INTELLECTUAL PROPERTY RIGHTS

INTROUCTION
Property: The property refers to wealth or valuable things earned by
person. It is estimated in terms of land, house, garden, industries, animals,
gold, silver, diamond, money etc.
Types: Movable and Immovable

Intellectual Property: The product/ process/idea, which is the outcome of

human intellect and can be used on commercial scale for the benefit of
human kind is called Intellectual property.
Intellectual property refers to creations of the mind: inventions; literary
and artistic works; and symbols, names and images used in commerce.
Intellectual property is divided into two categories:
1. Industrial Property, which includes inventions (patents), trademarks,
industrial designs, and geographic indications of source
2. Copyright, which includes literary and artistic works. Literary works like
novels, poems, plays, films etc. Artistic works such as drawings, paintings,
photographs, sculptures, architectural designs etc.
Features of Intellectual Property
1) It is measured in terms of new ideas, process, products, inventions and
innovations developed by a person
2) It requires lot of intellectual inputs in terms of thinking, planning and fine-
tuning of new ideas/ product/ process.
3) It requires considerable amount of funds and other resources to develop
new products/ process
4) The main problem with IP is it can be copied, reproduced and used by
others resulting in loss of inventor. Hence, protection of IP is essential so
that the inventor can drive maximum benefits from his invention.

Intellectual Property Right

The rights to intangible property that is the product of the human
intellect are referred to as Intellectual property rights.
Intellectual Property Rights (IPRs) are legal rights that protect creations
and/or inventions resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.
The most noticeable difference between intellectual property and other
forms of property, however, is that intellectual property is intangible i.e., it
cannot be defined or identified by its own physical parameters. It is
expressed in some discernible way to be protectable.

What is the need of IPR?

The progress and well-being of humanity rest on its capacity to create and
invent new works in the areas of technology and culture.
 Encourages innovation: The legal protection of new creations
encourages the commitment of additional resources for further
innovation.
 Economic growth: The promotion and protection of intellectual
property stimulates economic growth, creates new jobs and industries,
which enhances the quality and enjoyment of life.
 Safeguard the rights of creators: IPR is required to safeguard
creators and other producers of their intellectual commodity, goods and
services by granting them certain time-limited rights to control the use of
the manufactured goods.
 It promotes innovation and creativity and ensures ease of doing
business.
 It facilitates the transfer of technology in the form of foreign direct
investment, joint ventures and licensing.
Nature/Features of Intellectual Property
Intellectual properties have their own peculiar features. These features of
intellectual properties may serve to identify intellectual properties from other
types of properties. Thus, we will discuss them in brief.
1. Territorial: Any intellectual property issued should be resolved by
national laws. Why is it an issue? Because intellectual property rights
have one characteristic, which other national rights do not have. In
ownership of immovable properties, issues of cross borders are not
probable. However, in intellectual properties, it is common. A film made in
Hollywood can be seen in other countries. The market is not only the local
one but also international. If another person in France imitates a design in
China, which law would be applicable?
2. Giving an exclusive right to the owner: It means others, who are not
owners are prohibited from using the right. The creator or author of an
intellectual property enjoys rights inherent in his work to the exclusion of
anybody else.
3. Assignable: Since they are rights, they can obviously be assigned
(licensed). It is possible to put a dichotomy between intellectual property
 rights and the material object in which the work is embodied. Intellectual
property can be bought, sold, or licensed or hired or attached.
4. Independence: Different intellectual property rights subsist in the same
kind of object. Most intellectual property rights are likely to be embodied
in objects.
5. Subject to Public Policy: They are vulnerable to the deep embodiment
of public policy. Intellectual property attempts to preserve and find
adequate reconciliation between two competing interests. On the one
hand, the intellectual property rights holders require adequate
remuneration and on the other hand, consumers try to consume works
without much inconvenience. Is limitation unique for intellectual property?
6. Divisible (Fragmentation): Several persons may have legally protected
interests evolved from a single original work without affecting the interest
of other right holders on that same item. Because of the nature of
indivisibility, intellectual property is an inexhaustible resource. This nature
of intellectual property derives from intellectual property’s territorial
nature. For example, an inventor who registered his invention in Ethiopia
can use the patent himself in Ethiopia and License it in Germany and
assign it in France. In addition, copyright is made up of different rights.
Those rights may be divided into different persons: publishers, adaptors,
translators, etc.
Advantages of IPR
1. It promotes healthy competition for invention/ innovation among the
intellectuals.
2. It helps in improving the quality of the product.
3. It makes available new ideas/ technologies to different countries.
4. It leads to faster development of industries/ organisations engaged in
research and development work.

Disadvantages of IPR
1. The procedure of registration, particularly of patents, is very lengthy.
2. It involves lot of money transaction in registration, renewal and licensing.
3. It invites lot of court cases due to infringements
4. It may lead to monopoly of right holders etc.

HISTORY
The concept of intellectual property is not new as Renaissance
northern Italy is thought to be the cradle of the Intellectual Property system.
A Venetian Law of 1474 made the first systematic attempt to protect
inventions by a form of patent, which granted an exclusive right to an
individual for the first time. In the same century, the invention of movable
type and the printing press by Johannes Gutenberg around 1450, contributed
to the origin of the first copyright system in the world.
The Statute of Monopolies (1624) and The British Statute of
Anne (1710) are seen as the origins of patent
law and copyright respectively, firmly establishing the concept of intellectual
property.

The Statute of Monopolies 1623 is an Act of the Parliament of England notable as the first
statutory expression of English patent law. Patents evolved from letters patent, issued by the
monarch to grant monopolies over particular industries to skilled individuals with new
techniques
The Statute of Anne, also known as the Copyright Act is an act of the Parliament of Great
Britain passed in 1710, which was the first statute to provide for copyright regulated by the
government and courts, rather than by private parties.

General Agreement on Tariffs and Trade (GATT) was a legal

agreement between many countries, whose overall purpose was to promote
international trade by reducing or eliminating trade barriers such as tariffs or
quotas. According to its preamble, its purpose was the "substantial reduction
of tariffs and other trade barriers and the elimination of preferences, on a
reciprocal and mutually advantageous basis."
GATT was signed by 23 nations in Geneva on 30 October 1947, and
took effect on 1st January 1948. It remained in effect until the signature by
123 nations in Marrakesh on 15 April 1994, of the Uruguay Round
Agreements, which established the World Trade Organization (WTO) on 1
January 1995. The WTO is a successor to GATT, and the original GATT text
(GATT 1947) is still in effect under the WTO framework, subject to the
modifications of GATT 1994.
GATT established a code of conduct for international trade, based on
the principle that the trade should be conducted without discrimination,
tariffs should be reduced through multilateral negotiations, and member
countries should consult each other to overcome trade problems.

