Plant Variety Protection

Problems with the Indian Plant Varieties Regime (III): Setting Arbitrary DUS Standards For Extant Varieties?

We are pleased to bring to you the third post in an ongoing series of perceptive posts by Prof. (Dr.) N.S. Gopalakrishnan on India’s problematic plant varieties’ regime. The first and second post in the series can be viewed here and here.

Problems with the Indian Plant Varieties Regime (III):

Setting Arbitrary DUS Standards For Extant Varieties?

Prof. (Dr.) N.S. Gopalakrishnan

A new plant variety is registered under the Protection of Plant Varieties and Farmers’ Rights Act only if it satisfies the criteria of novelty, distinctiveness, uniformity and stability (NDUS). According to Section 15(3), the new variety is deemed to be “novel” if at the date of filing of the application for registration it has not: (i) been sold or otherwise disposed of in India, earlier than one year; or (ii) been sold or otherwise disposed of outside India, earlier than six years (in the case of trees or vines) or four years (in all other cases).

The variety shall be treated as “distinct”, if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application. Similarly it shall be treated as “uniform” if subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its essential characteristics and “stable” if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle. Thus the Parliament is clear as to the criteria of NDUS to be applied for registering a new variety under the law.

In addition to the above, section 19(1) of the Act also envisages the conduct of field tests to determine whether the variety along with parental material confirm to the standards specified by the regulations. Section 19(3) makes it clear that such test shall be conducted in such manner by such method as may be prescribed. Thus it is obvious that Rules and Regulations are necessary to ascertain the DUS of the variety, before it is registered under the Act. Rule 29 dealing with the manner of testing DUS makes it obligatory that the field test must be at multi-locations and at least in two similar crop seasons and special test if required in the laboratory. The Authority has been developing separate guidelines for conducting field tests for each notified crop to determine DUS as defined by the law.

Regarding the conditions for registration of extant variety, section 15(2) excludes the requirement of novelty and mandates that it “conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations”. The use of the words “notwithstanding anything contained in subsection (1)” in section 15(2) make it abundantly clear that the criteria of DUS as laid down in section 15(3) for registration of new variety is not to be applied for registration of extant variety. Rule 24 dealing with registration of extant variety also clarifies that it shall confirm to the criteria of DUS as laid down under the regulations.

An examination of the Regulations, Guidelines and other notifications by the Authority, it is amazing to note that the Authority has not developed any separate criteria for DUS to register “extant” varieties, even though subheading and the title of the Regulations in 2006 and 2009 respectively give an impression that the Authority has laid down separate criteria for DUS. Instead what the Authority attempted in practice was to follow the same criteria of DUS stipulated in section 15(3) for the new variety along with the Guidelines developed for testing DUS for each crop variety to determine the DUS of extant variety. What is astonishing is that the Authority had, from the very beginning,  completely dispensed with the DUS testing for “extent” varieties which were “notified” varieties (under the Seeds Act, as per section 2(j)(i)). In addition to this, with the help of the 2009 Regulations and notice, the Authority defined a “variety about which there is common knowledge” (VCK), laid down different testing methods for it and conveniently excluded the other two categories – farmers’ variety and any other varieties which is in public domain – from registration under extant variety. It is fascinating to track how this illegal activity is systematically achieved by the Authority to protect the interests of modern breeders and the seed industries at the cost of the farmers. It is to be clarified here that farmers’ variety has been registered under section 14(c) as an independent category since 2009 by following different testing methods, as detailed in a forthcoming blog post.

DUS for Extant Notified Variety (ENV)

In 2006, the first Regulation was made under the Act to implement various provisions and one among them was the criteria of DUS for registration of extant variety. Regulation 6 deals with criteria for registration of extant varieties. Instead of laying down criteria for DUS for all four categories of extant variety as mandated by section 15(2) of the Act, it singled out varieties notified under section 5 of the Seeds Act, 1966 (ENV) and an “Extant Variety Recommendation Committee” (EVRC) consisting of seven members including one from farmers’ representative, one from seed industry representative and subject experts nominated by the Authority was envisaged for recommending the suitability of the registration of ENV. Regulation 6 clarified that on the recommendation of EVRC, notified varieties shall be registered. It also stipulated that criteria for DUS for registration of extant variety differ from species to species and they shall be notified by the Authority in the Gazette of India. The wording “criteria for DUS for registration of the extant variety” gives an impression that this is applicable to all the four categories included in the definition of extant variety. It is extremely difficult to appreciate how the Authority could frame such regulations which go against the mandate of the Parliament.

Regulation 11 of 2006 also deals with the standards of seeds or varieties during tests stipulated in section 19(1) of the Act. It states that the test to be conducted for evaluation of a variety to be referred under the Act shall conform to the criteria of DUS test Guidelines published by the Authority and shall be revised and updated from time to time with the prior information to the Central Government. Thus it is apparent that there will be only one set of test Guideline to evaluate the DUS for all varieties to be registered under the Act and which will keep on changing.

