Chap 28. Intellectual.p65

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Seed Testing Laboratory, Department of Agriculture, Durgapura, Rajasthan. ..... application may be filed by anyone who is a national or resident of a PCT ...
28 Intellectual Property Rights ASHUTOSH RAI AND ANTRA CHATTERJEE INTRODUCTION The ability of the mind to come to correct conclusions about what is true or real, and about how to solve problems depends on the learning the things around and the mental ability of person. This power of solving problems and way of presentation his thoughts is known as the intellect of that person. These thoughts, creations and innovations of a person remain protected as long as these are not expressed in a tangible form. But Intellectual property (IPs) can benefit the whole society only when expressed in a tangible form and then there is need of protection becomes necessary to give due credit to its creator or owner. IP is any creative work or invention considered to be the property of its creator. Often, intellectual property rights are recognized and protected under the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights, such as the ability to publish to various markets, license the manufacture and distribution of inventions, and sue in case of unlawful or deceptive copying. Common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights, plant varieties and farmer’s rights (PPV&FR) and trade secrets. HISTORY OF INTELLECTUAL PROPERTY IN INDIA The IP is as old phenomenon as our evolution as human. The protection of IP started with increasing environmental and social competition. To live on earth within its limited natural resources human started to select things on the basis of his intellect and innovative thinking. Agriculture began when early humans realized that some of the plants growing in the wild could be used for food, clothing and health care. Humans all over the world identified, selected and cultivated only those plants that were useful to them and were best suited for cultivation in their regions. Generations of farmers, with their continued selection and conservation, have created a rich wealth of varieties in many crops. Each crop plant is considered to have originated in a specific region of the world. Crop plants from these regions spread to other parts of the world during different periods of our agricultural history. This spread mainly took place as a result of

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farmer-to-farmer sharing and exchange and sale of planting material. Human migration, travel, trade and war also helped in the spread of crops to new regions far away from the place of origin. These new crop plants, introduced from a far away land, were again selected by local farmers and adapted to local conditions and local needs. This spontaneous process given them a huge collection of crop plants that ware superior over their wild relatives for their particular traits and made India rich in biodiversity. In case of art works also it continues long back, the artists and craftmen makes their distinctive marks on their creations before selling them, so that the creations can distinguished and the quality of the work may be known as the creator’s mark. But the modern era of Intellectual Property started in India since 1856 in case of patent, by granting some exclusive rights to inventor initially for 14 years. Again the act was re-enacted after some minor modifications in year 1859. The major need of protection being realized after advent of the Gutenberg Machine (Printing Press), because regional governments have the privilege to give exclusive rights to printers and publishers, who use to enjoyed the monopoly for their personal interest. CATEGORIES OF INTELLECTUAL PROPERTY The TRIPS Agreement of WTO recognizes seven categories of intellectual property rights, which were governed by several WIPO administered treaties 1. 2. 3. 4. 5. 6. 7.

Copyright and Related Rights Trademarks, Trade Names and Service Marks Geographical Indications Industrial Designs Patents Layout Designs of Integrated Circuits Undisclosed Information

Copyright and Related Rights Copyright is the most commonly used law of protections of all intellectual property concerned with the work of the human intellect. The aim of copyright is the protection of literary and artistic works. These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases. Copyright protects the expression of thoughts, and not ideas. If any one imagines a story, this, as such, is not protected under copyright but the expression in form of written story, pay based on that story is copyrightable. Different writers may build stories based on a similar plot. But when you express it in a written way or in, say, a short story, or a play, the expression of the plot in that story will be protected. For example, any one takes a photograph of sunrise, or makes drawing of sunrise; the creation is his copyright. But the phenomenon of sunrise is not copyrightable. Any person in society can express it in his own words, but nobody can use the creations of others as such, in any form. The term of protection for copyright in the Berne Convention the minimum requirement is 50 years after the death of author and for photographic works and works of applied art, the minimum term of protection is 25 years after the making of the work. Trademarks, Trade Names and Service Marks As long as 3000 years ago, Indian craftsmen used to engrave their signatures on their artistic creations before sending them to Iran. A trademark is a sign that individualizes the goods