GATT Trade Rounds

The GATT held eight rounds of talks of trade negotiation from April
1947 to September 1986, each with significant achievements and outcomes.
The first round occurred in Geneva, Switzerland and included 23 countries.
The focus in this original round was tariffs, and it established tens of
thousands of tax concessions affecting over $10 billion in trade.
 In April 1949, the second round of GATT was held in Annecy, France.
Tariffs again were the main subject, and 13 countries were involved. During
this round, countries exchanges 5,000 more tax concessions.
In April 1949, in Torquay, England, 38 countries were involved in the
third round of GATT. Nearly 9,000 tariff concessions were agreed upon
reducing many tax levels by up to 25 percent.
The fourth round of GATT convened in Geneva for a second time in
January 1956. Japan was involved for the first time, along with 25 other
countries. The main result of this round was a $2.5 billion reduction in tariffs
worldwide.
In September 1960, in Geneva, 26 countries participated in the fifth
round of GATT, which resulted in the elimination of an additional $4.9 billion
in global tariffs.
Four years later, in 1964, the sixth round of GATT took place in Geneva
and involved 62 countries. Approximately $40 billion of tariff concessions
were the result of this round, and important discussions were held on the
curbing of predatory pricing policies known as dumping.
In the seventh round of GATT, in Tokyo in 1973, 102 countries
achieved $300 billion in global tariff reductions.
The eighth round of GATT was held in 1986, in Uruguay. The Uruguay
round launched over 1986-94 was the most ambitious so far. This round
established the World Trade Organisation (WTO) the successor to the GATT.
Many more subjects beyond tariffs were included in the main agenda,
including intellectual property, agriculture and dispute settlement.
The WTO launched the ninth round of negotiations i.e. the Doha
Development Round at Doha, Qatar in November 2001 under the director-
general Mike Moore. Its objective was to make globalization more inclusive
and help the world's poor, particularly by slashing barriers and subsidies in
farming. The initial agenda comprised both further trade liberalization and
new rule making, underpinned by commitments to strengthen substantial
assistance to developing countries.
Table 1 GATT Trade Rounds
Rounds / Start Durat Cou Subjects Achievements
Places ion ntrie covered
s
I – Geneva, April 1947 7 23 Tariffs Signing of GATT,
Switzerland month 45,000 tariff
s concessions affecting
$10 billion of trade
II - Annecy, April 1949 5 13 Tariffs Countries exchanged
France month some 5,000 tariff
s concessions
III - Septembe 8 38 Tariffs Countries exchanged
Torquay, r 1950 month some 8,700 tariff
Devon, s concessions, cutting
England the 1948 tariff levels
by 25%
IV - Geneva January 5 26 Tariffs, admission $2.5 billion in tariff
II 1956 month of Japan reductions
s
V- Septembe 11 26 Tariffs Tariff concessions
(Douglas) r, 1960 month worth $4.9 billion of
Dillon, s world trade
Geneva
VI – May 1964 37 62 Tariffs, Anti- Tariff concessions
Kennedy month dumping worth $40 billion of
Round, s world trade
Geneva,
Switzerland
VII-Tokyo, Septembe 74 102 Tariffs, non-tariff Tariff reductions
Japan r 1973 month measures, worth more than
s framework $300 billion dollars
agreements achieved
VIII - Punta Septembe 87 123 Tariffs, non-tariff The round led to the
del Este, r 1986 month measures, rules, creation of WTO, and
Uruguay s sservices, extended the range
America intellectual of trade negotiations,
property, dispute leading to major
settlement, reductions in tariffs
textiles, (about 40%) and
agriculture, agricultural
creation of WTO, subsidies, an
etc. agreement to allow
full access for textiles
and clothing from
developing countries,
and an extension of
intellectual property
 rights.
IX - Doha, November ? 159 Tariffs, non-tariff The round has not
Qatar 2001 measures, yet concluded. Bali
agriculture, Package signed on
labour standards, the 7th December
environment, 2013.
competition,
investment,
transparency,
patents etc.

The World Trade Organization (WTO)

It is an intergovernmental organization that is concerned with the
regulation of international trade between nations. The WTO officially
commenced on 1 January 1995 under the Marrakesh Agreement, signed by
123 nations on 15 April 1994, replacing the General Agreement on Tariffs
and Trade (GATT), which commenced in 1948. It is the largest international
economic organization in the world

Facts
 Location - Geneva, Switzerland
 Established - 1 January 1995
 Created by - Uruguay Round negotiations (1986-94)
 Membership - 164 countries (2016)
 Ngozi Okonjo-Iweala is the seventh Director-General of the WTO. She
took office on 1 March 2021, becoming the first woman and the first
African to serve as Director-General. Her term of office will expire on
31 August 2025.)

OBJECTIVES OF WTO
 The primary aim of WTO is to implement the new world trade
agreement.
 To promote multilateral trade.
 To promote free trade by abolishing tariff & non-tariff barriers.
 To enhance competitiveness among all trading partners so as to
benefit consumers.
 To increase the level of production & productivity with a view to
increase the level of employment in the world.
 To expand & utilize world resources in the most optimum manner.
  To improve the level of living for the global population & speed up
economic development of the member nations.
 To take special steps for the development of poorest nations.
Basic principles of WTO
1. Non – discrimination: -It has two major components: the most
favoured nation (MFN) rule and the national treatment policy.
Most favoured nation (MFN) rule required that the WTO members
extend the same favourable terms of trade to all member that they will
extend to any single member.
National treatment means that imported goods should be treated
no less favourably than domestically produced goods (at least after the
foreign goods have entered the market) and was introduced to tackle
non-tariff barriers to trade (e.g. technical standards, security standards
etc. discriminating against imported goods)
2. Transparency: - It is the pillar of WTO. All members are required to
publish their trade regulations.
Purpose: To review administrative decisions affecting trade, to
respond to the information by other members, and to notify changes in
trade policies to WTO.
3. Binding & Enforceable Commitments: - In WTO, when countries
agree to open their market for goods and services, they bind their
commitments.
4. Reciprocity: - It operates during negotiations with the objective of
obtaining mutually beneficial arrangements through reciprocal
reduction in tariffs binding.
5. Safety values. In specific circumstances, governments are able to
restrict trade. The WTO's agreements permit members to take
measures to protect not only the environment but also public health,
animal health and plant health.
Functions of WTO
 Implementing WTO agreements & administering the international
trade.
 Cooperating with IMF & World Bank & its associates for establishing
coordination in Global Trade Policy-Making.
 Settling trade related disputes among member nations with the help of
its Dispute Settlement
  Reviewing trade related economic policies of member countries with
help of its Trade Policy Review Body (TPRB).
 Providing technical assistance & guidance related to management of
foreign trade & fiscal policy to its member nations.
 Acting as forum for trade liberalisation.

AGREEMENT ON AGRICULTURE (AoA) under WTO

The Agreement on Agriculture (AoA) is an international treaty of the
World Trade Organization. It was negotiated during the Uruguay Round of
the General Agreement on Tariffs and Trade, and entered into force with the
establishment of the WTO on January 1, 1995.
The AOA consists of three pillars—market access, domestic support and
export subsidies
1. Market access: This includes improving access to markets by
a) Tariffication of all non-tariff barriers (like quotas, variable levies,
minimum import prices, discretionary licensing, state trading
measures, voluntary restraint agreements etc.) and reduction of all
tariffs
 36% average reduction - developed countries - with a minimum of 15%
per tariff item reduction in next 6 years.
 24% average reduction - developing countries - with a minimum of
10% per tariff item reduction in next 10 years.
2. Domestic support: Reduction commitment for Aggregate Measures of
Support (AMS). The AMS for a country’s agriculture is the sum of product
specific and non-product specific subsidies. It should be reduced by 20% in
developed countries (13.3% in developing countries).
3. Export subsidies: Reduction commitment for export subsidy
The 1995 Agreement on Agriculture required developed countries to
reduce export subsidies by at least 36% (by value) or by 21% (by volume)
over six years. For developing countries, the agreement required cuts
were 24% (by value) and 14% (by volume) over ten years.

