The Protection Of Plant Varieties And Farmers ’ Rights – Intellectual Property Rights Laws and Practices Important Questions

Question 1.
(c) Farmers in developing countries particularly in India are very confused and do not understand the concept of intellectual property right. Some people are misguiding them and creating panic and rumour that the patent law will prevent them to use seeds for cultivation. If you are an I PR expert how you will clear farmers’ doubt about the patent law that it will not affect their livelihood and still they can use the seeds for cultivation as usual.
Answer:
The law on the subject is contained in the Protection of Rant Varieties and Farmers’ Rights Act, 2001 where under the concept of Plant Breeders’ Rights has been provided legal sanction/authority. There is undoubtedly a need to provide incentives to the Plant Breeders who are engaged in the creative work of research which sustains agricultural progress through returns on investments made in research and to persuade the researchers to share the benefits of their creativity with society.

The issue of enacting a law relating to Plant Varieties Protection and Farmers’ Rights in India assumed importance particularly in the wake of the TRIPS agreement under WTO which seeks to promote effective protection of Intellectual Property Rights in all fields of technology. Article 27 of the TRIPS Agreement defines “Patentable subject matter” and requires member countries to provide for the protection of plant varieties whether by patenting or by an effective sui generis system or by any combination thereof.

With a view to providing for the establishment of an Authority to give an effective system of protection of the rights of plant breeders and farmers, and to encourage the development of new varieties of plants and to give effect to the provisions of TRIPS Agreement, the Parliament enacted the Protection of Plant Varieties and Farmers’ Right Act, 2001. The Act seeks to stimulate investment for research and development both in the public and private sectors for the development of new plant varieties by ensuring appropriate returns on such investments. It also seeks to facilitate the growth of the seed industry in the country through domestic and foreign investment to ensure the availability of high-quality seeds and planting material to Indian farmers.

It also recognizes the role of farmers as cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro-biodiversity by rewarding them for their contribution through benefit sharing and protecting the traditional rights of the farmers. The Act also provides for the setting up of the Protection of Plant Varieties and Farmer’s Rights Authority to promote and develop new varieties of plants and promote the rights of the farmers and breeders.

Considering the above, it is not correct to say that the Patent Law prohibits the Farmers from using seeds (for cultivation) which are not a subject matter of grant of a right under the Protection of Plant Varieties and Farmers’ Right Act, 2001. In fact, the law is meant to provide protection to the farmers’ rights over the inventions that they are able to come up with and disclose them for the benefit of the common public at large.

Question 2.
(a) Company ABC is a biotechnology-related company. It created a new organism by doing genetic manipulation with the traditional existing organism. Advice on the patentability of such genetic manipulation.
Answer:
In 1972, Anand Chakrabarty, a microbiologist, researcher to the General Electric Company filed a patent application in relation to a bacterium from the genus pseudomonas containing therein, at least two stable energy-generating plasmids, each of the said plasmids providing a separate hydrocarbon degradative pathway. It was a man-made, genetically engineered bacterium capable of breaking down multiple components of crude oil. It was asserted that because of this property, which is possessed by no naturally occurring bacteria, the invention could treat oil spills.

The patent claims were of three types:

  • process claim for the method of producing the bacteria
  • claims for an inoculum comprised of a carrier material floating on water such as straw and the new bacteria, and
  • claims to the bacteria itself.

The Patent Examiner allowed the claims to fall into the first two categories but rejected the claim for bacteria. The decision rested on two grounds:

  • That microorganisms are products of nature, and
  • That as living things, they are not patentable subject matter.

Later, the Patent Office Board of Appeals reiterated the examiner’s decision on the ground that micro-organisms do not fall within the ambit of patentable subject matter since they are living things. Besides the Court of Custom and Patent Appeals emphasized that this issue was not whether the claimed bacterium was living or inanimate but whether it constituted an invention made by human intervention.

