
· On invitation of the claims, any person or group of persons or non-governmental organization will submit its claim of benefit sharing.
· A copy of claim is sent to breeder of variety by the authority concern. After receiving the copy of claim, the breeder will send the opposition to such claim.
· The authority should mention the amount of benefit sharing while disposing claim.
· Two things authority has to take in consideration:
Ø The nature and extent of use of genetic material of claimant in development of variety.
Ø Market value and demand of variety.
1.This Act does not allow any person to use variety for conducting experiment or research.
2.This Act also does not allow any person to use variety as an initial source of variety for the purpose of creating other varieties.
Proviso of the Act states that the authorization of the breeder of a registered variety is required only when there is repeated use of such variety for commercial purpose.
Rights of farmers are:-
(i)a farmer who has bred or developed a new variety shall be entitled for registration and other protection under this Act,
(ii)a farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants is entitled for recognition and reward from the Gene Fund.
(iii)A farmer shall be deemed to entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety 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.
Branded seeds are defined under the Act as any seed put in a package or any other container and labeled in a manner indicating that such seed is of a variety protected under this Act.
Where any propagating material of a variety has been sold to a farmer or a group of farmers and it is disclosed by breeder of such variety to farmer that under given conditions the propagating material fail to provide such performance then farmer may claim compensation before the authority.
A claim can be filed by:-
(1)Any person, group of persons,
(2)Any governmental or non-governmental organization,
(3)Any village or local community in India.
A claim is filed for the evolution of any variety for the purpose of staking a claim on behalf of such village or local community.
The Centre notified for this purpose to report its findings to the Authority, which in turn may issue notice to the breeder of that variety.
The Authority may grant a sum of compensation to such people and that compensation shall be deposited by breeder in the Gene Fund.
What is Gene Fund?
Gene Fund is defined under the Act.
The Central Government has constituted a Fund which called as National Gene Fund.
It consists of:-
(a)The benefit sharing which is received from the breeder.
(b)The annual fee payable to the Authority by way of royalty.
(c)The compensation deposited under section 41.
(d)The contribution from national and international organization.
Authority has the power to grant license after the expiry of three years from the date of issue of a certificate of registration of a variety. A person has to make an application to the Authority alleging that the reasonable requirements of the public for seeds or other propagating material of the variety have not been satisfied, the demands of the public are not fulfilled and that demand is satisfied because of the reason of increase in price. The authority then orders such breeder to grant a license to the applicant.
What is the duration when compulsory license is obtained?
The duration of the compulsory licenses shall be determined by the authority. Such duration may vary from case to case but in any case, it should not exceed the total remaining period of the protection of that variety.
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54 |
Tribunal |
The Central Government has established a Tribunal known as the Plant Varieties Protection Appellate Tribunal. |
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55 |
Composition of Tribunal |
Tribunal consist of a Chairman, JudicialMembers and Technical Members as the Central Government may deem fit to appoint. |
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56 |
Appeals to the Tribunal |
From the order of decision of Authority orRegistrar, the appeals are made to tribunal within prescribed period. |
Infringement to variety can be caused by any person.
(a)The person who is not the breeder of a variety registered or a registered agent or registered licensee of that variety.
(b)That person uses, sells, exports, imports or produces such variety without the permission of its breeder.
(c)That person has produced, use, sell other variety similar or identical to the denomination of a variety registered.
(d)This Act is done by the person to cause confusion in the mind of general people in identifying the variety.
No suit shall be filed for the infringement of a variety registered under this Act, or relating to any right in a variety registered under this Act. The suit shall be instituted in any court inferior to a District Court but within the local limit of whose jurisdiction the cause of action arises.
The relief which is granted by court in suit for infringement includes injunction and at option of the plaintiff, either damages or share of the profits.
Penalties under the Act are as follows:-
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70 |
Penalty for applying false denomination. |
Imprisonment for a term which shall not be less than three months but which may extend to two years or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees or both. |
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72 |
Penalty for falsely representing a variety as registered. |
Imprisonment for a term, which shall not be less than six months and may extend to three years, or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with both. |
It takes 1000 years to create a new variety of plants. So, Gene Pool is diversified. Innovations are made and many varieties appear or disappear. It is necessary for a human being that we should not disturb our nature i.e., our Gene Pool. Our environment should be free from pollution and human beings should not imbalance nature by doing various harmful activities. If we interfere with our nature, it will get disturbed and our new varieties will get toxins and will disappear day-by-day.