Trade Related Intellectual Property Rights (TRIPS)

Trade-Related Intellectual Property Rights (TRIPS) is an international
legal agreement between all the member nations of the World Trade
Organization (WTO). TRIPS was negotiated at the end of the Uruguay Round
of the General Agreement on Tariffs and Trade (GATT) between 1989 and
1990 and is administered by the WTO. India signed TRIPS agreement on 15 th
April 1994. TRIPS came into force on 1 January 1995
 It sets down minimum standards for the regulation by national
governments for many forms of intellectual property (IP) as applied to
nationals of other WTO member nations. The TRIPS agreement introduced
intellectual property law into the international trading system for the first
time and remains the most comprehensive international agreement on
intellectual property to date.

Coverage of TRIPS
Areas of intellectual property covered:
 Copyright and related rights
 Trademarks including service marks;
 Geographical indications including appellations of origin;
 Industrial designs;
 Patents including the protection of new varieties of plants;
 The layout-designs of integrated circuits; and
 Undisclosed information, including trade secrets and test data.
The main features of the Agreement are
 Standards: The Agreement sets out the minimum standards of
protection to be provided by each member. Each of the main elements of
protection is defined, namely the subject matter to be protected, the
rights to be conferred and permissible exceptions to those rights, and the
minimum duration of protection.
 Enforcement: The second main set of provisions deals with domestic
procedures and remedies for the enforcement of intellectual property
rights. The Agreement lays down certain general principles applicable to
all IPR enforcement procedures.
 Dispute settlement: The Agreement makes disputes between WTO
Members about the respect of the TRIPS obligations subject to the WTO's
dispute settlement procedures.
TRIPS requirements fall into three categories. First, TRIPS requires all
member states to comply with several pre-existing international agreements
on intellectual property. Second, TRIPS imposes fairness requirements, such
as ensuring equal treatment to citizens of all members. Third, TRIPS requires
members to provide minimum standards of intellectual property rights.
TRIPS is the first international agreement that requires countries to
provide patent rights. TRIPS is also important because it has built-in
enforcement mechanisms.
Doha declaration
The Doha declaration is a WTO statement that clarifies the scope of
TRIPS, stating for example that TRIPS can and should be interpreted in light
of the goal "to promote access to medicines for all."

WORLD INTELLECTUAL PROPERTY ORGANIZATION

The World Intellectual Property Organization (WIPO) is one of the 15
specialized agencies of the United Nations (UN). WIPO was created on 14 July
1967 "to encourage creative activity, to promote the protection of
intellectual property throughout the world".
WIPO currently has 191 member states, administers 26 international
treaties, and is headquartered in Geneva, Switzerland. The current Director-
General of WIPO is Daren Tang, of Singapore who took office on 1 October
2020 and term of office is 6 years.
The predecessor to WIPO was the United International Bureaux for the
Protection of Intellectual Property (BIRPI), which had been established in
[Link] World Intellectual Property Organization, which entered into force
on 26 April 1970.
The mission of WIPO is to promote innovation and creativity for the
economic, social and cultural development of all countries, through a
balanced and effective international intellectual property system.
 TREATIES FOR IPR PROTECTION

Madrid Protocol/ System:The Madrid system comprises two treaties;

the Madrid Agreement Concerning the International Registration of Marks,
which was concluded in 1891, and entered into force in 1892, and
the Protocol Relating to the Madrid Agreement, which came into operation on
1 April 1996.
The Madrid system (officially the Madrid system for the international
registration of marks) is the primary international system for facilitating the
registration of trademarks in multiple jurisdictions around the world. It is a
convenient and cost-effective solution for registering and managing
trademarks worldwide. It allows trademark protection for more than 122
countries with single application and payment of one set of fees only. It helps
to modify, renew or expand global trademark portfolio through one
centralized system. It is administered by the International Bureau of the
World Intellectual Property Organization (WIPO) in Geneva, Switzerland.

Berne Conventionfor the Protection of Literary and Artistic Works

(the Berne Convention): An International copyright treaty called the
convention for the protection of Literary and Artistic works signed at Berne,
Switzerland in 1886 under the leadership of Victor Hugo to protect literary
and artistic works. It has more than 145 member nations. The United States
became a party to the Berne Convention in 1989. The Berne Convention is
administered by WIPO and is based on the precept that each member nation
must treat nationals of other member countries like its own nationals for
purposes of copyright (the principle of “nation treatment”). Protection must
not be conditional upon compliance with any formality (principle of
“Automatic” protection). Protection is independent of the existence of
protection in the country of origin of the work (principle of the
“independence” of protection). In addition to establishing a system of equal
treatment that internationalized copyright amongst signatories, the
agreement also required member states to provide strong minimum
standards for copyrights law. It was influenced by the French “right of the
author”.

Paris Convention: The Paris convention for the protection of

Industrial Property, was one of the first Intellectual Property treaties
signed after a diplomatic conference in Paris, France, on 20 March 1883 by
Eleven (11) countries. According to Articles 2 and 3 of this treaty, juristic
(one who has through knowledge and experience of law) and natural persons
who are either national of or domiciled in a state party to the convention.
The convention is currently still force. The substantive provisions of the
convention fall into three main categories: National Treatment, Priority right
and Common Rules.

Budapest Treaty:The Budapest Treaty on the International Recognition

of the Deposit of Microorganisms for the Purposes of Patent Procedure, or
Budapest Treaty, is an international treaty signed in Budapest, Hungary, on
April 28, 1977. It entered into force on August 9, 1980, and was later
amended on September 26, 1980. The treaty is administered by the World
Intellectual Property Organization (WIPO).The treaty allows "deposits of
microorganisms at an international depositary authority to be recognized for
the purposes of patent procedure". The Budapest Treaty ensures that an
applicant, i.e. a person who applies for a patent, needs not to deposit the
biological material in all countries where he/she wants to obtain a patent.
The applicant needs only to deposit the biological material at one recognised
institution, and this deposit will be recognised in all countries party to the
Budapest Treaty.
The deposits are made at an international depositary authority (IDA) in
accordance with the rules of the Treaty on or before the filing date of the
complete patent application. IDA's have accepted deposits for biological
materials which do not fall within a literal interpretation of "microorganism".
The Treaty does not define what is meant by "microorganism."

The range of materials able to be deposited under the Budapest Treaty

includes:
 cells, for example, bacteria, fungi, eukaryotic cell lines, plant spores;
 genetic vectors (such as plasmids or bacteriophage vectors or viruses)
containing a gene or DNA fragments;
 Organisms used for expression of a gene (making the protein from the
DNA).
There are many types of expression systems: bacterial; yeast; viral; plant or
animal cell cultures;
 yeast, algae, protozoa, eukaryotic cells, cell lines, hybridomas, viruses,
plant tissue cells, spores, and hosts containing materials such as
vectors, cell organelles, plasmids, DNA, RNA, genes and chromosomes;
 purified nucleic acids; or
 deposits of materials not readily classifiable as microorganisms, such
as "naked" DNA, RNA, or plasmids
 Patent co-operation treaty, 1970 – It was earlier not possible for an
entity to claim protection in different countries by single application. This
was made possible as it aimed for co-operation and it was open for all
parties to Paris convention.
 Trademark Law Treaty, 1994 – Harmonized administrative
procedures and introduced ‘service marks’ in ambit of trademarks. Earlier
trademarks were accorded only to goods.
 The Hague agreementconcerning the International Deposit of
‘Industrial Design’1925 – It created International Design Bureau of WIPO.
 International Union for protection of new varieties of plants, 1961
– This provides breeders and farmers right to new plant varieties.

