Under UPOV, US law and EU law, only new plant varieties can be protected. As we see in the next post, the PPV&FR Act also permits registration of extant varieties – i.e. varieties that were in existence (including those that have been commercialized), before the enactment of the Act. Such varieties are registered under the category “extant varieties” and is the starting point of the issue discussed in the case.
A few months ago I came across an order of the Registrar of Plant Varieties on the internet. The order seemed to be quite important, given the names and the number of the parties who put up an appearance and to make an honest confession I couldn’t understand anything in the order because the subject was so complicated! Thus we set out in search for an expert and it just so turned out that one of our former bloggers, Mrinalini Kochupillai is researching in the area of agricultural innovation at the Max Planck Research School for Competition and Innovation. (You can read more about Mrinalini and her research over hereand here)
I had asked Mrinalini to do the seemingly impossible task of simplifying and summarizing an admittedly complicated topic into just a few thousand words for our readers at SpicyIP. After a few tough rounds of negotiations on the word limit and several drafts, we finally agreed on this final version which I will put up on the blog in two parts.
Order of the Registrar of Plant Varieties dated 25 May, 2012 in the matter of Maharashtra Hybrid Seed Co. and Ors. (The Parental Lines Case).
(A) Issue: Whether Parental Lines of Extant Hybrid Plant Varieties should be protected under the category of Extantor New Varieties under the Indian Protection of Plant Varieties & Farmers’ Rights Act, 2001 (“PPV&FR Act”).
(B) Case History: On 26th March 2012, the Registrar of Plant Varieties conducted a public hearing on the issue of “whether parental lines (utilized for development of hybrids which have been applied under extant variety category) should be considered as ‘new variety’ or ‘extant variety’” under the PPV&FR Act. All applicants interested or concerned with this issue were invited to make submissions on the point with reference to similar applications that they had filed. Following the hearing, an Order was issued by the Registrar of Plant Varieties on 24 May 2012. The order can be accessed over here.
(C) Finding: In a partly well reasoned Order, the Registrar held that parental lines of extant hybrid varieties can only be registered as extant varieties and notas new varieties under the PPV&FR Act.
(D) Relevance of the Order: Categorization of parental lines of hybrids as “extant” or “new” is perhaps of little relevance to the applicant to the extent that the duration and effect of registration, under Chapter IV of the PPV&FR Act, is identical under both categories subject to certain exceptions.. The issue is however relevant from the perspective of the criteria to be met by parental lines of extant hybrids in order to merit registration. The Order is also relevant in that it is perhaps one of the first quasi-judicial interpretations of several key provisions of the PPV&FR Act.
(E) Background: The Indian Seed Industry & its Parental Lines
Following the adoption of the Seed Policy, 1988, several private sector seed companies were established in India. These companies flourished despite the absence, until 2001, of any sort of IP protection for seeds and plant varieties, by focusing their research and production efforts on plants whose floral biology is conducive for the creation of F1 hybrids.
F1 hybrids are created by crossing two (or more) un-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. For e.g. 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.
The reason for the private sector’s research and production focus on hybrids is that by definition, hybrids provide trade secret type protection against competitors because their parental lines can be kept secret (unless the company wants to secure protection for hybrids resulting therefrom under the PPV&FR Act) and are difficult to identify by any process similar to reverse engineering in pharmaceuticals. (Goss Peter 1996)F1hybrids also provide inherent protection against widespread seed-saving and re-sowing by farmers because of their biological incapacity to reproduce true to type. Farmers are therefore forced to buy new (hybrid) seeds from the market each season to ensure high yields. Focusing on hybrids therefore yields the dual purpose of curbing competition and ensuring continuous/regular market for (hybrid) seeds.
In order to protect their proprietary germ-plasm (parent lines) and seed varieties from accidentally (or via defecting scientists) becoming known to competitors, seed companies are now utilizing the protection mechanism under the PPV&FR Act to protect not only their hybrids, but also corresponding parental lines.
(F). Creating Parental Lines and hybrids: 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 – A-line (containing the sterile male and no restorer genes in the nucleus), B-line (containing fertile male but still no restorer genes, also called “maintainer” line) and 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.
Some interesting Facts: Under the umbrella of this trade secret like protection, “the share of research hybrids on total turnover of crops like pearl millet, sunflower, maize, sorghum and cotton was about 70% in 1997-98 compared to 46% in 1990-91.” (Gadwal; 1999) Following the enactment of the PPV&FR Act, given the strong (continuing) farmers and breeders exemptions, it has been predicted that in the private sector, the practice of producing primarily hybrid seeds will probably continue. (Demangue Sabine; 2005) A look at the plant variety application trends in India appears to largely confirm this prediction.(For more on this click here)