The Court reaffirmed that the bacterium was not a handiwork of nature rather it was Charabarty’s own invention. The four statutory categories of inventions, which can be granted patents are processed, the machine, manufacture and composition of matter. Hence, on the question as to in which category would the invention fall. The Supreme Court held that Genetically Engineered oil-consuming bacterium could be categorized either as the composition of matter or manufacture.

The court read the term manufacture in accordance with its dictionary definition, to mean the production of articles for use from raw or prepared materials by giving to these materials, new forms, qualities, properties or combinations whether by hand labour or by machinery. The court obviously turned back to the legislative intent of the drafters of the US Patent Act to ascertain the rationale behind using general and broad terminology “any composition of matter” or “manufacture.”According to the court, this selection of broad language suggested that the drafters’ goal was to stimulate innovation in a wide range of then-unknown technologies and scientific fields, a goal that would be frustrated if Congress was repeatedly required to amend the statute so as to explicitly delineate new categories of patentable inventions.

The court observed that the legislative history of the Patent Act connotes that .* the patentable subject matter includes “anything under the sun that is made by man.” Chakrabarty simply shuffled genes, changing bacteria that already existed. The widest interpretation by the court, let the broadest amplitude to patentability to the living subject matter. After this historic decision, the US biotech industry flourished and numerous patents have been granted on human-made higher life forms such as transgenic crops, mice, fish, cows etc.

TRI Ps supported the argument for patenting of microorganisms in Article 27.3 of TRIPs. It excludes two specific classes of subject matter from patentability:

  1. Diagnostic, therapeutic and surgical methods for the treatment of human and animal; and
  2. Plants and animals other than microorganisms and essentially biological processes for the production of plants or animals other than no biological and microbiological processes.

TRIPS permit patenting of the microorganism but do not define microorganism leaving member states to formulate their own standards relating to it. Indian Patent Act, 1970 through its Section 3 allows the patenting of microorganism and microbiological processes to be patentable. Hence, India does not allow patenting of microorganisms already in nature, but genetically modified versions of the same microorganism that result in enhancement of its called efficacies are patentable.

Question 3.
Write a short note on the constitution of Protection of Plant Varieties and Farmers’ Rights Authority.
Answer:
Protection of Plant Varieties and Farmers’ Rights, Authority and Registry. The provisions under the Protection of Plant Varieties and Farmers-Rights Act, 2001 on the subject of Protection of Plant Varieties and Farmers’ Rights, Authority and Registry’ are contained in Chapter II (Sections 3 to 13) of the ActvTbe relevant provisions thereof are reproduced herein below:

Section 3 – Establishment of Authority (1):
The Central Government shall, by notification in the Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority for the purposes of this Act. (4) The Authority shall consist of a Chairperson and fifteen members. (5) (a) The Chairperson, to be appointed by the Central Government, shall be a person of outstanding calibre and eminence, with long practical experience to the satisfaction of that Government especially in the field of plant varietal research or agricultural development, (b) The members of the Authority, to be appointed by the Central Government, shall be as follows, namely:-

  1. The Agriculture Commissioner, Government of India, Department of Agriculture and Cooperation, New Delhi, ex officio;
  2. The Deputy Director-General in charge of Crop Sciences, Indian Council of Agricultural Research, New Delhi, ex officio;
  3. The Joint Secretary in charge of Seeds, Government of India, Department of Agriculture and Cooperation, New Delhi, ex officio;
  4. The Horticulture Commissioner, Government of India, Department of Agriculture and Cooperation, New Delhi, ex officio:
  5. The Director, National Bureau of Plant Genetic Resources, New Delhi, ex officio;
  6. One member not below the rank of Joint Secretary to the Government of India to represent the Department – of Biotechnology, Government of India, ex officio;
  7. One member not below the rank of Joint Secretary to the Government of India to represent the Ministry of Environment ‘ and Forests, Government of India, ex officio;
  8. One member not below the rank of Joint Secretary to the Government of India to represent the Ministry of Law, Justice and Company Affairs, Government of India, ex officio;
  9. One representative from a National or State level farmers’ organisation to be nominated by the Central Government:
  10. One representative from a tribal organisation to be nominated by the Central Government;
  11. One representative from the seed industry to be nominated by the Central Government,
  12. One representative from an agricultural University to be nominated by the Central Government;
  13. One representative from a National or State level women’s organisation associated with agricultural activities to be nominated by the Central Government; and
  14. Two representatives of State Governments on a rotation basis to be nominated by the Central Government. (c) The Registrar-General shall be the ex officio member-secretary of the Authority. (7) The Chairperson shall appoint a Standing Committee consisting of five members, one of whom shall be a member who is a representative from a farmers’ organization, to advise the Authority on all issues including farmers’ rights.