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of a given enterprise and distinguishes them from the goods of its competitors. Trademark may consist of words, designs, letters, numerals or packaging, slogans, devices, symbols, etc. Trademarks usually ensure a consistent level of quality – be it good or bad. By that the mark helps us to use your experience either to return to a desirable product or service or to avoid an undesirable one. Geographical Indications Geographical indications are notice stating that a given product originates in a given geographical area. The best known examples of geographical indications are those used for wines and spirits. For instance, the geographical indication Champagne is used to indicate that a special kind of sparkling wine originates in the Champagne region of France. In the same way, Cognac is used for brandy from the French region around the town of Cognac. However, geographical indications are also used for products other than wines and spirits, tobacco from Cuba, or for cheeses such as Roquefort. They may also be used for industrial products, as Sheffield is for steel. These are some well known GI from India such as Banaras Brocades and Sarees, Handmade Carpet of Bhadohi, Lucknow Chikan Craft, Mango Malihabadi Dushehari, Madhubani Paintings, Basmati Rice, Darjeeling Tea, Kangra Tea, etc. Industrial Designs Industrial design is that aspect of a useful article, which is ornamental or aesthetic. It may consist of three-dimensional features such as the shape or surface of the article, or two- dimensional features such as patterns, lines or color. As with other forms of intellectual property it may be protected. By protecting an industrial design, the owner is ensured an exclusive right against its unauthorized copying or imitation by third parties for a period of time, which is typically for 5 years with the possibility of renewal, up to a maximum of 15-25 years depending on the particular national law. The TRIPS provides for protection of a minimum of 10 years. In order to be registered an Industrial Design it must be ‘new’ or ‘original’ and must be reproducible by industrial means. Patents Patents are granted as an exclusive right by the Government for an invention for a limited period of time in consideration of disclosure of the invention by the inventor or his representative. An invention is “a new product or process involving an inventive step and capable of industrial application.” Patentee enjoys exclusive right to prevent a third party from an unauthorized act of making, using, offering for sale, selling or importing the patented product or process within the country during the term of the patent. A patented invention becomes free for public use after expiry of the term of the patent or when the patent ceases to have effect on account of nonpayment of renewal fee. In India patents are given mainly in following areas • Art, Process, Method or Manner of manufacture; • Machine, Apparatus or other Articles; • Substances produced by Manufacturers • Computer Software which has Technical application to Industry or is used with Hardware • Product Patent for Food/Chemical/Medicines or Drugs. Layout Designs of Integrated Circuits Layout design (topography) of integrated circuits appeared with computer technology and has acquired importance as the technology makes rapid advances. The programming instructions

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on a computer chips are implemented through a circuit printed on semiconductor layers. The term ‘Layout design’ is used for layout of transistors and other circuitry elements and includes lead wires connecting such elements and expresses in any manner in a semiconductor integrated circuit. Semiconductor integrated circuit means a product having transistors or other circuitry elements which are inseparably formed on a semiconductor material and designed to perform an electronic circuitry function. The design of circuit chips requires great investment of knowledge, skills and capital and this need to be protected as IP. The right in topography aims to prevent copying of layout designs but reverse engineering to come up with improved design is regarded as fair. The criterion of protecting integrated circuits is only originality; it not necessarily should be novel or having inventive step. Protection of layout design confers no monopoly right; independent development of a design, identical with a protected design is allowed. Undisclosed Information Undisclosed information or trade secrets are any business information on a new manufacturing method, know-how, chemical formulae, pattern, idea, blueprints or prototypes, sales methods, distribution methods, data obtained from experimental uses of a new product, results of clinical trials of a new drug, optimal conditions for the operation or manufacturing processes, business schedules, details of price agreements, list of clients, advertising strategies and new directions in R&D. There is no need to register a trade secret, and is guarded by using means like confidentiality agreement, physical restrictions and software securities. TRIPs agreement provides for trade secret protection under the article related to protection of undisclosed information. TRADITIONAL KNOWLEDGE AND BIO-PIRACY The folklore and traditional knowledge of farmers has made a significant contribution in the development of new crop types and biodiversity conservation. The definition of the traditional knowledge as used by the WIPO includes indigenous knowledge relating to categories such as agricultural knowledge, medicinal knowledge, biodiversity-related knowledge, and expressions of folklore in the form of music, dance, song, handicraft, designs, stories and artwork. The traditional medicine in India codified in the Charaka Samhita, Susrutha, etc. and also the folk stream comprising of the old traditions has great value which needs to be acknowledged. Many of the modern drugs are developed by taking leads from the folk uses and the traditional community. Recently some concerns have arisen regarding the granting of patents to protect this traditional knowledge as many of the patents are being granted for knowledge related inventions which do not fulfill the basic requirements of novelty and invention. India needs protection not only for the IPRs but also against the depredations of the MNCs trying to make a killing out of our own ageold knowledge. Some of the important biopiracy cases are the followings : Turmeric. A patent for turmeric was granted to the University of Mississippi Medical Center for “Use of Turmeric in Wound Healing.” But it has been used in India for thousands of years for various uses and is now believed to be able to treat dysentery, arthritis, ulcers and even some cancers. It is also found to protect the liver and is also used an important content in the medicines used for treating cancer. Therefore, it was challenged by Dr. R.A. Mashelkar, an Indian scientist who has done much to awaken India to Intellectual Property Rights issues. After months of struggle the patent has been annulled by the US Patent office. Neem. A patent had been granted to the firm of W.R. Grace & Co. by the European Patent Office, Munich for ‘fungicidal uses of neem oil’ which was challenged by Vandana Shiva (an icon

