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Plant Breeder's Rights and Farmer's Rights
In order to understand the fulI implications of intelIecctual property rights on agricultural production, one should also understand how 'plant breeder's rights' and patents function. A distinction between plant breeder's rights and patents should also be fulIy appreciated.
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As discussed earlier, plant varieties are excluded from the list of patentable articles. If so, how will these be protected, and when (if at all) can these be covered under patent law? These questions are briefly discussed in this section.
Plant breeder's rights
Plant varieties are generally protected in several countries through plant breeder's rights (PBRs) or plant variety rights (PVR). Through these rights, further propagation of the variety is restricted. Under the earlier convention (of 1978) due to 'International Union for the Protection of New Varieties (UPOV)', the breeder's rights did not prohibit the farmer from reuse (plantback) of farm saved seed of a variety from his own harvest for planting another crop. Furthermore, the protected plant variety could be freely used earlier - as a plant genetic resource for the purpose of breeding other varieties.
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Since the revised UPOV convention (of 1991) extends PBR to cover the reuse, under this provision, the farmers can not use his own seed without paying a royalty to the PBR holder. However, most countries are expected to limit the PBR with regard to farmer's plantback, although a farmer will not be able to sell the seed. Enforcement of such rights as above, in case of freely reproducible material, is only possible with large holdings of land, as in case of plantations or in very large farms, and in case of high value cash crops (e.g. cashew, spices, medicinal plants, etc.).
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Even in these cases, infringements are difficult to prove. When 'patents' or 'plant breeder's rights' are not available for breeding crop varieties, plant breeder (particularly private plant breeder in developed countries like Germany) may feel tempted to focus their efforts on developing hybrid varieties. Because hybrids do not breed true and give higher yields, no one would raise a crop from harvested seed that will give reduced yield. Thus hybrid varieties may give the plant breeder an advantage, which is equivalent to intelIectual property protection.
PBR has analogies to patents, but there are also important differences. Rights are granted for a limited period (usually 20 years) to the breeder. Breeder seeking PBR can not seek exclusive rights for a unique feature of his variety, although under patent this is allowed. For instance, using PBR, a breeder of the first 'blue rose' can not monopolize blue colour of rose.
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It will be open to other breeders to breed and protect blue roses, which are distinct from the first variety having blue roses. In contrast to this, under a patent, flower colour of roses can be protected. A PBR protected variety must fulfil some requirements.
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It should be (i) new, (ii) distinct, (iii) uniform and (iv) stable. 'New' means, the variety should not have been previously exploited commercially. 'Distinct' means, it should be clearly distinguishable from all other varieties known at the date of application for protection. 'Uniform' means that all plants of the variety should be sufficiently uniform. 'Stable' means that the variety can be reproduced and multiplied without losing its characteristics and uniformity.
In India, new crop varieties are bred at state Agricultural Universities and at state Departments of Agriculture. The seed of new crop varieties t1ows freely to farmers and to the private companies and no royalty is payable. This really encouraged farmers in the past, to grow new varieties leading to green revolution. Any provision of patents for crop varieties in India will lead to the following problems: (i) the cost of seed will increase; (ii) there will be delay in the spread of a new variety to a small segment of farmers.
If multinational companies are allowed patents on crop varieties in India to encourage then to invest in seed research and development, they will have monopoly. The farmer will not be allowed to export or supply seed multiplied by him to other farmers. This may not be in the interest of Indian Agriculture at least for many years to come.
In the present cirumstances, for India, following options are available: (i) uniform patenting of all inventions including plants; (ii) patenting of plants not obligatory, but plant breeder's rights (PBRs) obligatory; (iii) complete exclusion of plant varieties from any form of IPR. The third option allows the present practice to continue, where complete freedom for introduction and promotion of new varieties is allowed. This option is considered by some to be the best for Indian Agriculture at least for the time being although there is considerable pressure from developed countries on India to accept some form of IPR. (see later for Indian PPV and FRA).
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