The Delhi HC, in its recent judgment in Maharashtra Hybrid Seed Co and Anr v. Union of India and Anr, interpreted S. 15(3)(a) of Protection of Plant Varieties and Farmers’ Rights Act, 2001 (“Act”). This fairly well-written, coherent judgment, which was delivered by Justice Vibhu Bakhru, deals with certain interesting dimensions. As we haven’t dealt with many case laws pertaining to the Act especially involving technical aspects, I intend to deal with this judgment at length. My intention is to break down the case law and make it as simple as possible.
Framework of the Act
According to the Preamble of the Act, it is “an Act to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants”. The Act was enacted pursuant to India’s ratification of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). Sub paragraph (b) of paragraph 3 of Article 27 in part II of the TRIPS Agreement enjoins the members to provide protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.
Section 13 of the Act provides for maintenance of a register called the national register of plant varieties, which will record the names of all registered plant varieties along with names and addresses of their respective breeders and their rights in respect of such plant varieties. If the application for registration of an “essentially derived variety” or a “variety” is accepted and the said plant variety is registered, the Registrar is enjoined to issue a certificate of registration under Section 23(8) of the Act (in case of essentially derived variety) and Section 24 of the Act (in case of variety). By virtue of Section 24(6), the registration certificate is valid for a period of 9 years in case of trees and vines and 6 years in case of other crops. The registration is renewable for further periods. The total period of validity cannot, however, exceed:
“(i) in the case of trees and vines, eighteen years from the date of registration of the variety;
(ii) in the case of extant varieties, fifteen years from the date of the notification of that variety by the Central Government under section 5 of the Seeds Act, 1966 (54 of 1966); and
(iii) in the other cases, fifteen years from the date of registration of the variety.”
A certificate of registration under the Act confers an exclusive right on the breeder or his successor, agent or licensee to produce, sell, market, distribute, import or export the variety (vide Section 28(1) of the Act).
The petitioners impugned a common order dated 24.05.2012 passed by the Registrar, Protection of Plant Varieties and Farmers’ Rights Authority, which held that parent lines of known hybrid varieties cannot be registered as “new” plant varieties 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.
It was not in dispute that parent lines are plant varieties within the meaning of Section 2(za) of the Act. If the said varieties are found compliant with the conditions under Section 15 of the Act, they will be registerable under the Act.
A hybrid variety is created by crossing two parent varieties. Essentially, the process involves producing one parent line (‘A’ line) which is male sterile and female fertile. The pollen of the other parent line, known as the Restorer line (‘R’ line), is dusted on the stigma of ‘A’ line. The resultant seed harvested from ‘A’ line is a hybrid between the two parent lines, ‘A’ line and ‘R’ line and its genome comprises of the genomes of the said two parent lines. In the strict sense the seeds are harvested from ‘A’ line and not from ‘R’ line.
Whether sale or disposal of hybrid seeds will amount to sale or otherwise disposal of the “propagating or harvested material” of the parent lines and consequently destroy their novelty under Section 15(3) (a) of the Act?
“15. Registerable varieties.—(1) A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.
(2) Notwithstanding anything contained in sub-section (1), an extant variety shall be registered under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations.
(3) For the purposes of sub-sections (1) and (2) as the case may be, a new variety shall be deemed to be—
(a) novel, if, at the date of filing of the application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety—
(i) in India, earlier than one year; or
(ii) outside India, in the case of trees or vines earlier than six years, or, in any other case, earlier than four years, before the date of filing such application:
Provided that a trial of a new variety which has not been sold or otherwise disposed of shall not affect the right to protection:
Provided further that the fact that on the date of filing the application for registration, the propagating or harvested material of such variety has become a matter of common knowledge other than through the aforesaid manner shall not affect the criteria of novelty for such variety;
A) WHETHER HYBRID SEEDS OBTAINED BY CROSSING PARENT LINES BE “PROPAGATING OR HARVESTED MATERIAL” OF THE PARENTAL LINES
Petitioner: The hybrid seeds, obtained by crossing the parental lines, are distinct in traits and characteristics from the parent lines and cannot be considered as propagating or harvested material of the parental line varieties. It was contended that the propagating/harvested material of a variety will mean any part of a plant or seed, which is capable of regeneration into a plant having the same characteristics as that of the original plant. Since regeneration of hybrid seed will result in hybrid plant variety that is distinct from the parent line varieties (and not result in the parent lines), the hybrid seeds obtained by crossing of parent lines cannot be said to be “propagating or harvested material” of the parental lines.
