Finance and Law in Plant Breeding

Khurana and Khurana, Advocates and IP Attorneys India

In the pre-independent India, an Act called Indian Patent and Design Act (IPD Act, 1911) was enacted which during the post-independent period amended and renamed as Indian Patent Act, 1970 and Design Act, 1911. The Patent Act, 1970 did not allow 'product' patent in pharmaceuticals, food and agrochemicals and 'methods' of agriculture and horticulture. So, India did not have any legislation earlier to protect plant varieties. However, after India become a signatory of World Trade Organization (WTO) on 1st January 1995, more specifically its Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, a legislation for protection of plant varieties was necessitated. The Article 27.3(b) of TRIPS agreement insists that member countries shall provide for the protection of the plant varieties either by patents or by an effective sui generis system (its own kind) or by any combination thereof. India, instead of adopting patent, during 2001, has adopted a sui generis system of plant variety protection integrating the rights of the breeders, researchers, farmers, and taking care of the concerns on equitable sharing of benefits arising from the commercialization of plant varieties. This legislation is called Protection of Plant Varieties and Farmers' Rights Act 2001, in short PPV & FR Act 2001. After framing the rules in 2003, the PPV & FR Act came into force in 2005, the procedural details for the registration of 45 crop species were completed by December 2011. Applications for registration of plant varieties were received from May 2007, and so for 228 varieties of various kinds have been registered.


Plants, Varieties, Breeding, Protection.

With the advent of the new intellectual property right (IPR) called the plant breeders rights (PBR); there emerged new problems for the farmers, and thus the need for new solutions. In fact, with the emergence of this new IPR, the farmers were compelled to defend themselves in order to continue their freedoms as before. So, there were attempts in the international level which had its impact in the national levels as well. Providing plant varieties IPR protection has an economic rationale: improve the participation of the private sector in varietal development research by providing them the incentive of exclusive control for a specific period and thereby enabling them to recover their research investment. More than 400 private seed companies of diverse capacities operate in India, but only 55 of these companies have obtained plant variety protection certificates. This indicates an interface between IPR and competition in the Indian seed sector, specifically in the upstream research sector. Providing plant varieties IPR has led to a clear-cut demarcation of the upstream research sector, downstream seed market, and the in-between technology commercialization (IPR licensing) market in the seed sector. As on 31st December 2017 in India, with respect to plant variety protections for hybrids, Bayer was one among the top four companies in pearl millet, rice, and sorghum; Monsanto was among the top four companies with respect to tomato crop; and Syngenta was one among the top four companies with respect to maize and sunflower crop.

Another channel through which IPR creation in the plant variety sector can influence competition is through structural change in the seed industry, that is, consolidation. When PVPs are strengthened by way of the EDV clause, concentration in PVP may have more impact on seed market consolidation and concentration (Srinivasan 2005). The PPVFRA’s recent guidelines make it mandatory to protect the parents of hybrids along with hybrids (as a package) irrespective of whether the hybrid is new or an EDV Until recently, six big companies viz. Monsanto, Syngenta, DuPont, BASF, Bayer, and Dow collectively controlled more than 75% of the agrochemical market worldwide and 63% of the commercial seed market; they were referred to as the ‘Big Six’ (ETC 2015). After some recent, ongoing consolidation involving DowDuPont, Bayer-Monsanto, and Syngenta-Chemchina— the Big Six are now the ‘Mighty Four’. The mergers and consolidation appear to be driven by economies of scale and scope by access to complementary IPRs. Patent alliances and IPRs are accelerating the mergers of global seed chemical companies (Lianos et al. 2016), which have increased the concentration in the seed and agrochemical industries and reduced the number of companies.”

In the Indian context, initially, the PPVFRA reasoned that parental lines of extant hybrids notified under the Seeds Act, 1966 cannot be considered as being notified under the Act as they were not explicitly notified. Hence, they were permitted for registration under a category other than extant notified varieties (extant VCK). But later it was observed that this provision can lead to an extended protection period for a hybrid through ‘evergreening of PVP’ by sequential registration of hybrid, parental line one, and parental line two. To check this, on 5th December 2018, the PPVFRA made an order: the parental lines of extant hybrids notified under the Seeds Act, 1966, should be considered only under the category of extant varieties notified under the Act. Both the parental line and its extant hybrid will have a uniform period of protection, that is, 15 years from the date of notification under the Act. Further, the order states, ‘the parental lines of new hybrids notified under the Seeds Act, 1966 should be considered under the category of new varieties notified under the Act provided they are filed within a period of one year from the date of commercialization of earliest/first hybrid.’ But complex situations are anticipated, such as that of a new hybrid with one new parental line and one extant parental line. As the IPR regime for plant varietal protection is still evolving in India, changes are expected in the provisions of the PPVFR Act in the near future.


Amid the ongoing debate over the desirability and necessity of IPR protection to plant varieties, TRIPS made it mandatory for its members to have some IPR protection mechanism to plant varieties, but IPR protection is influencing competition in various layers/ levels of the seed sector, and inviting the attention of antitrust agencies. The structure of the seed sector and the affordability of seed prices are influenced by the interaction of competition/antitrust policy, seed quality regulatory policy, and biodiversity management and access regulation policy. There are several policy levers in the seed sector, and these need to be balanced to achieve the multiple goals of appropriate incentives for varietal development, seed affordability, and more varietal choices available to farmers. Further, though it is mandatory for TRIPS members to have some IPR mechanism to plant varieties at the country level, within a country it is voluntary.


Khurana and Khurana, Advocates and IP Attorneys

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Khurana and Khurana, Advocates and IP Attorneys

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Contact PersonTarun Khurana

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