I recently had the opportunity to catch up with Dr S Nagarajan, the Chairperson of the Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FR).
This interaction was prompted by the realization that SpicyIP has not covered PVP (plant variety protection) in a very long time, and that it would be interesting to update on the activities of the Authority of late, particularly since the opening up of the process of registration for protection last year. It was more a freewheeling conversation, rather than a question-and-answer based interview, which will be apparent from my notes, which I reproduce below.
Highlights included news that the first set of plant varieties were ready for registration under the Act, after having processed the nearly 1000 applications that had been received; and that a computerised database called InDUS, which is a novel initiative by the Authority was on the verge of being launched. Dr Nagarajan also speculated on the possibility of creating a "third forum" for agriculture, on the basis of the unique form of plant variety legislation that was offered by India and her neighbours, and suggested that there lay much untapped potential in trait-trading in life-forms. Details below.
For those not in the know, plant variety rights are a form of intellectual property protection granted to breeders of new varieties of plants. In a very general sense, a plant variety is a strain of a plant (or, more often, a crop) that is a pure breed. In other words, for a plant variety to be protected, it must produce the same type of plant in every generation, and should be distinct in appearance and distinguishable from others. Plant variety rights include, inter alia, royalty rights over a certain identified time period and restrictions on the propagation and subsequent use of seeds derived from such varieties.
The protection of plant varieties around the world is guided by Article 27(3)(b) of the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). This sub-clause contains three conditions binding on sovereign states. States:
- may exclude from patentability plants, animals and essentially biological processes for the production of plants and animals
- must allow patents for micro-organisms and non-biological and microbiological processes for the production of plants or animals
- must provide protection for plant varieties, either by patents or by an effective sui generi [of its own kind] system or a combination.
The Article mandates states to protect plant varieties, while allowing them the flexibility to choose between a pure patent system, a unique protection system of its own kind (sui generis), or a combination of the two. If a state opts to implement a sui generis legislation, the only requirement is that it must be “effective”, which very subjective and has been the domain of considerable academic discussion. I shall, however, leave that for another post, if there is interest in the subject among readers of the blog. :)
Given the TRIPs requirement, India designed a sui generis legislation entitled the Protection of Plant Varieties and Farmers' Rights Act, 2001, available here. The PPV&FR Authority was created under the aegis of this Act, as the implementing authority in this legislation, with central operations in Delhi, and expansion proposals on the table.
As defined by Indian law, “variety” broadly means “a plant grouping except micro organism within a single botanical taxon of the lowest known rank, which can be… considered as a unit with regard to its suitability for being propagated, [and] which remains unchanged after such propagation, and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety”, Section 2(za), PVP Act.
In view of this backgrounder, I shall plunge into the updates I received from Dr Nagarajan.
Applications under PPV&FR Act
Some of you may recall updates in the media about a year or so ago referring to the registration process for varietal protection under the Act. In May 2007, twelve species of crops were opened up for applications, with six species being added subsequently. Till about a fortnight ago, around when this interview was conducted, about 970 applications had been received, of which 550 relate to extant varieties, 5 are for farmers' varieties, while the remainder are for new varieties.
However, while the number of applications is fairly large, it is important to note that not all of them are not in acceptable format. For example, there are applications which are not accompanied by seed, which is required by law in some categories, which have been automatically treated as 'dropouts'.
The largest number of applications have been for 'extant varieties, which under the Act, may be of four types, namely:
- those varieties that are already notified under the Seed Act, 1966;
- Farmers' Variety (FV) - The definition of 'farmers' variety' is contentious and still in process. According to the Chairperson, there lies here a potential project for institutions to document FVs, especially rice, which is an Indian variety and under threat from MNCs;
- 'Variety of Common Knowledge', which are protected under the PPVF&R Act; or
- any other variety which is in the public domain.
As mentioned already, more than half of the applications (about 550) for registration received were of the extant variety category. Of these, the Extant Variety Recommendations Committee formed within the Authority has cleared almost half the cases for final approval.
The Authority also publishes the monthly Plant Variety Journal of India which serves as the Gazette for this Act. There is the stipulated 90 days opposition period for applications received, after which the process of registration may begin, and involves the submission of a fee and seed samples for the Gene Bank. Oppositions to some applications, where relevant, have also been received, Dr Nagarajan informed me, but did not share details on the nature or number of opposition received.