Intellectual Property System in India

As discussed above, historically the first system of protection of
intellectual property came in the form of (Venetian Ordinance) in 1474. This
was followed by Statute of Monopolies in England in 1623, which extended
patent rights for Technology Inventions. In the United States, patent laws
were introduced in 1760. Most European countries developed their Patent
Laws in between 1880 to 1889. In India Patent Act was introduced in the year
1856 which remained in force for over 50 years, which was subsequently
modifiedand amended and was called "The Indian Patents and Designs Act,
1911". After Independence a comprehensive bill on patent rights was
enacted in the year 1970 and was called "The Patents Act, 1970".

Specific statutes protected only certain type of Intellectual output; till

recently only four forms were protected. The protection was in the form of
grant of copyrights, patents, designs and trademarks. In India, copyrights
were regulated under the Copyright Act, 1957; patents under Patents Act,
1970; trademarks under Trade and Merchandise Marks Act 1958; and
designs under Designs Act, 1911.

With the establishment of WTO and India being signatory to the

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
several new legislations were passed for the protection of intellectual
property rights to meet the international obligations. These included: Trade
Marks, called the Trade Mark Act, 1999; Designs Act, 1911 was replaced by
the Designs Act, 2000; the Copyright Act, 1957 amended a number of times,
the latest is called Copyright (Amendment) Act, 2012; and the latest
amendments made to the Patents Act, 1970 in 2005. Besides, new
legislations on geographical indications and plant varieties were also
enacted. These are called Geographical Indications of Goods (Registration
and Protection) Act, 1999, and Protection of Plant Varieties and Farmers’
Rights Act, 2001 respectively.

Legislations covering IPR in India

 Patents: The Patents Act, 1970 as amended in 1999, 2002 and 2005
 Design: The Designs Act, 2000
 Trade Mark: The Trade Marks Act, 1999
 Copyright: The Copyright Act, 1957 as amended in 1983, 1994, 1999
 Layout Design of Integrated Circuits: The Semiconductor Integrated
Circuits LayoutDesign Act, 2000
 Geographical Indications: The Geographical Indications of Goods
(Registration and Protection) Act, 1999
 Plant Varieties: The Protection of Plant Variety and Farmers’ Rights Act,
2001

PATENTS
A patent is a form of intellectual property that gives its owner the legal
right to exclude others from making, using, selling, and importing an
invention for a limited period of years, in exchange for publishing and
enabling public disclosure of the invention. It is derived from Latin word
“pater” means “to lay open” (ie to make available for public inspection).
 A Patent is an exclusive monopoly granted by the Government to an
inventor over his invention for limited period.

The invention must be disclosed in a specified format in a patent

specification and must be periodically renewed up to the end of the term to
retain the rights from it. If not renewed periodically as required by the
statute a patent becomes public property that can be used by anyone
without fear of infringement. Generally, the term of a new patent is 20 years
from the date on which the application for the patent was filed.

There are three types of patents:

 Utility patents may be granted to anyone who invents or discovers any
new and useful process, machine, article of manufacture, or composition
of matter, or any new and useful improvement thereof
 Design patents may be granted to anyone who invents a new, original,
and ornamental design for an article of manufacture
 Plant patents; may be granted to anyone who invents or discovers and
asexually reproduces any distinct and new variety of plant.

Patents Act 1970

This Act contains 163 Sections housed in 23 Chapters. The provisions
of the Patent Act, 1970 (hereinafter referred to as the “1970 Act”) govern
the procurement and grant of patents in India. Section 159 of the Act,
requires the Central Government to frame rules to administer and carry out
the intent of the Act. The Act was kept in abeyance till the formulation of
rules. The rules came into force on April 20, 1972. Thus, the 1970 Act
(except for certain sections) came into force on April 20, 1972. The
remaining sections of the Act came into force on April 1, 1978. Since its
enactment, the Act has been amended on five occasions by:
 The Repealing and Amending Act, 1974
 The Delegated Legislation Provisions (Amendment) Act, 1985
 The Patents (Amendment) Act, 1999
 The Patents (Amendment) Act, 2002
 The Patents (Amendment) Act, 2005

The Patent Rules, 2003

Each post-TRIPS amendments to the Act called for a wide range of
corresponding changes in the rules to implement the changes in substantive
law. The changes in the Patents (Amendment) Act, 2002 required substantial
changes in the procedural laws, which lead to the repeal of the Patent Rules,
1972. The Patents Rules, 2003 were enacted on May 2, 2003 after being
published and circulated for over six months in order to receive public
comments. The Rules were further amended by the Patents (Amendment)
Rules, 2005 and the Patents (Amendment) Rules, 2006. The purpose of these
amendments to the Rules was to introduce flexibility and reduce processing
time for patent applications and to simplify and rationalize the procedures
for granting of patents. Broadly, the Rules are divided in fifteen chapters and
four schedules.

Patentability
A patent is granted for an invention, which may be related to any
process or product. An invention is different from discovery. Not all
inventions are patentable. The inventions must fulfil certain requirements
known as conditions of patentability.
Criteria for patentability
Novelty: a novel invention is one which has not been disclosed in the prior
art where prior art means everything that has been published, presented or
otherwise disclosed to the public on the date of filing of the patent.
Inventiveness/non obvious: inventive step is a feature of invention that
involves technical advance as compared to existing knowledge or having
economic significance or both making the invention non obvious to a person
skilled in the art.

Industrial applicability/Usefulness: an invention is capable of industrial

application if it satisfies three conditions collectively

 Can be made easily

 Can be used in at least one field of activity
 Can be reproduced with the same characteristics as many times as
necessary

Non patentable subject matter:

A) The inventions, which are categorized under section 3 of patents act 1970,
are referred to as non-patentable subject [Link] includes
 an invention which is frivolous or which claims anything obvious contrary
to well established natural laws
 an invention the primary or intended use of which would be contrary to
law or morality or injurious to public health
 the mere discovery of a scientific principle or the formulation of an
abstract theory
 the mere discovery of any new property or new use for a known
substance or of the mere use of a known process, machine or apparatus
unless such known process results in a new product
 a substance obtained by a mere admixture resulting only in the
aggregation of the properties of the components thereof
 the mere arrangement or re-arrangement or duplication of known devices
each functioning independently of one another in a known way
 a method or process of testing applicable during the process of
manufacture for rendering the machine, apparatus or other equipment

 plants and animals other than micro-organisms and essentially biological

processesfortheproductionofplantsandanimalsotherthannon-biologicalormicro-
biological processes. However, members shall provide for the protection of
plant varieties either by patents or by an effective sui generis system or by any
combination thereof.
B) Inventions falling within the scope of Sec. (1) of Sub-sec. 20 of
Atomic Energy Act, 1962-For Example : Inventions relating to
Compounds of – Uranium, Beryllium, Thorium, Plutonium, Radium,
Graphite, Lithium and more as notified by Central Govt. from time to time
Product/process patent
Section 5 of the patent act 1970 had provided grant of only process
patents in certain categories of inventions it may be pointed out here that
under the patent act 1970 in all other areas product and process patents
could be issued. The Paris convention has left this issue to deal with the
states legislation in a manner of its own choice. The TRIPs agreement under
article 27.1 stipulates that patents shall be available for any inventions
whether product or process in all fields of technology except for the ones
which are under exclusion under article 27.2 & 27.3. After the amendments
of patent act 1970, section 5 provides that in case of inventions being
claimed relating to food, medicine, drugs only patents relating to methods or
processes of manufacture will be granted. Chemical process includes
biochemical, biotechnological and microbiological processes hence section 5
of the patent act 1970 was deleted by patents amendment act 2005 thereby
allowing for the product patents.