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for third world rights in 1996). Thus, the ancient Indian texts were flagged to show that there was no novelty factor in it rather it has been used in India for many centuries. Thus, this patent was also cancelled by the European Patent office. Basmati. The patent for Basmati rice was granted to Texas-based Rice Tec Inc. in 1997. The Texas Company was already trading in basmati rice with such brand names as Texmati, Jusmati and kasmati. The American Patent Office declared: “The invention relates to novel rice lines and to plant and grains of these lines and to a method for breeding these lines. The invention also relates to a novel means for determining and starch properties of rice grains and its use in identifying desirable rice lines.” The Texas Company demanded for patent on the ground that it was derived from Indian Basmati crossed with semi-dwarf varieties, including Indica varieties. India claimed that basmati covers about 15 per cent of the area under rice cultivation and that the country exported large quantities of Basmati rice earning foreign exchange of Rs 1,100 crore in 1996-97. It is unique to Punjab in the same way that champagne is unique to certain areas in France. Thus, it is clear case of stealing markets for Indian aromatic rice varieties and therefore, the patent was cancelled. Bitter Gourd (Karela). New Jersey-based Company, Cromak Research Inc, obtained an American patent for an edible herbal mixture comprising karela, jamun, gurmar and brinjal. However, India claimed that karela has been used here for long as an anti-diabetic mixture and is well documented in treatises as the Wealth of India and the Compendium of Indian Medicinal Plants. Therefore, this case expresses how the traditional knowledge of India is exploited abroad and is a clear case of biopiracy. To combat these issues of biopiracy we need to strengthen our intellectual property laws to protect our natural as well as intellectual wealth. Plant Breeding related IP Rights in India The Protection of Plant Varieties and Farmers’ Rights Act was passed by the Indian Government in 2001. After India became signatory to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPs) in 1994, a legislation was required to be formulated. Article 27.3 (b) of this agreement requires the member countries to provide for protection of plant varieties either by a patent or by an effective sui generis system or by any combination thereof. Thus, the member countries had the choice to frame legislations that suit their own system and India exercised this option. The existing Indian Patent Act, 1970 excluded agriculture and horticultural methods of production from patentability. The sui generis system for protection of plant varieties was developed integrating the rights of breeders, farmers and village communities, and taking care of the concerns for equitable sharing of benefits. Some important terms related to this rights are : Variety. A plant grouping except microorganisms within a single botanical taxon of the lowest known rank, which can be defined by the expression of the characteristics resulting from a given genotype of a plant of that plant grouping; distinguished from any other plant grouping by expression of at least one of the said characteristics; and considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety. Extant variety. A variety available in India which is notified under section 5 of Seeds Act, 1966, or ‘farmers’ variety, or a variety about which there is common knowledge, or any other variety which is in public domain.

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Essentially derived variety. A variety shall be said to be essentially derived when it: is predominantly derived from such initial variety, or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety; is clearly distinguishable from such initial variety, and conforms (excepting for the differences which result from the act of derivation) to such initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety. Breeder. Any person or group of persons or a farmer or group of farmers or any institution which has bred, evolved or developed any variety. Farmer. Any person who cultivates crops by cultivating the land himself, or cultivates crops by directly supervising the cultivation of land through any other person, or conserves and preserves, severally or jointly, with any person any wild species or traditional varieties, or adds value to such wild species or traditional varieties through selection and identification of their useful properties. Farmers’ variety. A variety which has been traditionally cultivated and evolved by the farmers in their fields, or is a wild relative or land race of a variety about which the farmers possess common knowledge. Plant Varieties and Farmer’s Rights (PPV&FR) The need of improved, new plant varieties having high yield and quality attributes are the prime importance for any grower and agriculture based industries. High yield, disease resistance and abiotic stress tolerance increases the acceptability, economical values of crop and derived products many fold. The agriculture based economies are growing rapidly due to introduction of these new varieties and technologies. New varieties take many years to develop with tremendous efforts by skilled persons in the field and with high degree of investments. The return of investment should properly be provided to investor, but the propagation materials once transferred from the breeder to grower results very less returns to a plant breeder initially, thus a plant breeder is unable to secure the economic value of the variety. So, to accelerate agricultural development, it is necessary to protect plant breeder’s rights to stimulate investment for research and development. Such protection is likely to facilitate the growth of the seed industry which will ensure the availability of high quality seeds and planting material to the farmers. The grants of exclusive rights related to variety developed by a breeder have given the way to provide incentives for private investments in plant breeding programs of many plant varieties. The opportunity to obtain exclusive rights in respect of new varieties provides successful plant breeders with a better chance of recovering their costs and accumulating the funds necessary for further research and developments. The basic requirements for protection are novelty, distinctness, uniformity and stability (DUS). The variety should have a single and distinct denomination. Duration of the protection shall be 18 years for trees and vines, 15 years from the date of notification for extant varieties, and 15 years in other cases. A variety derived from an initial variety can be registered/protected. For such essentially derived variety (EDV), authorisation by the breeder of the initial variety to the breeder of the EDV shall be needed on mutually agreed terms and conditions. Farmers are entitled to save, use, sow, re-sow, exchange, share or sell his farm produce, including seed of a protected variety. However, farmers will not be entitled to sell branded seed of a protected variety. The Act provides for recognition of the role of traditional communities in conserving and preserving genetic resources of land races and wild relatives. There shall be a

