Question 1. Farmers in developing countries particularly in India are very confused and do not understand the concept of intellectual property rights. Some people are misguiding them and creating panic and rumors that the patent law will prevent them from using seeds for cultivation. If you are an IPR expert how you will clear farmers\u2019 doubt about the patent law that it will not affect their livelihood and still they can use the seeds for cultivation as usual?<\/strong> The law on the subject is contained in the Protection of Plant Varieties and Farmers’ Rights Act, 2001 where the concept of Plant Breeders’ Rights has been provided legal sanction\/authority. There is undoubtedly a need to provide incentives to the Plant Breeders who are engaged in the creative work of research which sustains agricultural progress through returns on investments made in research and to persuade the researchers to share the benefits of their creativity with the society.<\/p>\n In fact, the law is meant to provide protection to the farmers’ rights over the inventions that they are able to come up with and disclose them for the benefit of the common public at large.<\/p>\n Question 2. Company ABC is a biotechnology-related company. It created a new organism by doing genetic manipulation with the traditional existing organism. Advice on the patentability of such genetic manipulation.<\/strong> The patent claims were of three types:<\/p>\n The Patent Examiner allowed the claims to fall into the first two categories but rejected the claim for bacteria. The decision rested on two grounds:<\/p>\n Later, the Patent Office Board of Appeals reiterated the examiners’ decision on the grounds that microorganisms do not fall within the ambit of patentable subject matter since they are living things.<\/p>\n TRI Ps supported the argument for the patenting of microorganisms in Article 27.3 of TRI Ps. It excludes two specific classes of subject matter from patentability:<\/p>\n TRIPS permits the patenting of the microorganism but does not define microorganism leaving member states to formulate their own standards relating to it. Indian Patent Act, 1970 through its Section 3 allows the patenting of microorganism and microbiological processes to be patentable.<\/p>\n Hence, India does not allow the patenting of microorganisms already in nature, but genetically modified versions of the same microorganism that result in enhancement of its called efficacies are patentable.<\/p>\n Question 3. Define the terms \u2018farmer\u2019 and \u2018farmers variety\u2019 under the Protection of Plant Varieties and Farmers\u2019 Rights Act, 2001. Explain the rights of the farmers envisaged under the Act briefly referring to relevant provisions.<\/strong> Section 2(k) of the Protection of Plant Varieties and Farmers Rights Ac. 2001 defines the term \u201cFarmer\u201d as \u201cfarmer\u201d means any person who-<\/p>\n Section 2 (I) of the Protection of Plant Varieties and Farmers\u2019 Rights Act, 2001 defines \u201cFarmers Variety\u201d as, \u201cFarmers Variety\u201d means a variety which-<\/p>\n Farmers\u2019 Rights: <\/strong>(Sections 39 to 46) of the Protection of Plant Varieties and Farmers\u2019 Rights Act, 2001 deals with the rights of the farmers. They are as under:<\/p>\n Section 39 – Farmers rights.<\/strong><\/p>\n Section 40 – Certain information to be given in the application for registration; <\/strong>A breeder or other person making an application for registration of any variety under Chapter III shall disclose in the application the information regarding the use of genetic material conserved by any tribal or rural families in the breeding or development of such variety.<\/p>\n Section 41 – Rights of communities: <\/strong>Any person or group of persons (whether actively engaged in farming or not) or any governmental or non-governmental organization may, on behalf of any village or local community in India, file in any center notified, with the previous approval of the Central Government, by the Authority, in the Official Gazette, any claim attributable to the contribution of the people of that village or local community, as the case may be, in the evolution of any variety for the purpose of staking a claim on behalf of such village or local community.<\/p>\n Section 42 – Protection of innocent infringement: <\/strong>A right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right; and<\/p>\n A relief which a court may grant in any suit for infringement referred to in section 65 shall not be granted by such Court, nor any cognizance of any offense under this Act shall be taken, for such infringement by any court against a fanner who proves, before such Court, that at the time of the infringement, he was not aware of the existence of the right so infringed.