Procedure for Obtaining Patent

 Persons Entitled to Apply for Patents: Subject to the provisions
contained in Section 134, an application for a patent for an invention may be
made by any of the following persons
 By any person claiming to be the true and first inventor of the invention.
 By any person being the assignee of the person claiming to be the true
and first inventor in respect of the right to make such an application.
 By the legal representative of any deceased person who immediately
before his death was entitled to make such an application.
Documents required for filing of A Patent Application
 Application for Grant of Patent in Form 1 [section 7, 54 & 135 and Rule
20(1)] in duplicate;
 Complete/Provisional specification in Form 2 in duplicate [Section 10;
Rule 13]
 Statement and Undertaking in Form 3 [Section 8; Rule 12];
 Power of Attorney in Form 26 (in original) (Rule 3.3 (a) (ii)); (if filed
through attorney)
 Declaration of Inventor-ship in Form 5 (only in case of an Indian
Application; (Rule 4.17);
 Request for examination: F18
 Requisite Statutory fees (cheque / DD).
1. Filling of patent Application
 Every Application for a patent shall be for one invention only and shall be
made in the prescribed form (Form No. 1) and filed in the Patent Office
 Filing of provisional and complete specification: a) it is possible for filing
the application with provisional specification but is necessary to file
complete specification within one year of filing for a patent.(Form No. 2)
2. Publication
 Upon receiving the application, the Patent Office accords the application
an application number and applications corresponding to international
applications designating India shall constitute a different series.
 All applications which have not been abandoned or withdrawn are
published in the Patent Official Journal within 18 months from the date of
filing or priority date, whichever is earlier.
 The application shall not be published if a secrecy direction is given or if
the application has been abandoned.
3. Pre-grant Opposition/Representation
 An opposition or representation shall be filed at appropriate office with a
statement and evidence along with a request for hearing
 A person can oppose a patent application or a patent if the
applicant/patentee or the person under or through whom he claims, has
wrongfully obtained the invention or any part thereof from him
 If the invention is known to public before the date of filing of application
and if the information given is false or geographical indications of material
is not mentioned.
4. Request for examination
 The application shall be taken up for examination only when a request for
the examination has been filed using Form 18.
 A request for examination (RFE) can be filed by either the applicant or by
interested person within a period of 48 months from the date of priority or
date of filing, whichever is earlier.
5. Examination
 After filing a request for examination, the application is taken up for
examination and the Indian Patent Office follows a deferred examination
system. The application will be examined to check whether it complies
with the requirement of the Act and whether there are any lawful grounds
for objection to the grant of patent
 Upon receiving a request for examination (RFE), the Controller shall task
an examiner with preparing a First Examination Report (FER). The
examiner has to prepare the FER within about one month and not more
than three months from the date of application
6. Publication of Grant of patent
 If the application is found to be correct and meets all the criteria of the
patent office authority than it will be put for order of grant and will be
published in the gazette of accepted application.
7. Post grant opposition
 One of the substantive changes brought out by the Patents
(Amendment) Act, 2005 is the Post Grant Opposition proceedings.
 Only a person interested may give notice of opposition within one year
from the date of publication of the grant
 The Opponent is required to file a Written Statement and supporting
evidence along with the Notice of Opposition
Specification
A Specification should accompany an application for patent. A patent
specification is a technical and legal document susceptible to interpretation
by court of law. The main function of a specification is to convey to the public
what the patentee considers to be invention. The specification shall be filed
in Form and the Act facilitates the filing of provisional specification and
awards a time span of twelve months to file complete specification. A
provisional specification secures a priority date for the application over any
other application which is likely to be filed in respect of the same invention
being developed concurrently.
a. Provisional specification
When the applicant finds that his invention has reached a stage
wherein it can be disclosed on paper, but has not attained the final stage, he
may prepare a disclosure of the invention in the form of a written description
and submit it to Patent Office as a provisional specification which describes
the invention.
b. Complete specification
The complete specification is a techno-legal document which fully and
particularly describes the invention and discloses the best method of
performing the invention. As the complete specification is an extremely
important document in the patent proceedings it is advised that it should be
drafted with utmost care without any [Link] case of an international
application designating India the title, description, drawings, abstracts and
claims filed with the application shall be taken as the complete specification
for the purposes of the Act.
Patent infringement
Patent infringement means the violation of the exclusive rights of the
patent holder. As discussed earlier, patent rights are the exclusive rights
granted by the Government to an inventor over his invention for a limited
period of time. In other words, if any person exercises the exclusive rights of
the patent holder without the patent owner's authorization then that person
is liable for patent infringement. Sections 104-114 of the Patents Act, 1970
provide guidelines relating to patent infringement.

Types of infringement

a. Direct Infringement
Making, using, selling, trying to sell, or importing something without
obtaining a license from the patent holder is considered direct patent
infringement. The offender must complete this act willfully and within the
United States.
b. Indirect Infringement
Indirect infringement includes contributory infringement and
inducement to infringe a patent. Under these terms, even if a company isn't
the one that originally infringed on the patent, that company can still be held
accountable for patent infringement.

Patent Infringement Litigation

 Litigation may aim to stop the use of a patented idea or item
 Patents are typically considered intellectual property and tried at the
federal level
 An infringement case has to be brought to court within six years of the
alleged infringement
 Typically, the case is overseen by a judge, as opposed to determine by a
jury
 The patent holder bears the burden of proof, which means the evidence
must favor the patent holder

Patent opposition & revocation.

An application can be opposed before grant as well as until one year
after grant. Any person can oppose the grant of patent 6 months after
publication of the application.
Two types of opposition for the patents
[Link]-grant Opposition/Representation
 An opposition or representation shall be filed at appropriate office with a
statement and evidence along with a request for hearing
 A person can oppose a patent application or a patent if the
applicant/patentee or the person under or through whom he claims, has
wrongfully obtained the invention or any part thereof from him
 If the invention is known to public before the date of filing of application
and if the information given is false or geographical indications of material
is not mentioned
b. Post grant opposition
 One of the substantive changes brought out by the Patents (Amendment)
Act, 2005 is the Post Grant Opposition proceedings.
 Only a person interested may give notice of opposition within one year
from the date of publication of the grant
 The Opponent is required to file a Written Statement and supporting
evidence along with the Notice of Opposition
Grounds for opposition
 Wrongful Obtaining: A person can oppose a patent application or a patent
if the applicant/patentee or the person under or through whom he claims,
has wrongfully obtained the invention
 Prior Publication: A prior publication will be considered only if the
invention as claimed has been published before the priority date of the
claim
 Prior Claiming: Prior claiming occurs when invention claimed in any one
claim of the complete specification has been published on or after the
priority date of the applicant’s claim
 Prior Public Knowledge or Public Use: If the invention so far as claimed in
any claim of the complete specification was publicly known
 Obviousness or Lack of Inventive Step: An application can also be
opposed if the invention as claimed is obvious and doesn’t involve any
inventive step
 Claim not a Patentable Invention
 Invention not Sufficiently and Clearly Described
 Failure to Disclose Information Regarding Foreign Application
 Non-disclosure of Origin of Biological Material
 Prior Knowledge in Local or Indigenous Community
 Notice of Opposition & Written Statement

Compulsory licensing
 The provision for compulsory license are made to prevent the abuse of
patent as a monopoly and to make the way for commercial use of the
invention to the public.
 Any person can make an application for a grant of compulsory license for
a patent after three years from the date of grant of patent on the
following grounds.
 The reasonable requirements of the public with respect to the patented
invention have not been satisfied
 Patent invention is not available to the public at a reasonable and
affordable price
 Patent invention is not worked in the territory of India.