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compensation for contribution of village or local communities in evolution of a variety available through a National Gene Fund in the prescribed manner and through suitable schemes. UPOV (The Union for the Protection of New Varieties of Plants) The UPOV is an inter governmental organization with headquarters in Geneva and works with WIPO. The term UPOV is taken from French name of this organization that is Union international pour la Protection des Obtentions Vegitales. The organization works to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for social welfare. UPOV was established by International Convention for the Protection of New Varieties of Plants. The Convention entered into force in 1968, now it has 70 member states till 2011. Breeder’s Right in India. The breeder (or his successor, agent, licensee) would have the rights to produce, sell, market, distribute, import or export the variety. Researchers’ shall have rights to use plant variety for experiment or research or as an initial source of variation for the purpose of creating other varieties excepting the repeated use of a protected variety for commercial production of another variety. Farmer’s Right in India. The farmers’ rights of the Act define the privilege of farmers and their right to protect varieties developed or conserved by them [Chapter VI PPV&FR 2001]. Farmers can save, use, sow, resow, exchange, share and sell farm produce of a protected variety except sale under a commercial marketing arrangement (branded seeds) [Section 39 (1), (i)–(iv) PPV&FR 2001]. Further, the farmers have also been provided protection of innocent infringement when, at the time of infringement, a farmer is not aware of the existence of breeder rights [Section 42 (1) PPV&FR 2001]. 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 the material so selected and preserved has been used as donor of genes in varieties registrable under the Act. The expected performance of a variety is to be disclosed to the farmers at the time of sale of seed/propagating material. A farmer or a group of farmers or an organization of farmers can claim compensation according to the Act, if a variety or the propagating material fails to give the expected performance under given conditions, as claimed by the breeder of the variety. A farmer who has bred or developed a new variety shall be entitled for registration and other protection in same manner as a breeder of a variety. National Seed Act, 1966 has been provided as a tool to safeguard the farmer’s right in concern with regulating the quality of certain seeds for sale, and for matters. Government has established National Seed Certification laboratories to monitor the seed quality and other related values. And no person shall, himself or by any other person on his behalf, carry on the business of selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of any notified kind or variety, unless(a) such seed is identifiable as to its kind or variety; (b) such seed conforms to the minimum limits of germination and purity specified under clause of section 6 of National Seed Act, 1966; (c) the container of such seed bears in the prescribed manner, the mark or label containing the correct particulars thereof, specified under clause (b) of section 6 National Seed Act, 1966; and

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(d) the complies with such other requirements as may be prescribed in National Seed Act, 1966. TABLE 1 List of seed testing laboratories in India States Andhra Pradesh

Assam

Bihar

Chattisgarh Delhi

Gujarat

Goa

Address of Laboratory Seed Testing Laboratory, 1/561-A, Smith road, Cuddapha, (AP) Andhra Pradesh State Seed Development Corporation, Quality Control Laboratory, Hyderabad. Seed Testing Laboratoy, Tadapaligudam-534101, Distt. West Godavari. National Seeds Corporation Ltd., Quality Control Laboratory, Lallaguda, Secunderabad A.P. State Seed Development Corporation Quality Control Laboratory,Vijayawada. A.P. State Seed Certification Agency, Mini Seed Testing Laboratory, Govt. Farm, Amravathi, Guntur. A.P. State Seed Certification Agency, Seed Testing Laboratory, Rajendra Nagar, Hyderabad-500030. Seed Testing Laboratory, Chandmari Road, Silchar, Distt. Cachar. Seed Testing Laboratory, Assam State Seed Certification Agency, Ulubari, Guwahati-781007. Seed Testing Laboratory, Assam State Seed Certification Agency, Jail Road, Barbheta, Jorhat. Seed Testing Officer, Assam State Seed Certification Agency, Barapura Main Road, Bonganigaon-783380. Seed Testing Laboratory, Bihar Krishi Mahavidyalya, Sabaur Distt. Bhagalpur. Regional Seed Testing Laboratory, Bihart Krishi Mahavidyalaya, Dholo Distt, Muzaffarnagar. Regional Seed Testing Laboratory, Krishi Bhawan, Sahabganj Seed Testing Laboratory, Mithapur Farm, Patna. Regional Seed Testing Laboratory, Laharia Sarai, Distt. Darhbanga Seed Testing Laboratory, Patna Seed Certification Bhawan, Krishi Bhawan, Mithapur, Patna. Seed Testing Laboratory, Krishak Nagar, Raipur. National Seeds Corporation Ltd., Quality Control Laboratory Beej Bhawan, Pusa Complex, New Delhi-110012. Seed Testing Laboratory, (Delhi Administration), Mori Gate, Near Inter State Bust Stand, New Delhi. Seed Testing Laboratory, Mini Krishi Bhawan, Nilam Baug, Junagarh- 362001. Seed Testing Laboratory, Sector 15, Gandhi Nagar-361 001 Seed Testing Laboratory, University Campus, Navsari, Distt. Valsad. Seed Testing Laboratory, Gujarat State Seed Certification Agency, “Beej Pramanan Bhavan”, Opp. Gokul Rowhouses, Nr. Syamal Rowhouses Section-5 Bus Stop, Syamal Road, Satellite, Ahmedabad-15. Seed Testing Laboratory, Agriculture & Horticulture Research Station, Ela, Old Goa.