<\/p>\n Section 43 – Authorisation of farmers\u2019 variety: <\/strong>Where an essentially derived variety is derived from a farmers\u2019 variety, the authorization under sub-section (2) of section 28 shall not be given by the breeder of such farmers\u2019 variety except with the consent of the farmers or group of farmers or community of farmers who have made a contribution in the preservation or development of such variety.<\/p>\n Section 44 – Exemption from fees: <\/strong>A farmer or group of farmers or village community shall not be liable to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made thereunder.<\/p>\n Section 45 – General Fund; <\/strong>The Central Government shall constitute a Fund to be called the National General Fund for the welfare of farmers.<\/p>\n Section 46 – Framing of schemes: <\/strong>The Central Government shall, for the purposes of section 41 and clause (d) of subsection (2) of section 45, frame, by notification in the Official Gazette, one or more schemes.<\/p>\n Question 4. Enumerate the criteria for registration of a plant variety and the prerequisites for filing an application form for registration under the Plant Varieties Act, 2001.<\/strong> Novel:<\/strong> If at the date of filing an application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of in India earlier than one year or 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.<\/p>\n Distinct:<\/strong> A variety is said to be 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 application.<\/p>\n Uniform:<\/strong> A variety is said to be 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.<\/p>\n Stable:<\/strong> A variety is said to be 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.<\/p>\n Application For Registration Of A Varieties Can Be Made By:<\/strong><\/p>\n Application for registration of plant varieties can be made in the office of Registrar, Protection of Plant Varieties and Farmers\u2019 Rights Authority (PPV&FRA), New Delhi.<\/p>\n According to Section 18 of the Plant Varieties, Act, for registration of a plant variety the following prerequisites have to be completed:<\/p>\n The PPV& FR Act, 2001 provides for the exclusion of the following verities from registration under the Act:<\/strong><\/p>\n Read the following case study and answer the questions given at the end:<\/strong><\/p>\n RELMO S.A. (RELMO) is an Argentinean seed company belonging to the Ferrarotti family. The origins of RELMO are to be found in the Ferrarotti Countryside Organization (OFPEC) which was established in the 1960s as the first company in Argentina to devote itself to the genetic improvement of soybean.<\/p>\n The growth of RELMO in recent years is essentially based on license agreements linked to IP. It has been capable of negotiating licenses for its own varieties and those created by third parties to other companies in Argentina and abroad.<\/p>\n Based on this agreement, Sursem has taken over the responsibility of the distribution of seeds for RELMO in Argentina. Sursem will build upon the existing marketing structure of RELMO and improve its services to customers and distributors.<\/p>\n A strategic partnership approach through licensing and intelligent use of IP was the key factor behind RELMO\u2019s success.<\/p>\n While the national and international legal framework facilitated the task of ensuring the ownership of phylogenetic creations (varieties or lines), the partnerships helped RELMO move forward quickly and very actively in retaining and extending its domestic and foreign market positions.<\/p>\n Questions.<\/strong><\/p>\n Answer:<\/strong><\/p>\n 1. RELMO\u2019s ability to manage its Intellectual Property (IP) successfully can be assessed from the following:<\/strong> \u00a0Registration of trademarks:<\/strong> RELMO has registered over a dozen trademarks. Among them, the most important ones are RELMO, TECNOSOJA, TECNOTRIGO and TECNOMAIZ.<\/p>\n \u00a0Entering into Licensing Agreements Linked to IP:<\/strong> The growth of RELMO in recent years is essentially based on license agreements linked to IP. RELMO has been capable of negotiating licenses for its own varieties and those created by third parties to other companies in Argentina and abroad for example.<\/p>\n Agreement with the National Institute of Agriculture Technology (INTA) of Argentina:<\/strong> This unique public-private arrangement allows RELMO to market exclusively hybrids of maize developed by INTA, to produce hybrids with its own trademark, and also to license them out to third parties.