If Annual Reports of the Authority are any guidance to trace how DUS is implemented, a reading of the relevant portions in the Annual Reports from 2008 to 2017 dealing with extant varieties indicates that it hardly mentioned about any separate criteria of DUS for registration of extant variety. All the Reports extensively talked about the Guidelines developed for testing DUS for specific crops every year. The Reports from 2010-11 onwards repeatedly stated that “the plant variety protection as enshrined in the Act, follows a broad principle of internationally recognized system of DUS and novelty for a new variety” and tested for all varieties to be registered under the Act. If one examines the Guidelines for testing DUS, it deals with seed material required, conduct of test, method of observation, grouping of varieties, characteristic and symbols, characteristic table etc. Till date, no separate test Guidelines have been developed for extant varieties and it is the same Guidelines used for testing all the varieties registered under the Act. The Annual Reports categorically stated that ENV were registered based on the recommendation of the EVRC and no DUS testing was conducted. One of the justifications for dispensing with the DUS testing as stated in the Annual Report of 2010-11 and repeated in subsequent Reports reads: “The registration of extant varieties notified under the Seeds Act, 1966, is a potent provision for protecting domestic crop varieties which have been mainly bred under National Agricultural Research System at ICAR/State Agricultural Universities/other research organizations/industry, tested through multi-location trials under All India Coordinated Research Project (AICRP) and recommended for release by Central Seed Committee under Department of Agriculture and Cooperation, Ministry of Agriculture, Government of India”. No information is readily available to find out the guidelines, procedure and records examined by the EVRC, before recommending a notified variety for registration. The Annual Reports indicated that almost all applications were recommended every year for registration by the EVRC and the same registered without DUS test after notification.

It is important to note that as on 31st March 2018, out of the total 3430 certificates issued, 1056 were for ENV, with the majority of these certificates issued to ICAR and other public funded institutions. Similarly as on 7th May 2018, out of 550 closed/withdrawn applications, 225 were ENV and the majority were from ICAR and other public institutions. Equally important is to note that as on 10th July 2018, protection of 365 ENV expired and of out of which 350 belong to ICAR and other public funded institutions. An independent study is required to find out what kind of benefits these registrations have conferred on our public funded institutions.

Whatever may be the justifications for dispensing with DSU requirements in so far as notified extent varieties (ENV) are concerned, the decision of the Authority is a blatant violation of the mandatory requirement under section 15(2) of the Act and adopted to protect the interest of the modern breeders and private seed industries. These provisions deserved to be struck down as unconstitutional for being discriminatory and exercise of excessive delegation.

DUS for Variety about which there is Common Knowledge (VCK)

In 2009, a specific Regulation known as “Protection of Plant varieties and Farmers’ Right (Criteria for Distinctiveness, Uniformity and Stability for Registration) Regulation 2009 was notified for the purpose of registration of VCK (variety that is commonly known) and farmers’ variety. According to Regulation 4, the criteria for DUS for VCK under section 14(b) “shall be determined by conducting field test on one season on two locations for the purpose of confirming the DUS following the descriptors and plot size as may be specified in the Journal”. It is evident that no different criteria for DUS as envisaged in section 15(2) is specified, but stipulated concession in the method of field test to determine the DUS. An examination of the Annual Reports clearly indicate that the same set of DUS for new variety along with the Guidelines developed for testing DUS is used for conducting field test of VCK, following the concessions provided in Regulation 4 of 2009 .

What is astonishing was a notice issued under Section 20 (1) read with Section 2(j) (iii) of the Act in the Plant Variety Journal of India, 3 (Sept), 2009 stating that the application for registration of VCK will be processed if the following conditions are met: “A1. If a variety which is not released and notified under the Seeds Act, 1966 but is well documented through publications and is capable of satisfying the definition of ‘variety’, or A2. The candidate variety should either have an entry in any official register of varieties or in the course of being made, or A3. The candidate variety should find inclusion in a reference collection or is having a precise description in a publication, or A4. By any other means a variety has become a matter of common knowledge. AND B. The variety is under cultivation or marketing during the time of filing of application for registration. C. The true representative seed of the variety should be available at the time of filing of application. D. A candidate variety should have been sold or otherwise disposed of in India one year prior to the date of filing of the application and it should not have been sold or otherwise disposed of 13 years prior to the date of filing of application and in case of trees and vines it should not have been sold or otherwise disposed of 16 years prior to the date of filing of application” (emphasis mine). The sum and substance of the requirement is that VCK is existing varieties developed by the modern breeders, and not notified under the Seed Act but on commercial chain for the last 13 and 16 years as the case may be before the filing of the application. The net effect is that a time limit of 13 and 16 years is fixed for determining “common knowledge” and any existing variety beyond this time is excluded from registration. No information is readily available explaining the justification for making such a decision by the Authority.