500 Haryana

Himachal Pradesh Jammu & Kashmir

Jharkhand

Karnataka

Kerala Madhya Pradesh

Maharashtra

Manipur Meghalaya Mizoram Odisha

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Seed Testing Laboratory, IADP C/o Deputy Director of Agriculture, Karnal. Seed Technical Unit, Department of Plant Breeding, HAU, Hissar. Quality Control Laboratory, Haryana Seed Development Corporation, T.T. Road, Near Pipli, Umri Distt. Kurukshetra. Seed Testing Laboratory, (Halta) IADP, Palampur-176 061 (HP) Seed Testing Laboratory, Chambaghat-173 213, Distt. Solan (HP) Seed Testing Laboratory, Department of Agriculture, Lalmandi, Srinagar Seed Testing Laboratory, Department of Agriculture, Talab Tilloo, Jammu-180 002. Regional Seed Testing Laboratory, Krishi Golpahari, Tatanagar, Jamshedpur. Regional Seed Testing Laboratory, Combind Building, Agriculture Department, Dumka. Seed Testing Laboratory, Lalbagh, Bangalore-560 004. Seed Testing Laboratory, P.B. Road, Dhawad-580 004. Seed Testing Laboratory, Karnataka State Seed Certification Agency, Hebbal, Bangalore. Seed Testing Laboratory, Parattukonam, Thiruvananthapuram. Seed Testing Laboratory, Kalarcode P.O., Alleppey-688 003. Seed Testing Laboratory, M.P. State Seed Certification Agency, Krishi Nagar, Adhartal, Jabalpur. Seed Testing Laboratory, Department of Agriculture, Front of Mela Road, Gwalior474 002. Seed Testing Laboratory, Department of Agriculture, Moti Tabela, Indore. M.P. Fodder Seed Production and Distribution Project, 19-M.P. Nagar, Zone-II, Bhopal-462 001. Seed Testing Laboratory, Maharaja Bagh Square, Nagpur. Seed Testing Laboratory, Department of Agriculture, New Modha, Parbhani-431 401. Quality Control Laboratory, Maharashtra State Seeds Corporation Ltd. Seed Testing Laboratory, Department of Agriculture, Ashirwad Building, Rautwadi, Akola-444 005. Seed Testing Laboratory, Department of Agriculture, Agri., Engg. Workshop Premises, Dargah Road, Aurangabad-431 005. Seed Testing Laboratory, Department of Agriculture, New Administrative Building, Shivaji Nagar, Pune. Quality Control Laboratory, Maharashtra State Seeds Corporation Ltd., Plot No.8, Shastri Nagar, Akola. Seed Testing Laboratory, Department of Agriculture, Mantrpukhari-795 002. Seed Testing Laboratory, Department of Agriculture, Fruit Garden, East Kashi Hills, Shillong-793 003. Seed Testing Laboratory, Department of Agriculture, Mizoram, Aizwal. Seed Testing Laboratory, Plot No. 564, Dak Bunglow Chhak, Old Town, Bhubneshwar-751 002. Seed Testing Laboratory, Orissa State Seed Certification Agency, (A Govt. of Orissa Undertaking) C-66 Palaspalli, Bhubaneshwar-751009.