<\/p>\n Licensing Agreement with the National Livestock Research Institute (INIA) of Uruguay:<\/strong> This was a special deal between INIA and RELMO which enabled RELMO to enter into exclusive rights over the licenses for INIA\u2019s wheat varieties in Argentina on a reciprocal basis for giving similar rights to INIA for its soybean varieties.<\/p>\n This license agreement allowed RELMO to enter into the wheat seed market with adapted varieties at a cost roughly equivalent to that of developing its own crops however at a much quicker pace. Through this agreement, RELMO expanded its sales structure and generated more revenue.<\/p>\n Licensing-out to South African companies:<\/strong> RELMO granted licenses in South Africa not only for its conventional varieties but also for RR varieties which enables the commercial exploitation of its varieties in South Africa.<\/p>\n Partnership with Delley Semenceset Plantes (Seeds and Plants) S.A. (DSP) of Switzerland:<\/strong> This agreement allowed RELMO to access the Argentinean markets with high-quality wheat varieties.<\/p>\n Integration with Suresam S.A.:<\/strong> This partnership strategy enabled small family business RELMO to retain not only its market position in Argentina but also provided it with improved plant varieties, access to foreign markets, and consequently higher revenue.<\/p>\n While the national and international legal framework facilitated the task of ensuring the ownership of phylogenetic creations, the partnership helped RELMO move forward quickly and very actively in retaining and extending its domestic and foreign market positions.<\/p>\n 2.<\/strong> The Argentinean Law No.20.247 on Seeds and Phylogenetic Creations, guarantees ownership of plant varieties, and the Argentinean Association of Protection for Plant Breeds (ARPOV) deals with the defense of rights and provides the possibility for collecting royalties for IP rights holders.<\/p>\n Therefore RELMO reached an agreement with Monsanto Argentina that authorized its use of the RR gene. This agreement also allowed RELMO to place its soybean varieties in other countries.<\/p>\n 3. <\/strong>RELMO S.A. is an Argentinean seed company belonging to the Ferrarotti family. RELMO was established in the 1960s as the first company in Argentina to devote itself to the genetic improvement of soybeans.<\/p>\n Agreement with the National Institute of Agriculture Technology (INTA) of Argentina: <\/strong>In 2002, RELMO concluded an agreement on technology transfer with INTA for the genetic improvement of the subtropical germplasm of maize.<\/p>\n Under the Agreement<\/strong>. INTA provides the germplasm, installations, and technical staff, and RELMO covers the operating expenditures.<\/p>\n The hybrids obtained are marketed exclusively by RELMO while INTA receives a percentage royalty as the owner of the germplasms. This unique public-private agreement also allows RELMO to produce the hybrids with its own trademark and also to license them out to third parties.<\/p>\n Licensing Agreement with the National Livestock Research Institute (INIA) of Uruguay: <\/strong>INIA and RELMO have a special deal under which INIA has granted RELMO exclusive rights over the licenses for INIA’s wheat varieties in Argentina.<\/p>\n It is in the best interest of both parties to make the variety as profitable as possible, and the commitment resulting from exclusive rights is considered to lead to the best market coverage possible.<\/p>\n Question 1 Write a short note on the constitution of the Protection of Plant Varieties and Farmers’ Rights Authority.<\/strong> Section 3 – Establishment of Authority:<\/strong> The Central Government shall, by notification in the Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority for the purposes of this Act.<\/p>\n The members of the Authority, to be appointed by the Central Government, shall be as follows, namely:-<\/p>\n The Registrar-General shall be the ex officio member-secretary of the Authority.<\/p>\n Section 4 – Meetings of Authority<\/strong>: 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 3 as may be prescribed.<\/p>\n Section 7 – Chairperson of be Chief Executive:<\/strong> The Chairperson shall be the Chief Executive of the Authority and shall exercise such powers and perform such duties as may be prescribed.<\/p>\n Section 8 – General functions of Authority:<\/strong> 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.