23 December 2013

Scope of ENV under PVP Act vis–a-vis the Seeds Act

by Vindhya Srinivasamani Sudarshan Singh Shekhawat

The Registrar, Plant Varieties Authority at New Delhi, vide its recent order of October 28, 2013 has held that parental lines of extant varieties [Extant (Notified) Variety - ENV] notified under Section 5 of the Seeds Act, 1966 (ENV) cannot  ipso facto be considered as  ENV  under Section 2(j)(i) of the Protection of Plant Varieties and Farmers' Rights Act, 2001 (the PPV & FR Act), but can be considered under other eligible categories for registration, subject to fulfilling the criteria as provided therein.

On an earlier occasion also, the Registrar vide its order dated September 30, 2009 had returned the same finding on an application filed by one Nuziveedu Seeds Pvt. Ltd (Nuziveedu). The Registrar has revisited the said order as the same was challenged by Nuziveedu before the Andhra Pradesh High Court (APHC). While the matters were pending adjudication before the APHC, the Ministry of Agriculture (Ministry), on issues raised by the State Seed Certification Agencies,  issued an Office Memorandum dated June 04, 2013 clarifying that the parental lines of hybrids are deemed to be notified along with the hybrids for multiplication as foundation seed for producing the certified hybrids seeds and no separate notification is required for the parental lines if the hybrid is notified as per the provisions of Seeds Act, 1966 (the Seeds Act) and its corresponding rules. APHC, taking the same into consideration, directed the Registrar to reconsider its earlier order (of 2009) in light of this memorandum and disposed the petitions filed by Nuziveedu as infructuous.


Relevance of memorandum issued by the Ministry

Nuziveedu argued that the Registrar is bound by the Office Memorandum issued by the Ministry and therefore even for the purposes of the Act the parental lines of notified hybrid varieties shall be deemed as notified and therefore should come under ENV category.

The contra submission put forth was that the Office Memorandum issued by the Ministry was applicable only for the purposes of the Seeds Act and not for the purpose of registration under the PPV & FR Act. It was stated that hybrids undergo trials and evaluation, especially a Value for Cultivation and Use Test prior to the notification under the Seeds Act and since the above test records several characters of the hybrid, such extant notified varieties are exempted from testing (as per guidelines) under Regulation 6 of the Protection of Plant Varieties and Farmers' Rights Regulations, 2006 (hereinafter referred to as the Regulations). The procedure as per the above Regulation 6 with regard to extant varieties notified under the Seeds Act is that, such notified varieties instead of undergoing  testing for Distinctiveness, Uniformity and Stability (DUS)  like other varieties under the PPV & FR Act, are directly placed before the Extant Variety Recommendation Committee which recommends such varieties for registration under the Act. With regard to parental lines of the hybrids, it was submitted that, the parental lines do not undergo VCU testing (Value for Cultivation and Use) as the hybrids do prior to the notification under the Seeds Act and if the parental lines of a notified hybrid under the Seeds Act are deemed to be ipso facto notified under the PPV & FR Act, the parental lines would be entitled for registration without undergoing any testing as stipulated under the Regulations. Thus, this would create a situation where certain distinct varieties (parental lines of notified hybrids) would be registered without any trials/testing (either VCU or DUS testing). Thus, deeming the parental lines of notified hybrids to be extant variety notified for the purpose of plant variety registration under the Act would run contrary to the very object of the Act.  


Reasoning of the Registrar

The Registrar held that the Office Memorandum issued by the Ministry applies only with regard to certification of parental lines as foundation seeds for hybrid production and cannot be automatically applied to grant registration to parental lines under the Act. He observed that the Seeds Act is of regulatory nature while and PPV & FR Act is for granting of an IPR. The settled principle of law is that a concept in one enactment cannot be given the same meaning in another enactment. The Office Memorandum was merely clarificatory in nature and reiterated what was implicit in the Seeds Act and rules. The Registrar concurred with the submissions of the opposing party that if the Office Memorandum is applied to the plant varieties registration, the parental lines of the extant varieties notified under Section 5 of the Seeds Act would by-pass the DUS testing, which would be contrary to the object contemplated by the law.    


Relationship between parental lines and hybrids vis-a -vis propagation and stability

Nuziveedu argued that since a hybrid cannot be produced without the parental lines, a hybrid per se includes its parental lines and are thus subject to the same notification process. Also under Section 2(za) of the PPV & FR Act, the definition of 'variety' includes a plant grouping considered as a 'unit' with regard to its suitability for being propagated which remains unchanged after such propagation, and such 'unit' includes both the parental line and the hybrid for the purposes of propagation and stability, as the parental lines are the propagating material for the hybrid.    


Section 2(za) explained

The Registrar rejected the above interpretation and observed that Section 2(za) (ii) of the Act which defines 'variety' is both exhaustive and inclusive as it comprises the words 'means' and 'includes'. He clarified that the term 'variety' must be distinguished from any other plant grouping by expression of at least one characteristics of that plant grouping and held that the word 'variety' applies separately to the parental lines and their hybrids and each are independently eligible for registration under the Act provided they satisfy the DUS criteria. In order to be eligible for registration, the hybrid must be distinct from its parents and each of the parents must also be distinct inter se. With respect to 'propagating material', the Registrar held that merely because the parental lines can be said to be the propagating material of the hybrid, it does not by itself entitle them for registration under the Act, if the hybrid is registered. The parental lines also need to independently satisfy the DUS criteria and thus cannot be considered as a 'unit' along with the hybrid.

Under Section 15(3)(d) of the Act, which defines stability, the parental lines form the first part of the definition, that is, the essential characteristics remain unchanged after repeated propagation, whereas the hybrid forms the second part of the definition, that is, in the case of a particular cycle of propagation, the essential characteristics remain unchanged at the end of each such cycle. The Registrar interpreted the provision such that, the stability character of hybrids must be determined with reference to the hybrids and not with reference to parental lines, as the provision mandates that the hybrids must be stable at the end of a particular cycle of propagation and not for the subsequent generation.



The holding that parental lines of extant varieties notified under Section 5 of the Seeds Act, cannot be automatically considered under the ENV category under Section 2(j)(i) of the Act, instead they can be considered for registration under other categories paves the way for greater clarity regarding the relationship between parental lines and hybrids and their conditions for registration under the Act. Since the law on Plant Variety Protection is at a nascent stage, such reasoned orders assist potential applicants to understand the statute and also demystify issues pertaining to classification of varieties. The importance of the order also stems from the fact that it will prevent, to a great extent, unauthorized users of parental material from getting said parental line registered without a trial. This is because the industry apprehends instances where unauthorized users, in the garb of notified hybrids (under the Seeds Act), could attempt to get the parental material of the said hybrid registered under the provision of the Act. This order would prevent such unauthorized users from diluting and by-passing the mandatory trials required under the Act for registration of the parental lines of notified hybrids.          

 [The authors are, respectively, Associate and Principal Associate, IPR Practice, Lakshmikumaran & Sridharan, New Delh]


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