Article: Whether the Parental Lines of Extant Hybrid Varieties can be Considered as Novel?

Author: Intern - Saranya Dash

Introduction

Section 15(3) (a) of The Protection of Plant Varieties and Farmers’ Right Act, 2001  specifies that a plant variety would be novel “if harvested material has not been sold/disposed for the purpose of exploitation”. There is some ambiguity in whether the parental lines would be eligible as ‘novel’ as a prerequisite for registration under the Act for intellectual property protection, if the hybrid seeds of such parental varieties have already been sold/disposed of. Does sale/disposal of hybrid seeds also qualify as being ‘for the purpose of exploitation’ of parental line as ‘harvested material’? Or does sale/disposition of only pure line seeds of a parental line as ‘harvested material’  qualify as being ‘for the purpose of exploitation’?  

For exploring the statutory interpretational issue that has been identified above, the state legislative intent is a good place to begin. The legislative intent of the Act was to follow up on India’s ratification towards TRIPS Agreement for protecting plant varieties either by patents or by sui generis law or perhaps both under Article 27(3)(b) of the TRIPS Agreement. India was obliged to protect intellectual property rights for a specific period of time in certain plant varieties. This aim and rationale of the Act is also mentioned in its preamble. In the two decades since the enactment, though, there is now a fledgeling domestic industry producing varieties of plant species with Indian breeders engaged in a public research system that aims to combine agricultural research in India with intellectual property protection. The current state of the industry is affected by how stringent or accommodative an interpretation is made of the statutory requirement of novelty for these plant patents. It is in this context that this Article explores the statutory interpretation of Section 15(3)(a) of the Act for whether it treats parental lines of extant hybrid varieties as novel.  

Registrable Plant Variety versus Essentially Derived Variety

The specific statutory provision, Section 15, indicates that a new variety or an extant variety is registrable if it meets the criteria of Novelty, Distinctiveness, Uniformity and Stability (referred as NDUS). As to the protection that the statute confers upon NDUS based eligibility, the Act required farmers and breeders to secure their rights and interest by way of registering their plant varieties. It is in this context that the question of hybrid as extant or not extant needs to be considered. 

It is evident that if the hybrid falls under the ambit of extant variety then its parental lines cannot be treated as novel. Supporting the above statement, the harvested material of a variety is a variety in itself or should be able to reproduce the parent variety. In contrast, hybrid seeds obtained from crossing the parental lines have distinct traits and characteristics and don’t qualify as propagating or harvested material. This is because any part of a plant or seed which can regenerate carries the same characteristics of the original plant. Also, to clear the clouded term “disposed of” indicates transferring of title during the process of hybridization to which neither amounts to commercialisation of hybrid seeds nor exploiting the parental lines. In the matter of Deputy Commissioner Of Sales Tax … vs Thomas Stephen & Co . Ltd. Quilon [1988 AIR 997, 1988 SCR (3) 248] [1], the Supreme Court affirmed this interpretation of the phrase – ‘disposed of’ as occurring in the Section.

Propagating Material versus Harvested Material 

Analysing the Section we find that a new plant variety would be deemed to be novel if the ‘propagating material’ as defined under Section-2(r) or ‘harvested material’ which is a technical term not defined in the Act, of such variety has not been sold/disposed of by or with consent of its breeder or its  successor for the purpose of exploitation of such variety in India earlier than one year or in case it is disposed of outside India, earlier than 4 years from the date of application.[2] 

Technically, the process of hybrid varieties involves producing one parent line which is male sterile and female fertile. The pollen of the other line is dusted on the stigma of the initial line to which the resultant seed harvested acquires hybrid characteristics and traits. Hence, we can conclude if the extant hybrid varieties are commercially exploited, the identity from the parent line which is an asset to the breeders is still secured with them and does not qualify as an extant variety. The phrase of Section 15(3)(a) ‘harvested material of a variety’ comprises all the materials of the plant but the seeds are harvested and not propagated from the parent lines.

In the first sentence of the provision Section 15(3) the phrase ‘shall be deemed’ indicates clearly the intention of the legislature that it allows it to be excluded from claiming as novel if sold/disposed of prior to the specified period. Further, the hybrid seeds are incapable for germination due to absence of regeneration of the same variety which does not amount to be deemed as ‘novel’. It would be an ‘essentially derived variety’. 

Conclusion

Proceeding like this makes it clearer that the above interpretation is plausible in as much as even though hybrid represents only itself, once exploited then the novelty of hybrid varieties and plant varieties can be considered to have been exhausted and lost. The above discussion indicates that if seeds of parental lines have been exploited then there is no chance for the breeders to claim such a line as novel. The textual interpretation of the existing language of Section 15 (3)(a) hardly admits of the parental lines of extant hybrid varieties being considered novel and thereby eligible for plant variety protection.    

EndNotes :

[1] Deputy Commissioner of Sales Tax  v. Thomas Stephen & Co. Ltd., Quilon: 1988 SCR (3) 248  https://indiankanoon.org/doc/1639473/

[2] Section:15(3)(a) –  https://plantauthority.gov.in/protection-plant-varieties-and-farmers-rights-act-2001

Section : 2 (r) https://plantauthority.gov.in/protection-plant-varieties-and-farmers-rights-act-2001 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP