The overlap between the Patents Acts and the plant variety protection & Farmer's Rights Act in India: A seed of doubt

• DOI: http://doi.org/10.1111/jwip.12103
• Published date: 01 July 2018
• Author: Prashant Reddy Thikkavarapu
• Date: 01 July 2018

DOI: 10.1111/jwip.12103

ORIGINAL ARTICLE

The overlap between the Patents Acts and the

plant variety protection & Farmer's Rights Act

in India: A seed of doubt

Prashant Reddy Thikkavarapu

1,2

1

National Academy of Legal Studies &

Research, Hyderabad, India

2

The Applied Research Centre for

Intellectual Assets & the Law in Asia

(ARCIALA), School of Law, Singapore

Management University (SMU), Singapore,

Singapore

Correspondence

Prashant R. Thikkavarapu, National

Academy of Legal Studies & Research, Post

Box No. 1, Justice City, Shameerpet,

Medchal District, Hyderabad 500078, India.

Email: preddy85@gmail.com

Like many countries, India has opted to protect new plant

varieties through a sui generis legislation aimed at protecting

new plant varieties. Given the increased use of biotechnol-

ogy to create genetically modified plants and the fact that

these inventions can be protected under patent law, there is

the question of overlaps of both legal regimes. These issues

of overlap are not new since jurisdictions like the EU have

previously witnessed significant litigation on this issue and

subsequently incorporated certain safeguards in the EU

Biotech Directive to reduce the confusion arising from

overlaps between its patent law and its law on plant variety

protection. This article will analyse the issues raised in India

and propose a framework to resolve the overlaps.

KEYWORDS

patents, plant varieties, plant variety protection

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INTRODUCTION

Thedebate over intellectualpropertyprotection for new plantvarieties in India goesback to 1967 when the Seed Review

Team, constituted by the governmentof India, recommendedthe enactment of a lawto incentivise the creationof new

plant varieties(Kochar, 2010). However, no actionwas taken in this regard till the signing of the Agreement on Trade

Related Intellectual Property Rights (TRIPS). This Agreement, which was a part of the WTO Agreement, gave its

signatoriesthreeoptions when it came to protectingnew plant varieties:either protectnew plant varieties undernational

patent law or enact a sui generislegislation to protect only plantvarieties or a combination of these two systems.

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Like many other countries, India chose the option of enacting a sui generis legislation called the Plant Variety

Protection & Farmer's Rights Act, 2001 (PVPFRA) to protect new plant varieties. This law appears to draw some

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

J World Intellect Prop. 2018;21:243–255. wileyonlinelibrary.com/journal/jwip

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