This article specifically talks about landmark judgments in India based on the Protection of Plant Varieties and Farmers Rights Act,2001.
Firstly, regarding this Act, we need to know about the Rights of the Farmers this Act provides. Following are the nine rights as per the Act:
- Access to seed
- Benefit-sharing
- Compensation
- Reasonable seed price
- Farmers recognition and reward for contributing to conservation
- Registration of farmers varieties
- Prior authorisation for commercialisation of essentially derived varieties
- Exemption from registration fees for farmers
- Farmer protection from innocent infringement
I am going to talk about 4 landmark judgments here. Following are the judgments:
- Mosanto Technology LLC v. Nuziveedu and Ors
Mosanto was a breeder. Mosanto and Nuziveedu entered into a sublicense with each other for a term of 10 years with an agreement that says Nuziveedu has the right to use Mosanto’s patented technology.The agreement entitled the defendant to develop ‘Genetically Modified Hybrid Cotton Planting Seeds. It also stated that Nuziveedu will have to pay the license fees as prescribed in the agreement,meanwhile it happened that Nuziveedu came to know that the fee prescribed in the agreement is higher than the statutory fee and because of this,disputes arised between the parties and hence leading to the termination of agreement by Mosanto.
Mosanto then filed for a temporary injunction against Nuziveedu to restrict him from using their registered trademark and from using or selling seeds or hybrid seeds by using his patented technology during the pendency of the suit and because of the termination of agreement.
The defendants contended that their rights were well protected under the Plant Protection and Plant Varieties Act,2001
The plaintiff had a Nucleic Acid Sequence which is not a living organism and is chemically treated in a lab. As per section 3(j) of TRIPS, Parties may exclude from patentability plants and animals other than micro organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. The defendants contended that they used biological process and plaintiff did not,and therefore the plaintiff’s patent be revoked and hence denying any infringement.
When the plaintiffs’s application came in front of The Single Judge for injunction,it observed that the issues arised in the suit requires formal proof and expert opinion.So this issue of the suit was to be examined after pleadings were complete and evidences have been taken.
Meanwhile,it observed that since the suit was still pending,defendant is obliged to pay the license fee to the plaintiff as per the agreement.
Aggrieved by this decision,both the parties filed for appeal and the Division Bench dismissed plaintiff’s appeal and upheld defendants claim regarding patent exclusion as per sec 3(j) of the Act and that the plaintiffs were at liberty to claim registration under the PPVFR Act, as the two Acts were not complementary, but exclusive in the case of all processes and products falling under Section 3(j) of the Act. Defendant’s counter claim succeeded .The suit was then allowed to continue with damages and other reliefs. The issue about patent existence as well as patent exclusion arised questions questions of laws and facts and therefore the defendants contended that the matter be solved by the Division Bench. Even thought lack of patentabilty wasn’t an issue,the respondents still tried to invalidate the patent.The court was silent about this and then it was decided that the matter should go to Supreme Court. The Supreme Court then held that the matter cannot be deposed of by the Division Bench on a summary basis and therefore the order is vacated. Supreme Court then restored the decision of Single Judge and left for it to decide the patent matter elaborately based on expert evidence.
The case is yet to be decided by the Single Judge.
- Sungro Seeds Ltd. v. Union of India
This case talks about seed of a plant variety to be considered as a novelty if a hybrid seed is made from it.The issue was that petitioner had contended that an order passed by the Registrar against them was impugned. The order that was passed was that a Protection of Plant Varieties and Farmers’ Rights Authority holds that parent lines of known hybrid varieties, could not be registered as “new” plant varieties under the Protection of Plant Varieties and Farmers’ Rights. According to petitioners,even when a hybrid crop has been produced from a parental seed, a parental seed would still be eligible to be considered under the category of a novel product and that a hybrid and a parental seed can be seperately registered for novelty under the Act. It was held that if the hybrid falls under the category of extant variety about which there is common knowledge then its parental lines cannot be treated as novel.
- Pioneer Overseas Corporation v. Chairperson
The petitioner in this case has a plant variety which is protected under The Patents Act,1970..  Pioneer claims that KMH50 is identical/similar to its variety of maize referred to as 30V92 thus Kaveri has indulged in misappropriation of germplasm of Pioneer’s variety 30V92. Kaveri’s application for registration of it’s variety had been accepted merely based on DUS test report findings.Therefore,the procedure for registration too was questioned here.
Pioneer not only filed an opposition against the registration application of Kaveri’s variety but it also showed evidences which demonstrates that there is 99.45% – 99.80% similarity between the two varieties. It has also filed an application under Section 24(5) of the Act for conducting special test (DNA Test) by the authority also for determining the genetic similarity of KMH50 and 30V92 in support of its claim of germplasm theft. It also claimed that Kaveri also abused the provision by making false declaration and providing incorrect information.
On these arguments, Kaveri did not show any expressed intention of filing their counter statement nor contested the technical evidence or established lawful development and ownership of KMH-50.
The court rejected application for conducting special test and the Registrar held that the two varieties fulfills the criteria of DUS (distinctiveness,uniformity and stability) after the test had been conducted and hence the need for no special test. It then said that both the varieties were eligible for registration.
But then the Court examined whether Pioneer’s opposition was required to be rejected only on the ground that Kaveri’s variety KMH-50 had qualified the DUS Test and held that the answer to this question was clearly in the negative.
The court interpreted rule 29 establishing that the special test could be requested by a person aggrieved, be it an applicant for registering its plant variety in case where DUS test fails or even by an opponent challenging/contesting registration of a candidate variety. The court ruled that the reliance on rule 29(1) by the registrar for rejecting the application for conducting special test was misplaced.
Pioneer’s application then for requesting a special test was restored to the file of Registrar. After DUS tests were conducted, based on the results, the Court prima facie held that the characteristics of both the variety qualified for DUS test and that both were more or less identical to each other when compared inter se.
In the view of above, the impugned orders by the Registrar were set ACC aside, that Kaveri cannot apply for registration and that the special test as requested by Pioneer be restored to Registrar’s file. The parties therefore were left go bear their own costs
- Umakant Dubey v. The Chairperson of PPVFR
The petitioners in this writ petition were appointed by the Statutory Authority under The Protection of Plant Varieties and Farmers’ Act, 2001(PPV & FR Act). Petitioners were appointed as Senior Technical Officers by the Selection Committee. Along with the petitioner,there were also others who were appointed by direct recruitment. Sec 20 of PPV&FR Act says that you cannot appoint or recruit anyone until you have issued advertisements in the Employment News and in atleast one national daily. The respondents later sent a show cause notice that the appointment is invalid and thereby ending the services of petitioner and therefore the petitioner approached the court to seek relief.
It was contended by the Court that subordinate legislation cannot override a parent Act provision.
The court observed that the Authority should examine the impact of Rule 3 as well as Rule 20 of the Act and that the Authority can also make direct recruitments and appointments after posts have been created if  necessary approval is taken from Central Governnment.
It was therefore determined that the petitioners can continue their services and in case the Authority tries to remove them in future,the petitioners at liberty to approach the court anytime.