Administration
The Office of the Controller General functions under the Department of
Industrial Policy and Promotion, Ministry of Commerce and Industry.

Hierarchy of Officers in Patent office:

• Controller General of Patents, Designs, Trademarks & GI
• Examiners of Patents & Designs
• Assistant Controller of Patents & Designs
• Deputy Controller of Patents & Designs
• Joint Controller of Patents & Designs
• Senior Joint Controller of Patents & Designs

Jurisdiction of Patent offices in India

Office Territorial Jurisdiction Office Territorial Jurisdiction

Patent Office Branch, Mumbai The States of Maharashtra,
Gujarat, Madhya Pradesh, Goa
and Chhattisgarh and the Union
Territories of Daman and Diu &
Dadra and Nagar Haveli
Patent Office Branch, Chennai The States of Andhra Pradesh,
Karnataka, Kerala, Tamil Nadu
and the Union Territories of
Pondicherry and Lakshadweep.
Patent Office Branch, New The States of Haryana, Himachal
Delhi Pradesh, Jammu and Kashmir,
Punjab, Rajasthan, Uttar Pradesh,
Uttaranchal, Delhi and the Union
Territory of Chandigarh.
Patent Office, Kolkata The rest of India.

Patent search and database

Patent information is made available to public through different database

1. InPASS (Indian Patent Advanced Search System)

 Website: [Link]
 Use: Search Indian published applications, granted patents, legal
status, and application details.
 Features:
o Full-text search for Indian patents
o Search by title, inventor, applicant, abstract, date, etc.
o Legal status of patents
2. Espacenet (European Patent Office)
 Website: [Link]
  Use: Over 140 million patent documents worldwide, including India,
US, Europe, and Asia.
 Features:
o Smart filtering, machine translation
o Legal status, patent families
o Integrated with EPO data
3. USPTO Patent Full-Text and Image Database (PatFT & AppFT)
 Website:
[Link]
 Use: U.S. patents and applications
 Features:
o Full-text and PDF images
o Search by classification, number, keywords
4. WIPO PATENTSCOPE
 Website: [Link]
 Use: Search PCT (Patent Cooperation Treaty) applications filed
internationally.
 Features:
o Multilingual search
o Search 100+ million patent documents
o Useful for international patentability
5. Google Patents
 Website: [Link]
 Use: Simple interface for global patent searches
 Features:
o Covers USPTO, EPO, WIPO, and other national offices
o Includes legal status, citations, and family
o Great for beginners and quick searches
6. J-PlatPat (Japan Platform for Patent Information)
 Website: [Link]
 Use: Japanese patent, design, and trademark information
 Features:
o English interface available
o Machine translation included
International Union for the Protection of New
Varieties of Plants (UPOV)
The International Union for the Protection of New Varieties of Plants or
UPOV is an intergovernmental organization with headquarters in Geneva,
Switzerland. The current Secretary-General of UPOV is Francis Gurry. It was
established by the International Convention for the Protection of New
Varieties of Plants. The Convention was adopted in Paris in 1961 and revised
in 1972, 1978 and 1991. The objective of the Convention is the protection of
new varieties of plants by an intellectual property right. By codifying
intellectual property for plant breeders, UPOV aims to encourage the
development of new varieties of plants for the benefit of society. It ensure
that the member states of the union acknowledge the achievements of
breeder of new plant varieties by making available to him exclusive
marketing rights, on the basis of a set of uniform and clearly defined
principles. As of October 2, 2015 there are 74 members of UPOV.

Salient features of UPOV

1. A protection right is granted for verities of all botanical genera and

species.
2. It provides legal rights to the original plant breeders or owners of
verities for commercial production marketing and export of his variety
3. For plant breeders' rights to be granted, the new variety must meet
four criteria/ requirement under the rules established by UPOV.
 Novelty: The new plant must be novel, which means that it must
not have been previously marketed in the country where rights are
applied for.
 Distinctness: The new plant must be distinct from other available
varieties.
 Uniformity: The plants must display homogeneity.
 Stability: The trait or traits unique to the new variety must be
stable so that the plant remains true to type after repeated cycles
of propagation.
4. The holder of plant breeder’s right has power to authorise any person
for commercial production, marketing, export and import of his variety.

Protection of Plant Varieties and Farmers’ Rights

Act
The Govt. of India enacted “The Protection of Plant Varieties and Farmers'
Rights (PPV&FR) Act, 2001” adopting sui generis system. Indian legislation is
not only in conformity with International Union for the Protection of New
Varieties of Plants (UPOV), 1978, but also have sufficient provisions to
protect the interests of public sector breeding institutions and the farmers.
The legislation recognizes the contributions of both commercial plant
breeders and farmers in plant breeding activity and also provides to
implement TRIPs in a way that supports the specific socio-economic interests
of all the stakeholders including private, public sectors and research
institutions, as well as resource-constrained farmers.

Article 27 Section 3 (b): (Trips: Trade related aspects of intellectual

property rights)
Members shall provide for protection of plant varieties. Three options given:
1. by patents or
2. by an effective sui generis system or
3. by combination of both.
India opted for sui generis system
Objectives of the PPV & FR Act, 2001
 To establish an effective system for the protection of plant varieties,
the rights of farmers and plant breeders and to encourage the
development of new varieties of plants.
 To recognize and protect the rights of farmers in respect of their
contributions made at any time in conserving, improving and making
available plant genetic resources for the development of new plant
varieties.
 To accelerate agricultural development in the country, protect plant
breeders’ rights; stimulate investment for research and development
both in public & private sector for the development new of plant
varieties.
 Facilitate the growth of seed industry in the country which will ensure
the availability of high quality seeds and planting material to the
farmers.

Two major elements of PPV&FR Act

 Plant breeders’ right system from International Union for Protection of

New Varieties of Plants (UPOV)
 Farmers’ rights system from Food and Agriculture Organization (FAO) –
International Treaty on Plant Genetic Resources for Food & Agriculture
(ITPGRFA)
International Union for the Protection of New Varieties of Plants
(UPOV)

First Treaty : 1961, 6 European Members

First Enforcement : 1968, 4 European Members
Model Acts : UPOV 1961/1972, UPOV 1978, UPOV 1991
HQ : Geneva
The UPOV Convention
Provides a sui generis form of IPR, specifically adapted for the process of
plant breeding, and developed with the aim of encouraging breeders to
develop new varieties of plants.

