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1.
The definition of the term “variety” under Sec. 2(za) of the Protection of Plant Varieties and Farmers’ Rights Act, 2001 cannot be used to limit the meaning of the term “harvested material” under Sec. 15(3)(a) of the Act. “Harvested material” need not always satisfy the definition of “variety”. The word “harvested material” is wide in nature as it includes fruits, vegetables, and seeds (including of hybrid varieties in case of parental lines). There is no legal provision to the effect that “harvested material” must be limited to seeds that reproduce the parental line itself. The requirement of “stability” which is an essential pre-requisite for registration of a variety cannot be so used to understand the meaning and scope of the term “harvested material” under Sec. 15(3)(a) of the Act.
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2.
The word “or” occurring in Sec. 15(3)(a) is disjunctive. Therefore, not only would the sale of the variety for more than one year in India affect its novelty, but also its “disposal for the purposes of exploitation by developing hybrid and commercializing the said hybrid” for more than a year.
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3.
The Indian law on novelty of plant varieties enshrined in Sec. 15(3)(a) of the PPV&FR Act 2001 is worded almost exactly as is Art. 6 of the UPOV Convention 1991 with one important difference. Article 6 of UPOV 1991 uses the term “otherwise disposed of to others.” The omission of the words “to others” under the Indian Act makes it clear that (in India) the disposal of the variety need not be to others. It may even be for the purpose of production of hybrids by exploiting the parental line.
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Notes
Available at http://www.plantauthority.gov.in/legalcell.htm (6 July 2012).
F1 hybrids are created by crossing two (or more) non-identical parent seeds belonging to the same species but having different desirable traits. Each selected parent is “selfed” or inbred repeatedly so as to purify it for the relevant traits. In the simplest terms, a seed that is purified for a desirable trait with a view to crossing it with another parent to create a hybrid, is called a Parental Line (in more technical terms, a parental line is homozygous for the alleles associated with a particular phenotype). For example, Parent A might be high yielding but prone to pest attacks and Parent B might be resistant to pests but low yielding. Thereafter, Parent A and Parent B are crossed, using traditional and modern breeding methods to finally, sometimes after years of effort, produce a hybrid that is both high yielding and pest resistant.
Parental lines of important hybrids were maintained as trade secrets by most seed companies. These lines are therefore difficult to identify by any process similar to reverse engineering in pharmaceuticals. See Goss Peter (1996, 1395–1436 at 1418). Under the PPV&FR Act, in order to secure protection, the company must disclose the parental lines as part of their application for protection.
Available at http://www.wipo.int/wipolex/en/details.jsp?id=2401.
A parental line can be created by one of several methods. The conventional method of creating a parental line for hybrids is by repeated “selfing” (i.e. forced self-pollination or inbreeding even in cross-pollinating crops). This leads to the creation of homozygous lines that are ideal for creating hybrids. In the conventional method, selfing is most commonly done by emasculating the parent plant. To avoid the need of emasculation, a non-conventional method is used to create (inbred) parental lines. This involves incorporation of cytoplasmic male sterility (CMS). In order to make use of CMS in a breeding program, three types of lines are needed: (1) an A-line (containing the sterile male and no restorer genes in the nucleus); a B-line (containing fertile male but still no restorer genes, also called “maintainer” line); and (3) an R-line (the fertility restorer or the “restorer” line). This explains the definition of “Parental Lines” under Regulation 2(f) the PPV&FR Regulations, 2006: “the inbred line of immediate parents or ‘A’ line ‘B’ line and ‘R’ line of hybrids” (also discussed in the Registrar’s order at page 4). A-lines are crossed with B-lines to produce more A-lines and A-lines are crossed with R-lines to produce hybrids.
For a discussion on the conditions under which provisions of international treaties can be used to interpret Indian law, see Vishaka v. State of Rajasthan AIR 1997 SUPREME COURT 3011.
Unless the company in question has not taken adequate steps to protect the secrecy of its parental lines – in which case, they can arguably be considered being in the public domain. In this context, the trade-secret aspect of the decision of the Delhi High Court in Emergent Genetics v. Shailendra Shivam may be significant (available at http://www.indiankanoon.org/doc/183763759/).
Reference
Goss Peter J (1996) Guiding the hand that feeds: Towards socially optimal appropriability in agricultural biotechnology innovation. Cal Law Rev 84(5):1395–1436
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Available at http://www.plantauthority.gov.in/legalcell.htm (accessed 6 July 2012).
Decision prepared by and with a Comment by Mrinalini Kochupillai, Doctoral Research Fellow, International Max Planck Research School for Competition and Innovation (IMPRS-CI).
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Order of the Registrar of Plant Varieties 24 May 2012. “The Parental Lines Case”. IIC 44, 369–379 (2013). https://doi.org/10.1007/s40319-013-0036-3
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DOI: https://doi.org/10.1007/s40319-013-0036-3