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Puducherry Punjab Rajasthan

Sikkim Tamil Nadu

Tripura Uttar Pradesh

501

Seed Testing Laboratory, At – P.O. Balia, Distt. Balasore. Seed Testing Laboratory, Orissa State Seed Certification Agency, Ekamra Chhak, PIO Sarsara; Sambalpur-768028. Seed Testing Laboratory, Krishi Vigyan Kendra Campus, Iyyankuttipalayam, Puducherry-605 009. Seed Testing Laboratory, Punjab Agricultural University, Ludhiana. Seed Testing Laboratory, Gurdaspur (Punjab). Seed Testing Laboratory, Department of Agriculture, Durgapura, Rajasthan. Seed Testing Laboratory, Department of Agriculture, Sriganganagar, Rajasthan. Seed Testing Laboratory, Department of Agriculture, Kota, Rajasthan. Seed Testing Laboratory, Department of Agriculture, Jodhpur, Rajasthan. Seed Testing Laboratory, Department of Agriculture, Majitar, Sikkim-737 135. Seed Testing Laboratory, Department of Seed Certification, Subramaniampuram, Coimbatore-641013. Seed Testing Laboratory, Tamil Nadu Agricultural University, Coimbatore. Seed Testing Laboratory, Department of Seed Certification, Alwar Nagar, Nagamalai Pundu Kottai, Madurai-625 019. Seed Testing Laboratory, Department of Seed Certification, Circuit House Backside Collectorate Compound, Dharampuri-636 705. Seed Testing Laboratory, Department of Seed Certification, South Street, Manarpuram, Trichirapalli-620020. Seed Testing Laboratory, Department of Seed Certification, Kattithottam Mariamman, Kali Post, Thanjavaur-613001. Seed Testing Laboratory, Nirubar Colony, Palayam Kattai, Tirunelveli-627 002. Seed Testing Laboratory, Department of Seed Certification, Panjepettai, Kancheepuram-613 502. Seed Testing Laboratory, Research-cum-Demonstration Farm, Department of Agriculture, Arundheri Nagar, Agartala. Regional Agriculture Seed Testing & Demonstration Station, Department of Agriculture, Barabanki. Regional Agriculture Seed Testing & Demonstration Station, Department of Agriculture, 9515, Civil Line, Jhansi. Regional Agriculture Seed Testing & Demonstration Station, Department of Agriculture, Meerut. Seed Testing Laboratory, UP State Seed Certification Agency, Govt. Garden Campur, Kariappa Road, Alambagh, Lucknow. Regional Agriculture Seed Testing & Demonstration Station, Department of Agriculture, Azamgarh. Seed Testing Laboratory, UP State Seed Certification Agency, 35-C/6, Rampur Bagh, Bareilly. Regional Agriculture Seed Testing & Demonstration Center, Department of Agriculture, 32-8, Civil Line, Mathura. Regional Agriculture Seed Testing & Demonstration Center, Department of Agriculture, Station Road, Hardoi.

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Seed Testing Laboratory, Department of Seed Technology, C.S. Azad University of Agriculture & Technology, Kanpur. Uttarakhand Regional Agriculture Seed Testing & Demonstration Center, Department of Agriculture, Haldwani, Distt. Nainital. Seed Testing Laboratory, College of Agriculture, G. B. Pant University of Agriculture & Technology, Pantnagar-263 145. Seed Testing Laboratory, Seed & Tarai Development Corporation, P.O. Haldi, Pantnagar-263146. Seed Testing Laboratory, Uttaranchal State Seed Certification Agency, Dehradun. West Bengal Seed Testing Laboratory, Agriculture Farm, Kalna Road, Department of Agriculture, Burdwan. Seed Testing Laboratory, Department of Agriculture, Netaji Subhash Chandra Bose Road, Kolkata-700 040. Seed Testing Laboratory, Department of Agriculture, Netaji Subhash Chandra Bose Road, Kolkata-700 040. Central Seed Testing National Seed Research & Training Centre, G.T. Road, Collectry Farm, Laboratory Department of Agriculture, Varanasi. Central Seed Testing Laboratory, Central Institute of Cotton Research, (ICAR), Nagpur.

Requirements and Process of Protection for Plant Varieties and Breeder’s Right For a variety to be eligible for registration, it must conform to the criteria of novelty, distinctiveness, uniformity and stability (NDUS), as described below [Section 15 (1)–(3)]. For the purposes of the Act, a new variety shall be deemed to be: (a) Novel, if, at the date of filing of the application for registration for protection, the propagating or harvested material of such a variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety (i) in India, earlier than one year, (ii) 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 applications. Provided that a trial of a new variety which has not been sold or otherwise disposed off shall not affect the right to protection. Provided further that the fact that on the date of filing the application for registration, the propagating or harvested material of such variety has become a matter of common knowledge other than through the aforesaid manner shall not affect the criteria of novelty for such variety. (b) Distinct, if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application. (c) Uniform, if subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its essential characteristics. (d) Stable, if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