Preamble of the Act is dietary in nature. It provides for conservation of biological diversity which is an essential part of our environment. It also provides for sustainable/efficient use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and other matters related to biological diversity.
The knowledge of local communities, farmers, and indigeneous people on how to use the many forms and type of biological resources and also how to conserve these resources is now been recognized as critical to future development and even survival of human kind.
Therefore, for the development and survival of human beings the role and importance of traditional knowledge is extremely important. Traditional knowledge is to be maintained in social and economic context in which it develops and is applied has to be maintained. The rights of local communities to their resources and knowledge have to be recognized and respected. Their views should be taken to utilize the resources. Misappropriation of these rights can erode the paces of traditional knowledge and thus adversely affect the prospects of sustainable development.
Bio Piracy means misappropriation of traditional biodiversity knowledge by multinationals, research institutes and breeders. In concept of bio piracy, countries, mainly the developed countries, are giving patents to genetically modified organisms. In many cases, patents on living organisms is also being given. It is important to note that companies are being given patents on genes extracted from a plant variety. That means by indulging in Bio piracy companies are decoding and identifying the best plant genes, and thereby creating monopoly rights over such genome. The development of many varieties of world staple foods like wheat, rice, maize, oats, etc., have been carried out by the farmers in developing countries over the generations through cross breeding. The multinational companies are using the traditional knowledge of communities and extracting genes and patenting such genome maps for their own benefits.
Bacillus thuringiensis is a naturally occurring soil bacterium which produces a protein fatal to many insects that consumes it. It has been used as a biological pesticide by farmers since 1940's. Companies have now genetically engineered the bacillus thuringiensis gene in crops including maize, soyabean, cotton, potato, rice so that the plants produce their own insecticides. By granting patent to bacillus thuringiensis gene, a bio piracy element is introduced in patents. Moreover, these types of crops are environmentally harmful. In studies at Cornell University USA it was shown that pollen from bacillus thuringiensis maize killed Monarch Butterfly Larvae that ingested in laboratory conditions.
Section 2 of the Biological Diversity Act, 2000 is about various definitions.
Section 2(b) - "Biological Diversity" means the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-system.
Section 2(a) - Defines "Benefit Claimers". All tradition knowledge holders communities come under benefit claimers category.
Section 2(c) - "Biological Resources" means plants, animals and micro organisms, their genetic material and by products. E.g., Cheese, curd etc., with actual or potential use or value, but does not include human genetic material.
Section 2(o) - "Sustainable Use" means the use of components of biological diversity in such manner that does not lead to long-term decline of the biological diversity and maintaining its potential to meet the needs and aspirations of future generations.
Section 2(p) - Defines "value added products" which means those products which contain extracts of plants and animals in unrecognizable and irreparable form. E.g. Jelly, silk, mushroom, etc.
Section 3 - "Regulation of Biodiversity Authority"- Without the approval of National Biodiversity Authority, persons cannot undertake Biodiversity related activities. They have to seek permission from the National Biodiversity Authority.
-A person who is not a citizen of India.
-A citizen of India who is non-resident.
-A body Corporate, association or organization which is not incorporated in India or is incorporated in India which has any non- Indian participation in its share capital or management.
Section 6 - Application for Intellectual Property Rights not to be made without approval of NBA.
It is mandatory to get approval from NBA for any Intellectual Property Right for any research or information on biological resource.
NBA also grants royalty, fee or share in profit arising from commercial utilization of rights.
Section 7 - Intimation to State Biodiversity Board for obtaining Biological Resource for commercial or any utilization, it is also necessary to give prior intimation to State Biodiversity Board. The provision of this section does not apply to local people and communities of area, cultivators, vaids, hakims, who have been practicing indigeneous medicine.
Section 8 - The head office of National Biodiversity Authority is at Chennai and it consist of Chairperson and 15 other members.
Section 13 - Committee of NBA deals with Agro- Biodiversity which means biological diversity of agriculture related spices and their wild relatives.
Section 18 - Of the Act talks about functions and powers of NBA i.e., to issue guidelines for access to biological resources and for fair and equitable benefit sharing. NBA also advise the Central Government on conservation of biodiversity, sustainable use of its components and equitable sharing of benefits, etc.
NBA on behalf of Central Government also take measures to oppose the grant of intellectual property rights outside India on biological resource which is obtained from India or derived from India.
Section 19 - To obtain any biological resource or a patent or any other form of intellectual protection, any person should make an application to NBA and should get its approval.