UPOV gave the concept of:

 Plant Breeders’ Right (PBR)

 Essential requirements for PBR
 Duration of protection
 Researcher’s and exemption

Protection of Plant Varieties and Farmers’ Rights Act, 2001

“An Act to provide for the establishment of an effective system for protection
of plant varieties, the rights of farmers and plant breeders and to encourage
the development of new varieties of plants.”

Structure of the PPV&FR Act 2001

Chapter I: Preliminary: Title, Jurisdiction and Definitions (Section 1 to 2)
Chapter II: Protection of Plant Varieties and Farmers’ Rights Authority and
Registry (Section 3 to 13)
Chapter III: Registration of Plant Varieties and Essentially Derived Variety
(Section 14 To 23)
Chapter IV: Duration and Effect of Registration and Benefit Sharing (Section
24 To 32)
Chapter V: Surrender and Revocation of Certificate and Rectification and
Correction of Register (Section 33 To 38)
Chapter VI: Farmers’ Rights (Section 39 To 46)
Chapter VII: Compulsory Licence (Section 47 To 53)
Chapter VIII: Plant Varieties Protection Appellate Tribunal (Section 54 To 59)
Chapter IX: Finance, Accounts and Audit (Section 60 To 63)
Chapter X: Infringement, Offences, Penalties and Procedure (Section 64 To
77)
Chapter XI: Miscellaneous (Section 78 To 97)
Criteria for registration of Varieties
 PPV & FR Act 2001 provides protection of new varieties including
extant and farmers’ varieties.
 New plant varieties: novelty, distinctiveness, uniformity and
stability(NDUS)
 Extant varieties : distinctiveness, uniformity and stability (DUS) as
prescribed
 DUS stands for Distinctiveness, Uniformity and Stability.
 DUS Testing is examination of plant varieties for Distinctiveness,
Uniformity and Stability for the purpose of registration of plant
varieties under PPV & FR Act 2001
 Novelty, Distinctiveness, Uniformity and Stability are the essential
requirements for grant of protection to the varieties.

Novel (Article 15.3 a) if at the date of filing an application for registration

for protection, the propagating or harvested material of such variety has not
been sold or otherwise disposed of in India earlier than one year or outside
India, in the case of trees or vines earlier than six years, or in any other case
earlier than four years, before the date of filing such application.
Distinct (Article 15.3 b) means that the variety must be clearly
distinguishable by one or more important morphological, physiological or
other characteristics from any other variety whose existence is a matter of
common knowledge at the time of application.
Uniform (Article 15.3 c)means that the variety must be sufficiently
uniform or homogenous having regard to the particular features of its sexual
reproduction or vegetative propagation.
Stable (Article 15.3 d) means that the variety must remain true to its
description after repeated reproduction or propagation.
Compulsory Plant Variety denomination: After satisfying the above four
essential criteria every applicant shall assign a single and distinct
denomination to a variety with respect to which he is seeking registration.

Eligible Varieties
 New plant varieties including EDV of genera and species notified by
Central Govt.
 Extant varieties :Varieties Notified u/s 5 of the Seeds Act, 1966
 Farmers’ varieties; Varieties in the public domain
 Common knowledge varieties

Non-eligible Varieties
  Varieties commercial exploitation of which may breach public order or
morality or cause injury to human, animal and plant life and health or
may cause serious prejudice to the environment
 Varieties containing genetic use restriction technology (GURT) and
terminator technology

Period of Protection
 Trees and vines : 18 years from date of registration
 Other plants : 15 years from date of registration
 Extant varieties: 15 years from date of notification

Who can apply for registration

 Breeders or their successors or assignees
 Farmer or group / community of farmers
 Public or private institution

Salient features PPV&FR Act 2001

1. Protection of Plant Varieties and Farmers’ Rights Authority:
2. Functions of the authority
3. Power of authority of the Registrar
4. Registry
5. Criteria for registration of varieties
6. Persons who may make applications
7. Duration and effect and benefit sharing
8. Rights of breeder or his successor
9. Exclusion of certain varieties
10. Researcher’s rights
11. Farmer’s rights
12. Right to claim compensation and exception from payment of
fees
13. Constitution of a gene fund
14. Compulsory license
15. Plant Variety Protection – Appellate Tribunal
16. Storage of the reference seed sample
Rights under the Act
 Breeder’s Rights: Breeders will have exclusive rights to produce, sell,
market, distribute, import or export the protected variety. Breeder’s
authorization for production and commercial exploitation of the
protected varieties
  Researchers’ Rights : Researcher can use any of the registered
variety under the Act for conducting experiment or research. This
includes the use of a variety as an initial source of variety for the
purpose of developing another variety but repeated use needs prior
permission of the registered breeder.
 Farmers' Rights: Right to produce, save, sell, exchange, and share
protected varieties except sale as branded seeds andFarmer shall not
be liable to pay any fee in any proceeding before the Authority or
Registrar or the Tribunal or the High Court under the Act.
 Community Rights: the rights which provide for the compensation
for the contribution of communities in the evolution of new varieties

Types of varieties
New Variety: A new variety can be registered under the Act if it conforms
to the criteria for novelty, distinctiveness, uniformity and stability.

Extant variety: a variety available in india which is notified under section 5

of seeds act 1966 and about which there is a common knowledge in the
public domain

Essentially derived variety: it is predominantly derived from the initial

variety, or from a variety that is itself predominantly derived from the initial
variety, while retaining the expression of the essential characteristics that
result from the genotype or combination of genotypes of the initial variety

Farmer’s variety: a variety which has been traditionally cultivated and

evolved by the farmers in their fields or it is a wild relative or land race of a
variety about which famers have common knowledge.

Steps involved in the registration of new plant varieties

Persons who can apply for the registration of plant variety

 Application for registration of a variety can be made by:
 any person claiming to be the breeder of the variety;
 any successor of the breeder of the variety;
 any person being the assignee or the breeder of the variety in respect
of the right to make such application;
 any farmer or group of farmers or community of farmers claiming to be
breeder of the variety;
 any person authorized to make application on behalf of farmers and
  any University or publicly funded agricultural institution claiming to be
breeder of the variety.
6. Filing Requirements for the Registration of a Plant Variety
 Name, address and Nationality of Applicants as well as the address of
service of their agent.
 Denomination assigned to such variety.
 Accompanied by an affidavit that variety does not contain any gene or
gene sequences involving terminator technology.
 Complete passport data of parental lines with its geographical location
in India And all such information relating to the contribution if any, of
any farmer (s), village, community, institution or organization etc in
breeding, evolving or developing the variety.
 Characteristics of variety with description for Novelty, Distinctiveness,
Uniformity and Stability.
 A declaration that the genetic material used for breeding of such
variety has been lawfully acquired
7. Certificate of registration: The maximum time taken for issuing certificate
of registration is three years from the date of filing of the application for
registration of a plant variety.

8. Duration of registration
 For trees and vines (Perennials) - 18 years from the date of registration
of the variety.
 For other crops (Annuals) – 15 years from the date of registration of
the variety.
 For extant varieties – 15 years from the date of notification of that
variety by the Central Government under section 5 of the Seeds Act,
1966.
9. Exemptions provided by the act
 Farmers' Exemption: Farmer shall be entitled to produce, save, use,
sow, resow, exchange, share or sell his farm produce including seed of
a variety protected under this Act.
 Researcher's Exemption: (i) the use of registered variety for
conducting experiment. (ii) the use of variety as an initial source of
variety for the purpose of creating other varieties.

