New plant varieties cannot be
protected in India at present. However, in many countries such plants can be
protected under Plant Breeders' Rights and patents. India is under an
obligation to introduce a system for protecting new plant variety. The protection
can be through patents or a sui generis system or a combination of these two
systems. It is understood that India would opt for the sui generis route.
UPOV :
UPOV is an
abbreviation of Union Pour la Protection des Obtentions Vegetales (Union for
Protection of New varieties of Plants) an international convention which
provides a common basis for the examination of plant varieties in different
member States of UPOV for determining whether a plant variety merits protection
under UPOV or not.
There are 5 main criteria to
arrive at a decision whether a plant variety is really new or not. These have
remained unchanged between 1978 and 1991 Acts of the Paris convention. These
criteria are:
-
Distinctness :
The
variety shall be deemed to be distinct if it is clearly distinctable from
any other variety whose existence is a matter of common knowledge at the
time of filing of the application.
Uniformity :
The variety
shall be deemed to be uniform if, subject to the variation that may be
accepted from the particular features of its propagation, it is
sufficiently uniform in its relevant characteristics.
Stability :
The variety
shall be deemed to be stable, if its relevant characteristic remain
unchanged after repeated propagation or, in the case of a particular cycle
of propagation, at the end of each such cycle. Stability, as well as
uniformity may be lost if the rights holder fails to maintain the variety
true to the description established when the rights were granted.Novelty :
The variety
shall be deemed to be new if, at the date of filing of the application for
breeders right, propagating or harvesting material of the variety has not
been sold or otherwise disposed off to others, by or with the consent of
the breeder for the purpose of exploitation of the variety. It is also
understood that a variety to which people have had free access in the past
cannot be protected because then the interest of those who have relied on
the free access, will suffer.Appropriate denomination :
The variety shall be designated by a denomination, which will be its
generic designation.