Section 20 - Once the biological resource or knowledge is obtained with approval of NBA then no person can transfer it to any other person except with the permission of the NBA.
Section 21 - Determination of equitable benefit sharing by NBA- It ensures that the terms and conditions on which approval is granted secures equitable sharing of benefits arising out of the use of biological resources, products between benefit claimers, persons who apply for approval, etc.
Manner in which it gives effect are:
Ø Grant of joint ownership of Intellectual Property Rights to NBA or where benefit claimers are identified to such benefit claimers.
Ø Transfer of technology.
Ø Location of production, research and development units in areas which facilitate better living standard to benefit claimers.
Ø Association and unity among benefit claimers, Indian Scientists and the local people. Their views should be taken in production.
Ø Funds are collected for aiding benefit claimers.
Ø Payment of monetary compensation and non-monetary benefits to benefit claimers as NBA may deem fit. Compensation is paid to benefit claimers if any wrong is done to them.
This chapter talks about State Biodiversity Board. It is established under section 22 of the Act. The main aim of State Biodiversity Board is to assist National Biodiversity Board in granting intellectual property rights and benefit sharing of benefits arising out of use of biological resources, their products, etc.
Section 23 talks about functions of State Biodiversity Board which is almost similar to National Biodiversity Board.
This chapter talks about Finance, Audits and Accounts of NBA and State Biodiversity Board respectively, for which an accountant is hired who maintains register of all biological resources which are sold and purchased and calculated the profits for NBA and State Biodiversity Board. Accountant also has to maintain account books/registers and should give details to NBA and State Biodiversity Board time to time.
Section 36 - Central Government should develop National Strategies, plans, etc., with the consultation of benefit claimers, local people and Indian scientists for conservation of biological diversity and sustainable use of biological resources.
Section 37 - Central Government and State Government should establish biodiversity heritage sites for local people, benefit claimers, etc.
Section 38 - Central Government has power to notify the threatened species which are part of biological resources and they should be notified under the Act.
Section 39 - Central Government also has power to designate repositories.
Local body constitutes a Biodiversity Management Committee within its area for various purposes.
1.For promoting conservation.
2.Sustainable use of biological resources.
3.Documentation of biological diversity including preservation of habitats.
4.Conservation of landrace.
5.Conservation of folk varieties and cultivators.
6.Conservation of domesticated stocks.
7.Conservation of breeds of animals.
8.Conservation of micro-organisms.
9.Chronicling of knowledge relating to biological diversity.
Chapter XI of the Act deals with Local Biodiversity Fund. Sections 42 and 43 of the Act deals with grants to local biodiversity fund and constitution of local biodiversity fund. The main purpose of local biodiversity fund is to follow rules and regulations framed by State biodiversity fund and Biodiversity Management Committee. Local biodiversity fund is bound by these Committees and should assist them in any manner. The main motive of local biodiversity fund is to collect funds for local people for preservation of biological resources and sustainable use of biological resources.
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National Biodiversity Authority ¯ State Biodiversity Authority ¯ Biodiversity Management Committee ¯ Local Biodiversity Fund |
If a dispute arises between the National Biodiversity Authority and a State Biodiversity Board then the appeal relating to said dispute will be taken to the Central Government. The dispute can be related to any matter. If a dispute arises between State Biodiversity Board and Biodiversity Management Committee or Local Biodiversity Fund, then the dispute shall be referred by Central Government to National Biodiversity Authority.
Any person who is aggrieved by any determination of benefit sharing or order of National Biodiversity Authority or a State Biodiversity Board may file an appeal to the High Court.
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Section |
Imprisonment |
Fine |
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Section 3 |
Imprisonment which mayextend to 5 years or |
With fine of Rs. 10 lakh or both. |
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Section 4 |
Imprisonment which mayextend to 5 years or |
With fine of Rs. 10 lakh orextend to 5 years orboth |
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Section 6 |
Imprisonment which mayextend to 5 years or |
With fine of Rs. 10 lakh orextend to 5 years orboth |
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Section 7 |
Imprisonment which mayextend to 5 years or |
With fine of Rs. 3 lakh or bothextend to 3 years or |
Cognizance of offences - No court shall take cognizance of any offence under the Act except on complaint made by,-
1.Central Government.
2.Any benefit claimer who has given notice for not less than 30 days of such offence and he has an intention to make complaint to Central Government and take the matter to Central Government or the authority or officer authorized on behalf of Central Government.
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