Section 4 – Meetings of Authority:
(1) The Authority shall meet at such time and place and shall observe such rules of procedure in regard to the transaction of business at its meetings including the quorum at its meetings and the transaction of business of its Standing Committee appointed under sub-section (7) of section 3 as may be prescribed.
(2) The Chairperson of the Authority shall preside at the meetings of the Authority. (6) No act or proceeding of the Authority shall be invalid merely by reason of

  • Any vacancy in, or any defect in the constitution of, the Authority; or
  • Any defect in the appointment of a person acting as the Chairperson or a member of the Authority; or
  • Any irregularity in the procedure of the Authority not affecting the merits of the case.

Section 7 – Chairperson of being Chief Executive:
The Chairperson shall be the Chief Executive of the Authority and shall exercise such powers and perform such duties as may be prescribed.

Section 8 – General functions of Authority:
(1) It shall be the duty of the Authority to promote, by such measures as it thinks fit, the encouragement for the development of new varieties of plants and to protect the rights of the farmers and breeders.
(2) In particular, and without prejudice to the generality of the foregoing provisions, the measures referred to in sub-section (1) may provide for

  • The registration of extant varieties subject to such terms and conditions and in the manner as may be prescribed;
  • Developing characterization and documentation of varieties registered under this Act;
  • Documentation, indexing and cataloguing of farmers’ varieties;
  • Compulsory cataloguing facilities for all varieties of plants;
  • Ensuring that seeds of the varieties registered under this Act are available to the farmers and providing for compulsory licensing of such varieties if the breeder of such varieties or any other person entitled to produce such variety under this Act does not arrange for production and sale of the seed in the manner as may be prescribed;
  • Collecting statistics with regard to plant varieties, including the contribution of any person at any time in the evolution or development of any plant variety, in India or in any other country, for compilation and publication;
  • Ensuring the maintenance of the Register.

Section 11 – Power of Authority:
In all proceedings under this Act before the Authority or the Registrar,(a) The Authority or the Registrar, as the case may be, shall have all the powers of a civil court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses (b) The Authority or the Registrar may, subject to any rule made in this behalf under this Act, make such orders as to costs as it considers reasonable and any such order shall be executable as a decree of a civil court.

Section 12 – Registry and offices thereof:
(1) The Central Government shall establish, for the purposes of this Act, a Registry which shall be known as the Plant Varieties Registry.
(4) The Authority may appoint such number of Registrars as it thinks necessary for the registration of plant varieties under the superintendence and direction of the Registrar-General under this Act and may make regulations with respect to their duties and jurisdiction.
(7) There shall be a seal of the Plant Varieties Registry.

Section 13 – National Register of Plant Varieties:
(1) For the purposes of this Act, a Register called the National Register of Plant Varieties shall be kept at the head office of the Registry, wherein shall be entered the names of all the registered plant varieties with the names and addresses of their respective breeders, the right of such breeders in respect of the registered varieties, the particulars of the denomination of each registered variety, its seed or other propagating material along with the specification of salient features thereof and such other matters as may be prescribed.

