The Protection of Plant Varieties and Farmers’ Rights Act 2001

In one line

India refused the international convention and wrote its own statute, and the difference is the farmer.

In exam wording: the Protection of Plant Varieties and Farmers' Rights Act 2001 was enacted because article 27(3)(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights permits a member to exclude plants and animals from patentability but requires it to provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination of them, and India chose a sui generis system rather than acceding to the International Convention for the Protection of New Varieties of Plants; section 2(za) defines a variety as a plant grouping except micro-organism within a single botanical taxon of the lowest known rank which can be defined by the expression of the characteristics resulting from a given genotype, distinguished from any other plant grouping by the expression of at least one of those characteristics, and considered as a unit with regard to its suitability for being propagated, remaining unchanged after propagation, and includes propagating material, an extant variety, a transgenic variety, a farmers' variety and an essentially derived variety; section 13 establishes the National Register of Plant Varieties; and section 14 permits an application for registration of a variety of the genera and species specified under section 29(2), or an extant variety, or a farmers' variety.

Why India legislated instead of acceding

The obligation. Article 27(3)(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights allows a member to exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for their production, provided that members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.

The Indian answer. Section 3(j) of the Patents Act 1970 takes the exclusion, and the Act of 2001 supplies the sui generis system.

What sui generis means. A system of its own kind, designed for the subject matter, rather than an adaptation of patent law. The obligation is to make it effective, and the Agreement does not prescribe its content.

Why India did not simply accede to the international convention. Because a convention system is built around the breeder. Indian agriculture rests on farmers who save, use, exchange and sell seed, and who have themselves developed and conserved the varieties that commercial breeding uses as raw material. A statute that protected only the breeder would have made the ordinary practice of Indian farming an infringement. The Act therefore protects the breeder and, in Chapter VI, the farmer and the community as well.

That is the sentence an examiner wants: the Act is an attempt to give the breeder a marketable right without taking anything away from the farmer, and the two are reconciled in sections 39 and 41.