<\/p>\n In particular, and without prejudice to the generality of the foregoing provisions, the measures referred to in subsection (1) may provide for<\/p>\n Section 11 – Power of Authority:<\/strong> In all proceedings under this Act before the Authority or the Registrar, The Authority or the Registrar may, subject to any rule made in this behalf under this Act, make such orders as to costs as it considers reasonable and any such order shall be executable as a decree of a civil court.<\/p>\n Section 12 – Registry and offices thereof<\/strong>:\u00a0 The Central Government shall establish, for the purposes of this Act, a Registry which shall be known as the Plant Varieties Registry.<\/p>\n The Authority may appoint such number of Registrars as it thinks necessary for the 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. There shall be a seal of the Plant Varieties Registry.<\/p>\n Section 13 – National Register of Plant Varieties:<\/strong> 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 be 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 varieties, 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.<\/p>\n Question 2 Write a brief note on infringement offenses, penalties, and procedures.<\/strong> Section 64 – Infringement:<\/strong> Subject to the provisions of this Act, a right established under this Act is infringed by a person-<\/p>\n Section 65 – Suit for infringement:<\/strong><\/p>\n Section 66 – Relief in a suit for infringement:<\/strong><\/p>\n Section 67 – Opinion of scientific adviser:<\/strong><\/p>\n Offenses, Penalties, and Procedure<\/strong><\/p>\n Section 68 – Prohibition to apply denomination of (25 of 1961) registered variety:<\/strong><\/p>\n Section 69 – Meaning falsely applying to denominate of (25 of 1961) registered variety:<\/strong><\/p>\n Section 70 – Penalty for applying false denomination, etc :\u00a0 <\/strong>Any person who<\/p>\n Section 71 – Penalty for selling varieties to which false denomination is applied, etc.: <\/strong>Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or production of any variety to which any false denomination is applied or to which an indication of the country or place in which such variety was made or produced or the name and address of the breeder of such variety registered under this Act has been falsely made, shall unless he proves-<\/p>\n Section 72 – Penalty for falsely representing (25 of 1961) variety as registered:<\/strong> Whoever makes any representation with respect to the denomination of a variety or its propagating material or essentially derived variety or its propagating material not being a variety or its propagating material or essentially derived variety or its propagating material registered under this Act, to the effect that it is a variety or its propagating material or essentially derived variety or its propagating material registered under this Act or otherwise represents any variety, or its propagating material, or essentially derived variety or its propagating material not registered under this Act to the effect that it is registered under this Act shall be punishable with imprisonment for a term, which shall not be less than six months but which 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.<\/p>\n Section 73 – Penalty for subsequent offence.-<\/strong> Whoever, having already been convicted of an offense under this Act is again convicted of such offense shall be punishable for the second and for every subsequent offense with imprisonment for a term which shall not be less than one year but which may extend to three years, or with fine which shall not be less than two lakh rupees but which may extend to twenty lakh rupees, or with both.<\/p>\n Section 74 – No offense in certain cases:<\/strong> The provisions of this Act relating to offenses shall be subject to the right created as recognized by this Act and no act or omission shall be deemed to be an offense under the provisions of this Act if such act or omission is permissible under this Act.<\/p>\n Section 75 – Exemption of certain persons employed in the ordinary course of business:<\/strong> Where a person accused of an offense under this Act proves that in the ordinary course of his employment, he has acted without any intention to commit the offense and having taken all reasonable precautions against committing the offense charged, he had, at the time of the commission of the alleged offense, no reason to suspect the genuineness of the act so charged as an offense and on demand made by or on behalf of the prosecutor, he gave all the information in his possession with respect to the persons on whose behalf the offense was committed, he shall be acquitted.