Question 4.
Write a brief note on infringement offences, penalties and procedure.
Answer:
Infringement, Offences, Penalties and Procedure (Chapter X – Section 64 to 77)
Section 64 – Infringement:
Subject to the provisions of this Act, a right established under this Act is infringed by a person-

(1) who, not being the breeder of a variety registered under this Act or a registered agent or a registered licensee of that variety, sells, exports, imports or produces such variety without the permission of its breeder or within the scope of a registered licence or registered agency without the permission of the registered licensee or registered agent, as the case may be

(2) who uses, sells, exports, imports or produces any other variety giving such variety, the denomination identical with or deceptively similar to the denomination of a variety registered under this Act in such manner as to cause confusion in the mind of general people in identifying such variety so registered.

Section 65 – Suit for infringement, etc:
(1) No suit-(a) for the infringement of a variety registered under this Act; or (b) relating to any right in a variety registered under this Act, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.
(2) For the purposes of clauses (a) and (b) of sub-section (1), “District Court having jurisdiction” shall mean the District Court within the local limits of whose jurisdiction the cause of action arises.

Section 66 – Relief in a suit for infringement:
(1) The relief which a court may grant in any suit for infringement referred to in section 65 includes an injunction and at the option of the plaintiff, either damages or a share of the profits.
(2) The order of injunction under sub-section (1) may include an ex pane injunction or any interlocutory order for any of the following matters, namely:–

  • discovery of documents;
  • preserving of infringing variety of documents or other evidence which are related to the subject matter of the suit,
  • attachment of such property of the defendant which the court deems necessary to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

Section 67 – Opinion of scientific adviser:
(1) When the court has to form an opinion upon any question of fact or a scientific issue, such court may appoint an independent scientific adviser to suggest it or to inquire into and report upon the matter to enable it to form the desired opinion.
(2) The scientific adviser may be paid such remuneration or expenses as the court may fix. Offences, Penalties and Procedure

Section 68 – Prohibition to apply denomination of (25 of 1961) registered variety:
(1) No person other than the breeder of a variety registered under this Act or a registered licensee or a registered agent thereof shall use the denomination of that variety in the manner as may be prescribed.
(2) A person shall be deemed to apply the denomination of a variety registered under this Act who-

  • applies it to the variety itself; or
  • applies it to any package in or with which the variety is sold, or exposed for sale, or had in possession such package for sale or for any purpose of trade or production; or
  • places, encloses or annexes the variety which is sold, or exposed for sale, or had in possession for sale or for any purpose of trade or production, in or with any package or other thing’ to which the denomination of such variety registered under this Act has been applied; or
  • uses the denomination of such variety registered under this Act in any manner reasonably likely to lead to the belief that the variety or its propagating material in connection with which it is used is designated or described by the denomination; or
  • in relation to the various uses such denomination in any advertisement, invoice, catalogue, business letter, business paper, price list or other commercial document and such variety is delivered. to a person in pursuance of a request or order made by reference to the denomination as so used.

(3) A denomination shall be deemed to be applied to a variety whether it is woven in, impressed on, or otherwise worked into, or annexed or affixed to, such variety or to any package or other thing.

Section 69 – Meaning falsely applying to denominate of (25 of 1961) registered variety:
(1) A person shall be deemed to falsely apply the denomination of a variety registered under this Act who, without the assent of the breeder of such variety,

  • applies such denomination or a deceptively similar denomination to any variety or any package containing such variety;
  • uses any package bearing a denomination which is identical with or deceptively similar to the denomination of such variety registered under this Act, for the purpose of packing, filling or wrapping therein any variety other than such variety registered under this Act.

(2) Any denomination of a variety registered under this Act falsely applied I as mentioned in sub-section (1), is in this Act referred to as false denomination.

(3) In any prosecution for falsely applying a denomination of a variety registered under this Act the burden of proving the assent of the breeder of such variety shall lie on the accused.

