In Part-I and Part-II, I had previously shared a summary of the Public Notice 01/2019 as well as my views on whether (and the extent to which) the said notice is ultra vires. In this Part-III, I intend to take the discussion forward with only one other point
Why Only Single Cross Hybrids?
Readers may recollect that in the previous posts, I referred to a pictogram to illustrate and differentiate a parent from a hybrid. Those images reflected a single cross hybrid where the hybrid is obtained from crossing two parents. The Public Notice 01/2019 states that only such hybrids could be registered (if at all) since –
“…three-way crossed or double crossed or multiparent chain-crossed hybrid can never be identically reproduced by mating the same parents to establish stability and uniformity parameters in the resultant hybrid.”
For the uninitiated, the images below illustrate a “double cross” and “three-way cross” hybrid.
Images from here
I believe readers would get the general picture from the above and appreciate that there are more possible combinations. Therefore, hybrids can be generated from several ‘parents’, so to speak. The Public Notice states that such other hybrids requiring more than one ‘cross’ would not satisfy the requirements of law (specifically, the uniformity and stability or the U and S requirements) and thus, applications for the same will not be accepted.
The UPOV guidance document on the DUS testing appears to provide guidance to test uniformity of the following categories of hybrids:
- Single-Cross Hybrid Varieties Resulting from Inbred Parent Lines
- Single-Cross Hybrid Varieties Not Resulting Exclusively from Inbred Parent Lines
- Multiple-Cross Hybrid Varieties
Said document states the following w.r.t. the last category of hybrids, i.e. multiple-cross hybrid varieties:
“For other than single-cross hybrids (e.g. three-way crosses or double crosses), a segregation of certain characteristics is acceptable if it is compatible with the method of propagation of the variety. Therefore, if the heredity of a clear-cut segregating characteristic is known, it is required to behave in the predicted manner. If the heredity of the characteristic is not known, it is treated in the same way as other characteristics in cross-pollinated varieties, i.e. relative tolerance limits, for the range of variation, are set by comparison with comparable varieties, or types, already known (see section 6.4.2)”.
As for the ‘stability’ criterion, the aforesaid document states:
“In practice, it is not usual to perform tests of stability that produce results as certain as those of the testing of distinctness and uniformity. However, experience has demonstrated that, for many types of variety, when a variety has been shown to be uniform, it can also be considered to be stable…
Where appropriate, or in cases of doubt, stability may be tested, either by growing a further generation, or by testing a new seed or plant stock to ensure that it exhibits the same characteristics as those shown by the previous material supplied. Further guidance on the examination of stability is considered in document TGP/11, ‘Examining Stability’.”
So, I studied the document TGP/11 noted above, only to conclude that it does not add much more in substance, except to note that hybrid’s uniformity and stability, where required, can be tested by testing the parents (the parental formula approach I mentioned in Part-II). I did a further general search across a few jurisdictions that provide PVP rights, to only note that most guidance documents simply adopt language that is identical with or similar to the UPOV documents I have referred to above.
This brings me to the conclusion that most jurisdictions I am aware of and certainly those that have a definition of “variety” similar to the UPOV do not carte blanche reject applications for registration of multi-parent hybrids.
Nothing in our statutory scheme justifies taking an approach that is contrary to the above position. For convenience, I extract the definition of uniformity in Section 15 of our PPV Act, below:
“(c) 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;”
(Emphasis supplied in bold)
The qualifiers “subject to variation…expected” and “sufficiently” attached to the term “uniform” give the impression that some variation is allowed. The UPOV (1991) carries a similar but not identical definition in Article 6(1)(c) and the UPOV guidance document referred to above, suggests that such multi-parent hybrids could be nevertheless be ‘uniform’ subject to certain tolerances. The guidance proceeds on the assumption that some variation is definitely expected in multi-cross hybrids (due to the way they can be reproduced/propagated). So, the question is whether the PPV Authority is entitled to take a position and that too, through a Public Notice, that the accepted tolerance is ‘zero’?
In my opinion, the answer is an emphatic ‘no’. The position taken in the Public Notice is affirmatively stating that certain subject matters are not entitled to registration. The question once again comes to the existence of power and nothing in the Act entitles the Authority to determine subject matters that can be protected; this is done by the statute itself. Again, it would be a different matter if the notice simply verbalises the inevitable and necessary consequence of the application of the statutory criteria. This is not the case, however, as seen above.
I think there are many other aspects to the Notice worth discussing. But I think its time I moved on from this topic! I do expect this notice to be challenged at some point and that could also throw up more issues.