An examination of section 20(1) of the Act makes it obvious that it deals with the power of the Registrar to accept the application for registration of a variety under the Act “after making such inquiry as he thinks fit with respect to the particulars contained in such application, accept the application absolutely or subject to such conditions or limitations as he deems fit”. It is the general understanding that such powers are conferred on the Registrar to check whether all the requirements of the content of the individual applications are satisfied before accepting the application to proceed further. Thus the power to impose “such conditions or limitations as he deems fit” is necessarily confined to satisfying the content of the application. It is difficult to comprehend how this provision could be used by the Authority to define VCK which was left open by the Parliament.

It is equally surprising and difficult to figure out the reasons for the Authority not exercising this dubious power to lay down conditions for registration of the other two categories i.e., farmers’ variety which is an extant variety and any other variety which is in public domain. This is important because farmers’ variety falls as a separate category for registration under section 14(c) and also as extant variety under section 14(b). Similarly the second part of the definition of farmers’ variety also cover “a variety about which the farmers posses common knowledge”.

It is shocking to notice that, of late, the Authority in the Annual Reports has confined the registration of extant varieties to ENV and VCK. Even though in the earlier Annual Reports all four categories were shown under extant variety, gradually it was reduced to three and now only two. The Authority had the audacity to state in the Annual Report of 2014-15 & 2015-16 (p. 3) that: “Public domain variety: these varieties are not eligible for registration as they are already in public domain” and is no more included as part of extant variety for registration. Similarly farmers’ variety which is an extant variety is also excluded from registration under the category of extant variety. Nowhere in the Annual Reports has the Authority clarified the justifications for excluding these two varieties that are expressly covered by an Act of Parliament.

It is an accepted fact that all the four categories included in the definition of extant variety were in the public domain at the time of the enactment of the law. It is also an accepted fact that the Parliament wanted to capture within the fold of the law, varieties that were developed through “formal and informal innovation” process. These also include varieties that are identifiable with an individual, group of individual or communities who developed the variety and varieties whose breeders are unidentifiable. This seems to be the reason why the Parliament has expressly included “any other variety that is in public domain” as part of extant variety and also included “a wild relative or land race or a variety about which the farmers possess common knowledge” in the definition of farmers’ variety. This also seems to be the reason for the Parliament to mandate different criteria of DUS for registering extant varieties. This is strengthened if one examines the history of including these categories in the definitions by the Joint Parliamentary Committee which were absent in the 1999 Bill presented to the Parliament.  It appears that the failure of the Parliament is not in including these varieties within the definitions, but clearly laying down separate standards, terms and conditions for registration and also the nature of the rights it enjoy after registration. The absence of these provisions compel one to read the general provisions included for the protection of the new varieties including the strong IP rights conferred to them applicable particularly to the “public domain varieties” and farmers’ variety, inflicting a sever “cultural shock” to the sharing culture traditionally followed by the farming communities. Notwithstanding the existence of a very broad research exception in the Act, it appears that these failures created concern among the formal breeders regarding free access to plant genetic materials and seems to have started using the Authority as a convenient means, as far as possible, to do away with the unique sui generis features of the law intended to preserve and promote informal innovation practiced by the farming communities in India. This is also an agenda that private seed industries are bound to execute for their continued survival in the market following capitalist mode of production and distribution of new varieties using emerging technologies and claiming IP protection; a model that is seriously contested as unsustainable.

The fact that as on 31st March 2018, out of the 370 VCK registered under the Act, 330 belongs to the private seed industry speaks volumes about the intentions of the Authority to carve out such a set of conditions for VCK. The seed industries efficiently used this opportunity to enclose for a period of 15 years, the otherwise commercialized and freely accessible varieties to the farmers. A cursory look at the denomination of the VCK, the impression one gets is that majority are F1 hybrids successfully marked by the private seed industry where the farmers’ are forced to come back to the seed industry for access to seed for each season and the parental lines were kept secret from use by competitors, an area that needs further research for conformation. It is pertinent to note that there is not a single VCK registered in the name of an individual. What the Authority is trying to achieve is to make sure that only varieties that were developed through formal innovation methods alone are registered under the extant variety and push out all the varieties that were developed through “informal innovation” predominantly followed by the farming community, leave alone the question whether registration of farmers’ variety under section 14(b) or (c) is going to make much difference. To say the least, this is a surreptitious way of arrogating to itself the power of the Parliament to create norms to protect the vested interest of the seed industry. This is in direct contravention of constitutional norms.

In short, the Plant Variety Authority has effectively taken advantage of gaps in the law to re-writing the clear mandate of the Parliament in order to enable modern breeders and seed industries to enclose publicly available varieties. This trend needs to be arrested at the earliest, through either a judicial intervention or by Parliament in order to protect the future of Indian agriculture and the interests of poor farmers.

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