Section 70 – Penalty for applying false denomination, etc.:
(1) Any person who-
(a) applies any false denomination to a variety; or
(b) indicates the false name of a country or place or false name and address of the breeder of a variety registered under this Act in the course of trading such variety, shall unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than three months but which may extend to two years, or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both. Section 71 – Penalty for selling varieties to which false denomination is applied, etc.: Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or production of any variety to which any false denomination is applied or to which an indication of the country or place in which such variety was made or produced or the name and address of the breeder of such variety registered under this Act has been falsely made, shall unless he proves

(a) that have taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the denomination of such variety or that any offence had been committed in respect of indication of the country or place in which such variety registered under this Act, was made or produced or the name and address of the breeder of such variety;

(b) that, on-demand by or on behalf of the prosecutor, he gave all the information in his possession with respect to the person from whom he obtained such variety; or

(c) that otherwise he had acted innocently, be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years, or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.

Section 72 – Penalty for falsely representing (25 of 1961) variety as registered:
Whoever makes any representation with respect to the denomination of a variety or its propagating material or essentially derived variety or its propagating material not being a variety or its propagating material or essentially derived variety or its propagating material registered under this Act, to the effect that it is a variety or its propagating material or essentially derived variety or its propagating material registered under this Act or otherwise represents any variety, or its propagating material, or essentially derived variety or its propagating material not registered under this Act to the effect that it is registered under this Act shall be punishable with imprisonment for a term, which shall not be less than six months but which may extend to three years, or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with both. Section 73 – Penalty for a subsequent offence.-

Whoever, having already been convicted of an offence under this Act is again convicted of such offence shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than one year but which may extend to three years, or with fine which shall not be less than two lakh rupees but which may extend to twenty lakh rupees, or with both.

Section 74 – No offence in certain cases:
The provisions of this Act relating to offences shall be subject to the right created as recognised by this Act and no act or omission shall be deemed to be an offence under the provisions of this Act if such act or omission is permissible under this Act. Section 75 – Exemption of certain persons employed in the ordinary course of business: Where a person accused of an offence under this Act proves that in the ordinary course of his employment, he has acted without any intention to commit the offence and having taken all reasonable precautions against committing the offence charged, he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the act so charged as an offence and on demand made by or on behalf of the prosecutor, he gave all the information in his possession with respect to the persons on whose behalf the offence was committed, he shall be acquitted.

Section 76 – Procedure where the invalidity of registration is pleaded by the accused:

(1) Where the offence charged under this Act is in relation to a variety or its propagating material or essentially derived variety or its propagating material registered under this Act and the accused pleads that the registration of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, is invalid and the court is satisfied that such offence is prima facie not tenable, it shall not proceed with the charge but shall adjourn the proceedings for three months from the date on which the plea of the accused is recorded to enable the accused to file an application before the Registrar under this Act for the rectification of the Register on the ground that the registration is invalid.

(2) If the accused proves to the court that he has made such application within the time so limited or within such further lime as the court for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such application for rectification.

(3) If within a period of three months or within such extended time as may be allowed by the court, the accused fails to apply to the Registrar for rectification of the Register, the court shall proceed with the case as if the registration were valid.

(4) Where before the institution of a complaint of an offence referred to in sub-section (1), any application for the rectification of the Register concerning the registration of the variety or its propagating material or essentially derived variety or its propagating material, as the case may be, in question on the ground of invalidity of such registration has already been properly made to and is pending before the Registrar, the court shall stay the further proceedings in the prosecution pending the disposal of the application aforesaid and shall determine the charge against the accused in conformity with the result of the application for rectification.

Section 77 – Offences by companies:
(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Question 5.
Write a short note on farmer rights.
Answer:
Farmers’ Rights (Chapter Vi – Section 39 to 46) Section 39 – Farmer’s rights: (1) Notwithstanding anything contained in this Act,-

(i) A farmer who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act;

(ii) The farmers’ variety shall be entitled to registration if the application contains declaration as specified in clause (A) of sub-section (1) of section 18;

(iii) A farmer who is engaged in the conservation of genetic resources of landraces and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund: Provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act;

(iv) A farmer shall be deemed to be entitled to save, use, sow, re-solve, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Explanation:
For the purposes of clause (iv), “branded seed” means any seed put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected under this Act.

