Abstract

The Protection of Plant Varieties and Farmers Rights Act, 2001 (PPV&FR Act) is an Indian sui generis reaction to the requirements of Article 27.3(b) of the TRIPS Agreement, and is the only law in the world to combine rights of breeders, rights of farmers, community rights, and benefit-sharing practices into one statutory document. The paper takes a critical look at the legal and institutional issues that have cropped up during the operation of the Act over the last 25 years such as registration bottlenecks, doctrinal ambiguity in identifying essentially derived varieties (EDVs), weaknesses in DUS testing infrastructure, and poor performance of benefit-sharing provisions. The paper puts the context of the UPOV 1978 and 1991 Conventions, the TRIPS framework, and the plant variety protection systems of some jurisdictions, such as China, Kenya, the United States, the European Union and Australia, to discover the reform pathways in India. Cases in the judiciary and the administrative arena, especially the Monsanto-Nuziveedu patent case, the CCI cases with Mahyco Monsanto Biotech, the Sungro Seeds patent infringement case, and the PepsiCo FL-2027 potato scandal are examined in order to trace incomplete doctrinal tensions. The paper concludes that, although the statutory model used in India is one of the farmer-oriented models in the world, its potential has not been realised because of the loopholes in its implementation and suggests specific legal and policy amendments to address this gap.

1. Introduction

The Protection of Plant Varieties and Farmers Rights Act, 2001 stands alone in Indian legal history as the only statutory tool that aims to compensate plant breeders and at the same time protect the seed saving cultures of the smallholder. The Act was written under the pressure of India as a signatory to the TRIPS Agreement of the World Trade Organization, walking a fine line between the intellectual property requirements of the world and the need to support a largely agrarian-based economy based on food security and preservation of traditional knowledge.

Instead of following the ready-to-wear structure of the International Union to the Protection of New Varieties of Plants (UPOV) India enjoyed the policy freedom granted by Article 27.3(b) of TRIPS to develop a sui generis system that best suited its socio-economic circumstances. The resultant legislature is architecturally bold: it treats breeders, farmers, and tribal communities as rights-holders; introduces the registration of new, extant and farmers varieties; and benefits-sharing mechanisms that are based on the principles of the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

However, even with this forward-looking design, twenty-five plus years of operation has shown that there is an enduring and disturbing disconnect between legislative intent and real life. The thesis of this paper is that the PPV&FR Act, 2001 is an institutionally under-implemented conceptually sound piece of law, and that particular legal, administrative, and judicial reform is necessary to enable the Act to achieve its transformative potential.

2. Evolution of Plant Variety Protection: From UPOV to India's Sui Generis System

The concept of plant variety protection as a legal protection came into existence in the middle of the twentieth century, when systematic plant breeding started creating commercial value. Traditionally, it was the common heritage of humanity to treat plant varieties, as something freely cultivated, shared and enhanced by the farming communities. With commercial interests solidifying around proprietary breeding, national laws were enacted in Europe and North America, which would later lead to the International Convention for the Protection of New Varieties of Plants (UPOV), adopted in 1961. The Convention has been revised thrice, the most impactful version to the developing world being the 1978 and 1991 Acts.

The UPOV 1978 Act was generally seen as a pragmatic compromise: it allowed member states to authorise farmers to save and reuse seeds of varieties under protection (the farmers privilege) and also secured a wide research exemption that permitted breeders to create new varieties using germplasm under protection. The revision of 1991, however, gave much greater weight to the rights of breeders, extending protection to material harvested, introducing the idea of essentially derived varieties (EDVs) - blocking the reproduction with protected varieties as a parent germplasm without the original breeder's permission - and making the privilege of the farmers optional instead of compulsory.