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The variety will be subjected to such distinctiveness, uniformity and stability tests as shall be prescribed for registration. The conduct of DUS tests for new varieties is based on visual assessments, giving marks and measuring of certain characteristics of a variety. Environmental influences can more or less influence and modify the expression of genetic conditioned qualitative and quantitative characteristics. Normally, it should be determined on which environmental influences have the smallest influence. A list of characteristics, that are observed are listed in the Technical Guidelines published by the Institute in the Official Gazette. The Technical Guidelines for certain species and plant groups are based on the UPOV Test Guidelines. The Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FRA) shall decide when, where and in what quantity and quality of the seeds material are required for testing a variety denomination applied for registration under the Protection of Plant Varieties & Farmers’ Rights (PPV & FR) Act, 2001. The minimum duration of tests shall normally be at least two independent but similar growing seasons. The test shall normally be conducted at least at two test locations. If any essential characteristics of the variety are not expressed for visual observation at these locations, the variety shall be considered for further examination at another appropriate test site or under special test protocol on expressed request of the applicant, for which additional quantity of seeds shall be required. The field test shall be carried out under conditions favoring normal growth and expression of all test characteristics. The size of the plot shall be such that plants or parts of plant could be removed for measurement and observation without prejudicing the other observations on the standing plants until the end of the growing period. Each test shall include a minimum of plants for open cultivation and plants for greenhouse cultivation which should be divided among three replications as prescribed for that species by PPV&FR Authority. Separate plots for observation and for measurement can only be used if they have been subjected to similar environmental conditions. All the replications shall be sharing similar environmental conditions of the test location and also some additional test protocols for special purpose shall be established by the PPV&FR Authority. Advancement in the field of Plant Variety Protection Basic advances have been made in the field of plant variety protection by means of DNA based molecular marker, Gene sequences stored in different databases. In past, genetic purity determinations were carried out by the evaluation of morphological or physiological traits expressed by seed, seedlings or mature plants. Seed observations and field testing are often inaccurate because environmental stress conditions during seed or seedling/plant development can mask the expression of specific morphological or physiological traits. Besides that, the time required to grow and evaluate a large number of seed lots may be a major limitation to many seed testing laboratories, particularly if mature plants are needed for that. In new era techniques like electrophoretic systems employ either starch, polyacrylamide or agarose gels for protein/isoenzyme separation based on molecular size and charge density. Another new approach is the use of isoelectrically focused gels that separate proteins/isoenzymes based on their position within a pH gradient are being utilized. The roles of different bio-resource depositaries are very significant in varietal identification and protection. National Resource Repositories 1. National Genomic Resources Repository is established in National Bureau of Plant Genetics Resources, New Delhi, as an institutional framework for methodical and centralized

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efforts to collect, generate, conserve and distribute genomic resources for agricultural research. Article 2 of the CBD defines the term, “genetic resources” to mean “any material of actual or potential value of plant, animal, microbial or other origin containing functional units of heredity”. In the same logic, Genomic Resources are whole or parts of the genome (DNA) or its functional units (RNA) of actual or potential value. Whereas genetic resources can actually give rise to whole organisms, genomic resources can at best recover traits (directly or indirectly) of these organisms, these information and methodologies can be deposited in NGRR, New Delhi. 2. Microbial Type Culture Collection and Gene Bank (MTCC) a national facility established in 1986 is funded jointly by the Department of Biotechnology (DBT) and the Council of Scientific and Industrial Research (CSIR), Government of India. The MTCC is a modern facility housed at the Institute of Microbial Technology (IMTECH), Chandigarh. It is an affiliate member of the World Federation for Culture Collections (WFCC) and is registered with the World Data Centre for Microorganisms (WDCM, registration number 773). The main objectives of this national facility are to act as a depository, to supply authentic microbial cultures and to provide related services to the scientists working in research institutions, universities and industries. 3. National Bureau of Agriculturally Important Microorganisms (NBAIM) was established through a funded project sponsored by the Department of Agricultural Research and Education (DARE), Ministry of Agriculture (Government of India) in the IX Plan in 2001 under the auspices of the Indian Council of Agricultural Research (ICAR). The basic goal of the Bureau is to promote and coordinate systematic and scientific research in the area of agriculturally important microorganisms (AIMs) in order to improve the agricultural productivity. The main focus of this institute is to become the pioneer in the management of standard microbial reference materials, intellectual property resources and translational research as applied to the development, standardization and certification of biomaterial. NBAIM has been recognized as National Microbial Genomic Resource Repository by Biodiversity Authority of India Act 2002 and is member of National Biodiversity Authority of India. NBAIM also serves as registration authority for elite microbial germplasm. 4. National Bureau of Agriculturally Important Insects (NBAII) functions in order to exploit the agricultural insect resources from various agroclimatic zones. The functions of NBAII includes exploration, identification, characterization, conservation and utilization of biodiversity of beneficial insect resources. NBAII has been established as repository for insect derived beneficial bacteria and testing for crop use. The National Biodiversity Authority (NBA) recognized Project Directorate of Biological Control (PDBC), Bangalore as one of the Designated National Repositories (DNR) for various kinds of biological specimens, both dead and live. Registration of New Plant Varieties in India India has a huge biodiversity having 18664 species of different higher plants (India’s Fourth National Report to the Convention on Biological Diversity-2009). To recognize the contribution of breeders/researchers, Indian Council of Agricultural Research (ICAR) operates the mechanism for identification and recommendation for release of new crop varieties and the Department of Agriculture and Co-operation (DAC), Ministry of Agriculture, provides the mechanism for notification of released varieties by Central Sub-Committee on Crop Standards, Notification and Release of Varieties (CVRC) of agricultural crops. Further, enactment of Protection of Plant Varieties and Farmers’ Rights Act (2001) ensures the protection of the Intellectual Property Rights (IPRs) of plant breeders and farmers involved in developing the new varieties to be notified and