The first set of varieties are ready to be registered, and Dr Nagarajan informed that there were minor procedural issues to be dealt with before the formal registration was granted.
Applicants include Indian companies, and multinational corporations, NGOs and the Indian Council for Agricultural Research (ICAR) and its subordinate institutes. While the companies/corporates have submitted applications mostly for hybrid or new varieties, ICAR has a significant number of applications for extant varieties.
The Act and Farmers' Rights
Dr Nagarajan pointed out that conventionally, Plant Breeders' Rights have always been granted, which translate into farmers' privileges in most countries. However, India's legislation adds a stronger layer of protection for farmers, in the form of farmers' rights. This creates an "even playing ground between seed producer and seed purchaser - which is absent in both the patents and the UPOV system". [The UPOV system refers to the International Convention for the Protection of New Varieties of Plants, which is considered by some to be the de facto model for PVP]
He also suggested that there was potential for creating a "third forum" for agriculture, comprising of countries like India, Indonesia, Thailand, the Philippines, Malaysia, Pakistan, Bangladesh - all in south and southeast Asia - which have Farmers' rights in some form. [Third forum refers to the fact that they are not signatories to either UPOV Convention 1978 or UPOV Convention 1991].
The PPV&FR Act is "more than UPOV", and "looks at India's lasting requirement for food", Dr Nagarajan said. There have been concerted efforts at promoting information about the rights and protection offered under the Act. NGOs representing communities, State Agricultural Universities had all been roped in to disseminate information at a local level. Modes of awareness generation include direct awareness campaigns (about 30-40 so far), an specially designed DVD, handouts, regular participation in farmers' melas, advertisements in newspapers and other media.
A PPV&FR Authority initiative called InDUS is waiting in the wings, ready to be launched soon - it is a computerised database of varieties, named for 'Indian Initiatives on DUS', i.e., Distinctness, Uniformity and Stability - the three fundamental criteria for protection of varieties under the Act. The data characteriastion of the varieties has been done by ICAR to develop descriptors for 45 crops that are presently covered by the Act.
However, although it has not been mass-marketed as yet, there is speculation that there may not be many takers for this database, because it is a payment-based usage (requests for information will be accepted by the Authority, and the database will be sourced for appropriate information). I think we'll need to wait till the database is actually up and running before taking a call on what it will be like.
The Authority itself is comfortably staffed, with a 40-person operation from its Delhi office. However, in view of increasing activity, there are already proposals to have regional offices in the future.
Plant genetic resources, and the National Gene Fund
The discussion took its own turn when we started to talk about the wealth of plant genetic resources that an agri-biodiversity "hotspot" like India posseses. Dr Nagarajan pointed out that agri-research institutions needed to take the lead in protecting, preserving and cataloguing such resources.
"The plant genetic resources of each state will be as valuable as river water resources. Every 200 kilometers has a different agro-climate, soil structures, different taste, physiological requirements. Genes are like capital assets, and there is immense potential for trading in plant genetic resources," he said.
Specifically, he gave the example of rice varieties of Tamil Nadu and Andhra Pradesh which could be grown and/or marketed in the Irrawaddy delta, and further south, in Thailand. There were a large number of plant varieties that are simply being rejected, for lack of enterprise or interest, or other reasons. Recommending that Indian seed companies could tie up with other seed companies in developing countries, he said it was important to cash in on the overlap of food habits across regions, and encourage "Regional Networking", which is not practiced on a large-enough scale.
There are "concealed opportunities in trait-trading in life-forms", he suggested, which I found particularly novel - what I understood from this was that individual traits (e.g., high yield, pest-resistance, etc) could be individually genetically traded, over and above specific varieties.
The National Gene Fund created under the Act (S. 45), Dr Nagarajan said, contrary to belief, has nothing to do with the Convention on Biological Diversity. One major purpose of the Fund is to protect biodiversity, and by extension protect gene suppliers - in the absence of such protection, there will be a "gene famine". There will be access to benefit sharing under the Gene Fund, and it specifically targets tribal and other farmers who have retained genes and other features of plants for millennia. A system such as the Gene Fund is a "pre-requisite for a sustainable/lasting plant breeding programme in India".
At the end of it all, when I asked him what he felt were the challenges that he and the Authority had faced in implementing the law, Dr Nagarajan pithily, and perhaps diplomatically, said that that "the law is functional". I suppose the optimistic interpretation of this is that the wheel is turning, and things are on track.