(2) Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers or any organisation of farmers, the breeder of such variety shall disclose to the farmer or the ‘ group of farmers or the organisation of fanners, as the case may be, the expected performance under given conditions, and if such-propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organisation of fanners, as the case may be, may claim compensation in the prescribed manner before the Authority and the Authority, after giving notice to the breeder of the variety and after providing him an opportunity to file an opposition in the prescribed manner and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organisation of farmers, as the case may be.

Question 6.
Mention the provisions related to ‘Plant Varieties Protection Appellate Tribunal.
Answer:
Plant Varieties Protection Appellate Tribunal (Chapter VIII-Sections 54 to 59) Section 54 – Tribunal:
The Central Government may, by notification in the Official Gazette, establish a Tribunal to be known as the Plant Varieties Protection Appellate Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this Act.

Section 55 – Composition of Tribunal:
(1) The Tribunal shall consist of a Chairman and a such number of Judicial Members and Technical Members as the Central Government may deem fit to appoint.

(2) A Judicial Member shall be a person who has for at least ten years held a judicial office in the territory of India or who has been a member of the Indian Legal Service and has held a post in Grade-ll of that Service or any equivalent or higher post for at least three years or who has been an advocate for at least twelve years.

(3) A Technical Member shall be a person who is an eminent agricultural scientist in the field of plant breeding and genetics and possesses experience of at least twenty years to deal with plant variety or seed development activity, or who has held the post in the Central Government or a State Government dealing with plant variety or seed development equivalent to the Joint Secretary to the Government of India for at least three years and possesses special knowledge in the field of plant breeding and genetics.

(4) The Central Government shall appoint a Judicial Member of the Tribunal, to be the Chairman thereof.

(5) The Central Government may appoint one of the Members of the Tribunal to be the senior member thereof.

(6) The senior Member or a Member shall exercise such of the powers and perform such of the functions of the Chairman as may be delegated to him by the Chairman by a general or special order in writing.

(7) Every such appeal shall be preferred by a petition in writing and shall be in such form and shall contain such particulars as may be prescribed.

Section 57 – Orders of Tribunal:
(1) The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders, thereon as it thinks fit.

(2) The Tribunal may, at any time within thirty days from the date of the order, with a view to rectifying the mistake apparent from the record, amend any order passed by it under sub-section (1), and make such amendment if the mistake is brought to its notice by the appellant or the opposite party.

(3) In every appeal, the Tribunal may, where it is possible, hear and decide such appeal within a period of one year from the date of filing of the appeal.

(4) The Tribunal shall send a copy of any order passed under this section to the Registrar. ,

(5) The orders of the Tribunal under this Act shall be executable as a decree of a civil court.

Section 58 – Procedure of Tribunal:
(1) The powers and functions of the Tribunal may be exercised and discharged by Benches constituted by the Chairman of the Tribunal from among the Members thereof.

(2) A Bench shall consist of one Judicial Member and one Technical Member.

(3) If the Members of a Bench differ in opinion on any point, they shall state
the point or points on which they differ, and the case shall be referred to the Chairman for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

(4) Subject to the provisions of this Act, the Tribunal shall have the power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at which the Benches shall hold their sittings.

(5) The Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Registrar under section 11, and any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 19G of the Indian Penal Code, and the Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

(6) Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or any other manner) shall be made on, or in, any proceedings relating to an appeal unless

  • copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made; and
  • opportunity is given to such a party to be heard in the matter.

Section 59 – Transitional provision.- Notwithstanding anything contained in this Act, till the establishment of the Tribunal under section 54, the Intellectual Property Appellate Board established under section 83 of the Trade Marks Act, 1999 shall exercise the jurisdiction, powers and authority conferred on the Tribunal under this Act subject to the modification that in any Bench of such Intellectual Property Appellate Board constituted for the purposes of this section, for the Technical Member referred to in sub-section (2) of section 84 of the said Trade Marks Act, the Technical Member shall be appointed under this Act and he shall be deemed to be the Technical Member for constituting the Bench under the said sub-section (2) of section 84 for the purposes of this Act.