Benefit-sharing
From a variety developed by using indigenously derived genetic
resources. Any person, group of persons or govt. or NGO can file claim for
benefit sharing Benefit sharing confined to Indian citizens and
organizations. Benefit sharing for essentially derived varieties Quantum of
benefit to be decided by the PPV&FR Authority

Compulsory License: If seeds of a protected variety are not available in

adequate quantity and at reasonable price, the PPV&FR Authority may grant
license to a third party without asking the breeder of registered variety to
undertake seed production and distribution.

National Gene Bank

• to store the seed material including parental lines submitted by the
breeders of the registered varieties.
• The seed lot is stored under low temperature conditions at 5º C for the
entire registration period, and if necessary after few years of storage in
the National Gene Bank, the seed lot will be rejuvenated and
replenished at the cost of the applicant.
• The seed stored in the National Gene Bank will used for dispute
settlement or when an exigency arises for invoking compulsory
licensing provision. Such a seed deposition in the National Gene Bank
would dissuade market malpractices or violations as the sample in
custody can be drawn to verify the facts. When the period of
registration granted lapses, the material automatically moves to public
domain.
• National Gene Fund

National Gene Fund has been established by the Authority to

receive the contributions from:
• The benefit sharing received in the prescribed manner from the
breeder of a variety or an essentially derived variety registered under
the Act, or the propagating material of such variety or essentially
derived variety, as the case may be;
• The annual fee payable to the Authority by way of royalty;
• The compensation deposited by breeders and
• The contribution from any National and International organizations and
other sources.

The Gene Fund shall be utilized for

• Any amount to be paid by way of benefit sharing,
• The compensation payable to the farmers/community of farmer’,
• The expenditure for supporting the conservation and sustainable use of
genetic resources including in-situ and ex-situ collections and for
 strengthening the capability of the panchayat in carrying out such
conservation and sustainable use,
• The expenditure of the schemes relating to benefit sharing.

Infringement
An unauthorized person selling, exporting, importing or producing a
registered variety or selling, exporting, importing or producing beyond
agreed terms.
Punishment for infringement
 Falsely applying denomination of a registered variety: Imprisonment
– 3 months to 2 years, or with fine Rs. 50000 to Rs. 500000, or both.
 Selling, or exposing for sale, or possessing for sale of any variety
with a false denomination: imprisonment – 6 months to 2 years, or
fine Rs. 50000 to Rs. 500000, or both.
 Falsely representing as a registered variety: imprisonment - 6
months to 3 years, or fine Rs. 100000 – 500000, or both.
 Second and subsequent offence: imprisonment for one year to three
years, or fine of Rs. 2 – 20 lakh, or both.

DUS TEST
DUS Testing is examination of plant varieties for Distinctiveness,
Uniformity and Stability for the purpose of registration of plant varieties
under PPV & FR Act 2001. DUS test is necessary to register the new plant
varieties and it involves comparison of new variety with the existing varieties
for recording number of morphological and physiological characters by
growing new and existing varieties side by side.

DUS Test Guidelines

To set out the principles which are used in examination of DUS,
General Guidelines and Specific Guidelines for individual crop species or
group of species are required. These represent an agreed and harmonized
approach for the examination of new varieties.

Test guidelines have details on following points:

Subject

Material required

Conduct of tests

Methods and observations

Grouping of varieties

Characteristics and symbols

Table of characteristics

Explanation on the table of characteristics

Literature

Subject:

These test guidelines will be applied to all varieties of crop grown for grain
production.

Material required

The Plant Variety Protection (PVP) Authority decides when, where and
in what quantity and quality the seed material required for testing the
variety is to be delivered. Applicants submitting material from a country
other than India must make sure that all customs formalities are complied
with.

Quality standards: The seed should meet the minimum requirements for
germination capacity, moisture content and physical purity prescribed for
certified seed in India. Especially for storage, which requires a higher
standard, the applicant should state, the actual germination capacity which
should be as high as possible.

Health status: The plant material supplied should be visibly healthy, not
lacking in vigour, nor affected by any important pest or disease

Seed treatment: The seed material must not have undergone any treatment
unless the competent authorities allow or request such treatment. If it has
been treated, full details of the treatment must be given.

Conduct of tests

Duration: The minimum duration of tests should normally be two

independent similar growing seasons
Tests location: The tests should normally be conducted at two locations. If
any important characteristic of the variety cannot be seen at these places,
the variety may be tested at an additional place.
Conditions for conducting the examination: The field tests should be carried
out under conditions ensuring normal growth.
Test plot design: The design of the tests should be such that plants or parts
of plants may be removed for measurement and counting without prejudice
to the observations which must be made up to the end of the growing period
Gives details on—i) number of rows ii) row length iii) distance between rows
iv) distance between plants v) replications
Additional tests: Additional tests, for examining relevant characteristics, may
be established

Grouping of varieties
The selection of varieties of common knowledge to be grown in trial with the
candidate varieties and the way in which these varieties are divided in
groups to facilitate the assessment of distinctness is added by the use of
grouping characteristics.

Selection of characteristics:
The basic requirement a characteristics should fulfill before it is used for DUS
testing are:
 Results from a given genotype or combination of genotypes.
 Is sufficiently consistent and repeatable in a particular environment
 Exhibit sufficient variation between varieties to be able to establish
distinctiveness.
 Is capable of precise definition and recognition.
 Allows uniformity requirements to be fulfilled.
 Allows stability requirements to be fulfilled.

Characteristics and symbols

1. To assess distinctness, uniformity and stability, the characteristics and
their states as given in the Table of characteristics should be used.
2. Notes (1 to 9), for the purposes of electronic data processing, are given
opposite the states of each characteristic.
Explanations are provided about the used in the test guidelines as (*), (+)
etc.

(*) The characteristics that should be used every growing period for the
examinations of all varieties and should always be included in the description
of the variety, except when the state of expression of a preceeding
characteristic or regional environmental conditions render this impossible
Categories of characteristics
Grouping characteristics: those in which the documented states of
expression, even when produced at different locations , can be used, either
individually or in combination with other such characteristics:
(a) To select varieties of common knowledge that can be excluded from the
growing trial used for examination of distinctness
(b) To organize the growing trial so that the similar varieties are grouped
together
Standard characteristics: those which are approved by authority for
development of a variety description
Asterisked characteristics (denoted by *): which should always be
examined for DUS and included in variety description
Additional characteristics: Newly identified characteristics
Supportive evidence characteristics: not sufficient on their own to
establish distinctiveness but which may provide supporting evidence for
other differences
Special characteristics
Characteristics expressed in response to external factors: disease resistance,
chemical resistance
Chemical constituents: Chemical constituents
Combined characteristics: Characteristics that are expressed separately, but
may subsequently be combined
Type of assessment:
MG : Measurement by a single observation of a group of plants or parts of
plants
MS : Measurement of a number of individual plants or parts of plants
VG : Visual assessment by a single observation of a group of plants or parts
of plants
VS : Visual assessment by observation of individual plants or parts of plants

Table of characteristics

Contains list of all the characteristics used for DUS studies

Explanation on the table of characteristics

Detailed explanation of variation in all the characteristics with pictures and

diagrams

Literature

The article relating to the above morphological studies if available is cited.