Judgment: The expression “harvested material” has not been defined under the Act, but the expression “propagating material” has been defined under Section 2(r) of the Act and reads as under:-“(r) “propagating material” means any plant or its component or part thereof including an intended seed or seed which is capable of, or suitable for, regeneration into a plant;”
A plain reading of the aforesaid definition indicates that an intended seed or a seed which is capable of, or suitable for, regeneration into a plant will be a propagating material of the plant. In order to fall within the definition of the expression “propagating material” all that is required is that a seed or intended seed should be capable of, or suitable for, regeneration into a plant. The word “regeneration” means to germinate or to grow into a plant.
The expression “harvested material of such variety” includes all material that has been harvested from the plant. Accordingly, “the seeds are harvested from the parent lines; such seeds may not propagate the parental lines, but nonetheless, are harvested materials of those lines”. The Court, therefore, dismissed the petitioners’ argument viz., a hybrid seed does not fall within the definition of “propagating material” as it is incapable of regenerating any of the parent line varieties.
B) WHETHER DEVELOPMENT AND SALE OF HYBRID SEEDS AMOUNTS TO EXPLOITATION OF THE PARENTAL LINES?
Petitioner: It was submitted that the development and sale of hybrid seeds will not amount to exploitation of the parental lines. It was contended that the words “disposed of” as used in Section 15(3) of the Act, cannot be read in isolation and will not include self-use and ought to be read synonymous to ‘sale’. Further, the word “disposal” contemplates transferring of title from one party to another party. In the instant case, the title of parent lines were not parted with or transferred to third parties. Therefore, the sale of hybrid seeds will not amount to disposal of parent lines.
Judgment: Sale of the harvested material of varieties (like the hybrid seed which will not germinate into either of the parent varieties) amounts to “exploitation of such variety”. Further, “…admittedly, the petitioners sell and dispose of hybrid seeds. Since such seeds have been held to be propagating material/harvested material of the parent lines, the parent lines cannot be deemed to be novel under Section 15(3)(a) of the Act.
C) EFFECT OF THE EXPRESSION “DEEMED”
Petitioner: Referring to similar statutes in US and EU, it was argued that the aforesaid statutes provide a legal fiction that the parent lines will be deemed to be or considered to be known if the hybrid was sold or otherwise disposed of. The Act doesn’t have a similar provision. Therefore, the parent lines cannot be considered to be known if the hybrid seeds were sold.
Judgment: The word “deemed” in the opening sentence of Section 15(3) of the Act must be read in the context of the legislative intent viz., a plant variety, the propagating material or harvested material of which is sold or otherwise disposed of will be precluded from being claimed as novel if sold/otherwise disposed of prior to the specified period. The argument comparing the Act and the EU & US statutes was thus negated.
D) APPLICATION OF MISCHIEF RULE
The Court applied the mischief rule of interpretation and held as follows:
“35. In my view, a plain reading of Section 15(3) of the Act would indicate that if the seeds of parent lines have been commercially sold, the breeders cannot claim the parent lines to be novel. As I see it, even if one was to consider that language of Section 15(3) of the Act was ambiguous on the issue, the same would have to be resolved against the petitioners. This is so because it is well settled that in case of ambiguity in the language of a statute, a purposive interpretation that furthers the intention of the Legislature must be adopted. The Legislative intent of the Act is to protect the rights of the farmers’ and plant breeders. India had ratified the TRIPS agreement and, therefore, was obliged to protect the intellectual property rights in certain plant varieties. The protection as envisaged under the Act is to provide certain exclusive rights for a specified period of time……….In other words, the Parliament in its Legislative wisdom considered that providing exclusivity as specified under Section 24(6) of the Act was sufficient protection to the plant breeders. If the provisions of Section 15(3) of the Act are read in a manner as suggested by the petitioners, the effect would be to extend that period of protection many times over. In the first instance, a breeder would get protection in respect of the hybrid variety and assuming that there are two parent lines, the breeder could just before the expiry of the Registration Certificate in respect of a hybrid variety, register one of the parent variety and thus, extend its period of exclusivity for a further period of 15/18 years because protection of even one parent line would practically ensure exclusive rights in relation to the hybrid variety. In the same manner, before expiry of the registration period of that parent line, the breeder could register the other parent line as a new variety. In this manner a breeder could extend the protection for a period up to maximum 45/54 years instead of 15/18 years as contemplated under the Act. Clearly, this is not the legislative intent of the Parliament.”
E) RELIANCE ON ARTICLE 6(1) OF International Union for Protection of New Varieties of Plants (UPOV) CONVENTION (1991)
Article 6(1) of the 1991 Act of the UPOV Convention contains words which are similar to Section 15(3) of the Act. The Administrative and Legal Committee of UPOV had earlier concluded in a similar dispute that the novelty of the parent lines was lost by commercial exploitation of its hybrid.