<\/p>\n Section 76 – Procedure where the invalidity of registration is pleaded by the accused:<\/strong><\/p>\n Section 77 – Offences by companies:<\/strong>\u00a0 If the person committing an offense under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offense shall be deemed to be guilty of the offense and shall be liable to be proceeded against and punished accordingly:<\/p>\n Question 3 Write a short note on farmer rights.<\/strong> Farmers’ Rights (Chapter VI- Section 39 to 46)<\/strong><\/p>\n Section 39 – Farmer’s rights: Notwithstanding<\/strong>\u00a0anything contained in this Act,<\/p>\n Explanation.-<\/strong> For the purposes of clause (iv), “branded seed” means 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.<\/p>\n Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers or any organization of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organization of fanners, as the case may be, the expected performance under given conditions,<\/p>\n And if such propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organization of fanners, as the case may be, may claim compensation in the prescribed manner before the Authority and the Authority, after giving notice to the breeder of the variety and after providing him an opportunity to file an opposition in the prescribed manner and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organization of farmers, as the case may be.<\/p>\n Question.1 Mention the provisions related to \u2018Plant Varieties Protection Appellate Tribunal.<\/strong> Section 54- Tribunal:<\/strong> The Central Government may, by notification in the Official Gazette, establish a Tribunal to be known as the Plant Varieties Protection Appellate Tribunal to exercise the jurisdiction, powers, and authority conferred on it by or under this Act.<\/p>\n Section 55 – Composition of Tribunal:<\/strong><\/p>\n Section 57 – Orders of Tribunal<\/strong>:<\/p>\n Section 58 – Procedure of Tribunal<\/strong>:<\/p>\n Section 59 – Transitional provision.-<\/strong> Notwithstanding anything contained in this Act, till the establishment of the Tribunal under section 54, the Intellectual Property Appellate Board established under section 83 of the Trade Marks Act, 1999 shall exercise the jurisdiction, powers, and authority conferred on the Tribunal under this Act subject to the modification that in any Bench of such Intellectual Property Appellate Board constituted for the purposes of this section, for the Technical Member referred to in sub-section<\/p>\n Question 2. Discuss the Procedure of surrender and revocation of the certificate.<\/strong> Section 34 – Revocation of protection on certain grounds:<\/strong> Subject to the provisions contained in this Act, the protection granted to a breeder in respect of a variety may, on the application in the prescribed manner of any person interested, be revoked by (he Authority on any of the following grounds, namely:<\/p>\n
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\nAnswer:<\/strong> For the registration of a variety under the Plant Varieties Act, 2001 following criteria must be fulfilled:<\/p>\n\n
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Practical Questions<\/h2>\n
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\nAgreement with Monsanto Argentina<\/strong>: During the mid-1990s when Monsanto commercialized the RR gene in Argentina and RR gene-based plant varieties became popular among farmers, RELMO quickly realized that to retain its market position, it would have to market RR varieties too.<\/p>\n\n
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Short Notes<\/h2>\n
\nAnswer:<\/strong> Protection of Plant Varieties and Farmers’ Rights, Authority, and Registry. The provisions under the Protection of Plant Varieties and Farmers-Rights Act, 2001 on the subject of Protection of Plant Varieties and Farmers\u2019 Rights, Authority and Registry\u2019 are contained in Chapter II (Sections 3 to 13) of the Act. The relevant provisions thereof are reproduced herein below:<\/p>\n\n
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\nThe 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<\/p>\n
\nAnswer:<\/strong> Infringement, Offences, Penalties, and Procedure (Chapter X- Section 64 to 77)<\/p>\n\n
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Descriptive Questions<\/h2>\n
\nAnswer:<\/strong> Plant Varieties Protection Appellate Tribunal (Chapter VIII- Sections 54 to 59<\/strong>)<\/p>\n\n
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\nAnswer:<\/strong> Surrender and Revocation of certificate (Chapter V- Sections 33 To 38) Section 33 – Surrender of certificate of registration:<\/p>\n\n
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