Question 7.
Discuss the Procedure of surrender and revocation of certificate.
Answer:
Surrender and Revocation of Certificate (Chapter V – Sections 33 To 38) Section 33 – Surrender of certificate of registration:
(1) A breeder of a variety registered under this Act may, at any time by giving notice in the prescribed manner to the Registrar, offer to surrender his certificate of registration.

(2) Where such an offer is made, the Registrar shall notify in the prescribed manner every registered agent or registered licensee relating to such certificate.

(3) Any of such agent or licensee may, within the prescribed period after such notification, give notice to the Registrar of his opposition to the surrender and where any such notice is given, the Registrar shall intimate the contents of such notice to the breeder of such variety.

(4) If the Registrar is satisfied after hearing the applicant and all the opponents, if desirous of being heard, that the certificate of registration may properly be surrendered, he may accept the offer and by order revoke the certificate of registration.

Section 34 – Revocation of protection on certain grounds:
Subject to the provisions contained in this Act, the protection granted to a breeder in respect of a variety may, on the application in the prescribed manner of any person interested, be revoked by (he Authority on any of the following grounds, namely:

  • that the grant of the certificate of registration has been based on incorrect information furnished by the applicant;
  • that the certificate of registration has been granted to a person who is not eligible for protection under this Act;
  • that the breeder did not provide the Registrar with such information, documents or material as required for registration under this Act;
  • that the breeder has failed to provide an alternative denomination of the variety which is the subject matter of the registration to the Registrar in the case where the earlier denomination of such variety provided to the Registrar is not permissible for registration under this Act;
  • that the breeder did not provide the necessary seeds or propagating material to the person to whom a compulsory licence has been issued under section 47 regarding the variety in respect of which registration certificate has been issued to such breeder;
  • that the breeder has not complied with the provisions of this Act or rules or regulations made thereunder;
  • that the breeder has failed to comply with the directions of the Authority issued under this Act;
  • that the grant of the certificate of registration is not in the public interest Provided that no such protection shad be revoked unless the breeder is given a reasonable opportunity to file an objection and of being heard in the matter.

Section 35 – Payment of annual fees and forfeiture of registration in default thereof:

(1) The Authority may, with the prior approval of the Central Government, by notification in the Official Gazette, impose a fee to be paid annually, by every breeder of a variety, agent and licensee thereof registered under this Act determined on the basis of benefit or royalty gained by such breeder, agent or licensee, as the case may be, in respect of the variety, for the retention of their registration under this Act.

(2) If any breeder, agent or licensee fails to deposit the fee referred to in sub-section (7) imposed upon him under that sub-section in the prescribed manner up to two consecutive years, the Authority shall issue notice to such breeder, agent or licensee and on service of such notice if he fails to comply with the direction in the notice, the. Authority shall declare all the protection admissible under the registration certificate issued to such breeder or agent or licensee forfeited.

(3) The arrears of fee imposed under sub-section shall be deemed to be the arrears of land revenue and shall be recoverable accordingly.

Section 36 – Power to cancel or change registration and to rectify the Register:

(1) On an application made in the prescribed manner to the Registrar by any person aggrieved, the Registrar may make such order as he may think fit for cancelling or changing any certificate of registration issued under this Act on the ground of any contravention of the provisions of this Act or failure to observe a condition subject to which such registration certificate is issued.

(2) Any person aggrieved by the absence or omission from the Register of any entry, or by any entry made in the Register without sufficient cause, or by any entry wrongly remaining on the Register, may apply in the prescribed manner to the Registrar and the Registrar may make such order for making, expunging or varying the entry as he may think fit.

(3) The Registrar may, in any proceeding under this section, decide any question that may be necessary or expedient to decide in connection with the rectification of the Register.

(4) The Registrar on his own motion may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2).

CS Professional Intellectual Property Rights Laws and Practices Notes