Abstract
Article 27.3(b) of the TRIPS Agreement provides that members shall provide for protection of plant varieties either by patents or by an effective sui generis protection or both. While WTO member countries can choose from among intellectual property strategies to protect plant varieties, they may not choose to exclude plant varieties from IP rights protection without facing trade sanctions from the WTO dispute resolution body. The open-ended language of the article creates a flexible standard of protection sympathetic to developing nations’ socio-economic priorities, provided that the effectiveness requirement is satisfied. This flexibility presents a range of possibilities from systems like the plant patent regime of the United States or specific variety protection systems of the European Union to the possibility of customized plant protection regimes suited to the needs of developing nations. India, while complying with the requirements of the TRIPS Agreement for the protection of plant varieties, enacted the Protection of Plant Varieties and Farmers’ Rights Act. The fundamental ideology of the PPVFR Act is to address India’s concerns about protecting the rights of small and marginal farming communities, while at the same time promoting plant breeding by vesting adequate IP rights protection which will boost further research and innovation in this field. This paper argues that as it is necessary to recognize and protect the rights of 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, the PPVFR Act has maintained a balance between breeders’ rights and farmers’ rights. The PPVFR Act protects farmers’ rights to save, use, exchange and share all farm produce, including seeds that fall within the purview of the Act, and it provides protection of indigenous knowledge against unwary monetization.
Highlights
Indian policy on plant varieties and seeds was based on the principle of the common heritage of mankind
India, being a World Trade Organization (WTO) member was required to adhere to the standards set out in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for the protection of plant varieties
Exercising the flexibility given under the TRIPS Agreement with regard to the defence for Plant Varieties Protection (PVP), India chose a sui generis structure to protect plant varieties with a view to balancing the interests of both breeders’ rights and farmers’ rights without succumbing to the pressures of developed countries to became a member of the International Union for the Protection of New Varieties of Plants (UPOV) Convention (1961) or to enact a law for plant varieties protection based on the UPOV model
Summary
Indian policy on plant varieties and seeds was based on the principle of the common heritage of mankind. Post-independence, Indian governments adopted a system wherein plant breeding activities were largely confined to the public sector post-independence to address national food security issues.. Post-independence, Indian governments adopted a system wherein plant breeding activities were largely confined to the public sector post-independence to address national food security issues.1 This policy to a large extent succeeded when at the end of the 1970s India achieved the milestone of transitioning from being an importer of foodgrains to achieving selfsufficiency in food.. India had to shift its age-old principle of common heritage and was obliged to provide protection to plant varieties either through patent or a sui generis system, or a combination of both. 1 N.S. Gopalakrishnan, An “Effective” Sui Generis Law to Protect Plant Varieties and Farmers’ Rights in India, 4(1) Journal of World Intellectual Property 157, 158 (2001)
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