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Intellectual Property Rights (IPRs) for Plant Breeding Introduction
Plant breeding in recent years has been on the threshold of a major change, firstly,due to prospects provided by biotechnological approaches and secondly, due to recent emphasis on 'participatory plant breeding'. This trend is going to continue and will have a major impact on plant breeding.
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Plant breeding will also be influenced by the provisions of a number of international instruments (treaties) including the 'Convention on Biological Diversity (CBD)'. This change in the emphasis in plant breeding will demand and allow investments by private industry in a big way. The role of farmers in the form of participatory plant breeding and the equitable sharing of benefits by them in the form of farmers' rights will also be witnessed. Consequently, the plant genetic. resources (PGRs) and the products of plant' breeding will have to be adequately covered by intellectual property rights and protection. In several developing countries including India, plant breeding work has so far been primarily designed to promote agricultural production by the farmers, so that it is mainly concentrated at Agricultural Universities and Research Institutes.
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Consequently, in these countries, no intellectual property law existed in the past to protect the products of plant breeding. However, this state could not continue indefinitely, and the intellectual property law has already started responding to the changes being brought about by biotechnology industry. It will also be necessary to reward equitably the plant breeders, the farmers and the biotechnologists, for their efforts, so that they are encouraged to invest and work further, utilizing the new techniques. Under TRIPS (Trade Related Intellectual Properties) agreement also, as members of WTO, many developing countries will have to provide protection for plant varieties either 'by patents or by an effective sui generis system or by any combination thereof'. In view of this, the plant variety rights and protection were widely discussed in the last decade of the 20th century and in the early years of the 21st century.
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At the international level. a major revision of PVP (plant variety protection) in the UPOV. Convention of 1991 seeks to provide for a better control of the plant breeder (UPOV= International Union for the Protection of New Plant Varieties). The patents and plant breeders' rights (PBRs) can no longer be operated in isolation from each other, so that it is necessary to understand the difference and relationship between the two systems. It has been recognized that most varieties presented for plant variety protection, may not qualify for patent protection, since it may be difficult to prove that the production of a variety really involved an innovative step. It will also be difficult to describe the method of breeding in a way that may be repeatable.
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Despite these difficulties, in some developed countries (e.g., USA, Australia), both patents and plant breeders rights are used for plant variety protection. In European Union, although patents have been allowed particularly for transgenic crops, one is still uncertain whether patents for protection of plant varieties are freely available.
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In several developing countries like India also, such a protection is in the process of taking legal status. The adoption of the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) under the aegis of GATT (WTO), and the pressure of private industry, have led to enactment of 'Protection of Plant Varieties and Farmers' Rights Act' (PPV&FRA), which was approved by the Parliament in 2001 (see later for details). Indian Patent Act 1970 is also being amended.
It has been recognized that the enactment of patent legislation and strong Plant Variety Rights (PVR) similar to those in developed countries are probably not appropriate for developing countries like India, at least in the short term. In view of this, amend d draft of 'Protection of Plant Variety and Farmers' Rights Act (PPV & FRA)' was prepared and has now been approved by the Parliament. Necessary steps were being taken in the year 2002 to implement PPV &FRA. The amended Indian Patent Act was still to be ratified in the year 2002.
In agriculture sector, the Plant Breeders Rights (PBRs) are' used in most OECD (Organization of Economic Cooperation and Development) countries and some other developing countries. There are also arguments for and against the use of plant breeders' rights (PBRs) in countries like India. With the expansion of private seed industry in India, however, there is pressure from this industry to provide due reward for their investments, so that innovations in plant breeding may be encouraged.
There are, however, fears that PBRs may hamper the free supply of seed to the farmers thus also leading to' loss of genetic diversity. However, hardly any data on the impact of PBRs on seed industry is available, to assess the effect of PBRs on loss of biodiversity. These and related aspects of IPR relevant to crop varieties and plant genetic resources (PGRs) will be discussed briefly in this chapter. The Indian PVP&FRA (Plant Variety Protection and. Farmers Right Act) 2001, which was approved by the parliament in August 2001 and given assent by the President of India in November 2001 will also be discussed.
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