Protection and Enforcement of Plant Variety Rights

September 22, 2020

New creation of an idea, such as – book, music, or any utility articles can be protected under IPR (Intellectual Property Rights). Similarly, new plant varieties can be protected under the same IPR segment of law. A new plant variety is defined by the expression of the unique characteristics resulting from a genotype or combination of genotypes. In last two decades, people are working on development of asexual breeding of plant variety for various purposes, such as overall yield of plant parts, disease resistant plant. Researchers are motivated by several countries by allotting legal rights to the new plant products. Such encouragement is necessary to improve productions as well as quality of plants. Plant Variety Rights (PVRs) or Plant breeders’ rights (PBRs) are internationally recognized intellectual property rights that provide protection to new plant varieties along with exclusive control over the propagating material and the harvested material of the new plant varieties for a number of years. PBR allows the holders to practice the rights for selling, producing, reproducing the plant, importing, exporting, conditioning and storing the plant variety; apply the rights against the unauthorized case, for example using propagating material. This serves as a shield for protected plant variety from being sold by individuals or companies and seek civil recourse against; and receive royalties to be fairly compensated to recover the initial investments.

To get approval on PBR filing of a new plant variety, one must fulfill certain basic requirements such as the new plant variety should not be commercialized or cultivated for more than one year in the country of protection; the plant variety should imply different genetic characteristics regarding its traits like color, height or size; the variety should have stable genetic characteristics from one generation to the next generation, even after the reproducing cycle in the case of hybrid plant variety production.

Apart from these basic requirements, some international agencies have enforced legal aspects on PBR filing of a new plant variety. For instance, a Geneva based International Union for the Protection of New Varieties of Plants (UPOV) was established in 1961 by the International Convention for the protection of new plant varieties. The convection was revised in the years – 1972, 1978 and 1991. Its aim is the provision and promotion of an effective system for the protection of plant variety, along with encouragement for the development of new varieties of plants, that can provide benefit to the society. The UPOV Convention sets out the basis for UPOV members to provide Plant Variety Protection (PVP) by granting an intellectual property right- the breeder’s right. To obtain such right for a new plant variety, one can file an application for registration of the plant variety with the national or regional PVP Offices of UPOV members.

Additionally, Community Plant Variety Rights System (CPVR system) was created by European Union (EU) as an autonomous system for the protection of new plant varieties with a unitary effect throughout the Europe. The CPVR system coexists with the national laws of the EU Member States on plant variety protection, but the cumulative protection is prohibited. A plant variety being the subject matter of CPVR cannot be the subject matter of national plant variety right and vice versa.

In USA, the Plant Variety Protection Office (PVPO) grants intellectual property protection certificate for new plant variety’s seeds, tubers, and asexually propagated plant material. In 2018, PVPO was amended to include asexually propagated plants, which was not part of the act formerly. In USA, the legislative situation related to the protection of plants and plant varieties is different from the EU. In the USA, breeders can protect their new plant varieties by any one of three types of intellectual property rights, which are – Plant Variety Protection by PVPO; Plant Patents and Utility Patents issued by USPTO (United States Patent and Trademark Office) for genes, traits, methods, plant parts, or varieties.

In India, the ‘Plant Variety Protection and Farmers Rights Act (PPVFRA) 2001’ was established for providing an effective protection system for plant breeder’s rights and plant varieties. Under this act, any domesticated traditionally cultivated plant variety through human interventions can be registered for protection.

The UPOV Convention provides a minimum term of protection for plant varieties of 20 years from the date of grant of the PVR. The minimum duration of protection has been extended to 25 years for trees and vines. At EU level, the CPVR protection runs for a period of 25 years for all plant species except trees, vines and potatoes, which have a period of 30 years. Just like any other form of intellectual property it also requires annual maintenance fees. In India, PVR protection is granted for 18 years for trees and vines (perennials) from the date of registration and for other crops 15 years from the date of registration of the variety and for extant varieties 15 years from the date of notification of that variety by the Central Government under section 5 of the Seeds Act, 1966.

The production of improved crop or plant varieties is an essential need. The plant varieties face certain challenges to fulfill considerable and commercial potential to be granted for breeder’s rights. One of the major challenges is adapting to climate changes in terms of stability and uniformity. Hence, only the dominant variety will catch the market line. Advancements in biotechnology domain, such as CRISPR or other genetic procedures can flood plant variety certifications across the globe.

To conclude, Agriculture and horticulture are the areas in exponential growth across the world. Need of enough quantity of qualitative food is the priority of many organizations such as European Commission, thereby poverty and malnutrition in the world can be set to its minimized level. Such triggering need of the society encourage researchers to modify plant or crops to fulfill such requirements.

International organizations such as UPOV, EU-CPVR, US-PVPO have specific laws to protect plant breeder’s rights. These organizations are continuously upgrading their laws to comprehensively protection of breeder’s right as well as criteria for approving certificate for new plant variety. Moreover, new advancements in biotechnology can fuel the upcoming plant varieties by the researchers for new plant varieties.

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