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released. These are the instruments to release of a new plant variety. But in the process of varietal improvement some superior varieties having multiple abiotic tolerance, superior nutrient quality or pathogen resistance are needed. These developments come with the hard work and concept of breeder. But they are not notified till 1996 because of poor agronomic performance. These materials belonging to the above categories are novel, unique and distinct with academic, scientific and applied value but may not have a direct commercial value. To recognize the efforts of researchers for developing the potentially valuable germplasm and to get the information and such germplasm in public domain for their efficient use by the breeders and researchers, ICAR entrusted the responsibility of registration of plant germplasm to National Bureau of Plant Genetic Resources (NBPGR), New Delhi. Legislations on IP in India 1. The Copyright Act, 1957 as amended in 1983, 1984, 1992, 1994 and 1999 along with Rules 1958 and the International Copyright Order, 1999, 2000 (Copyright Act) 2. The Patents Act, 1970 as amended in 1999, 2002, 2004 (Ordinance), 2005 and 2006 along with Rules 2005 (Patents Act) 3. The Trade Marks Act, 1999 along with Rules 1999 (Trade Marks Act) 4. The Designs Act, 2000 along with Rules 2001 (Designs Act) 5. The Geographical Indications of Goods (Registration and Protection) Act, 1999 along with Rules 2002 (GI Act) 6. The Semiconductor Integrated Circuits Layout-Design Act, 2000 along with Rules 2001 (IC Layout-Design Act) 7. The Protection of Plant Varieties and Farmers’ Rights Act, 2001 along with Rules 2003 (PPV&FR Act) 8. The Biodiversity Act, 2002. British Copyright Act, 1911 was applicable before independence. In the year 1957 the Act was introduced with some criminal sections against infringements and was continued till the copyright act 1957 came into force on 21.1.1958. Since then it has been amended in 1983, 1992, 1994 and l999. Patent system in India came in existence in 1856, and the further modified as Act of 1959. Later on the designs included under it as “the new manufacture” in the Patent and Designs Protection. The Inventions and Designs Act, 1888 was come after Patent and Designs Protection Act, 1872 and was replaced by Patents and Designs Act, 1911 since then there have been substantial changes in the political and economic conditions of the country. The present Bill contains comprehensive provisions to amend and consolidates the existing law and also contains amendments/recommendations by the Joint Committee made in 1957. On 19th September, 1970 the Patent Act, was passed by parliament and is known as Patent Act, 1970 and several amendments have been made in 1974, 1985, 1999, 2002 and 2005. Trade Marks Act, 1940 (5 of 1940) came into force on 11.3.1940, and further on replaced by Trade and Merchandise Mark Act, 1958 which was again been repealed and replaced by the Trade Mark Act, 1999. Prior to these act intellectual properties were left to the governed by Common Law. The reforms in India for IP came after independence with need of some effective legislation for every field of IP.

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The designs continued to be government by the provisions of the Indian Patents and Designs Act, 1911, until the Design Act, 2000 was came in existence. The Geographical Indications of Goods (Registration and Protection) Bill have passed in both Houses of Parliament on 30th December, 1999. The Semiconductor Integrated Circuits Layout- Design Act, 2000 has been passed by Parliament after the Uruguay Round of multilateral Trade Negotiations done at Marrakesh on 15th April, 1994. Protection of Plant Varieties and Farmer’s Rights (PPV&FR) Act, 2001 was introduced in order 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 it has been considered necessary to recognize and protect the rights of farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resource for the development of the new plant varieties. The Biological Diversity Act, 2002 enacted to provide the conservation of Biological Diversity and its sustainable use of biological resources and knowledge. The United Nations Conservation on Biological Diversity was held at Rio de Janerio in 1992, and India as signatory of said convention found necessary to give effect the convention. On 5th February, 2003 the Bill was passed by Parliament as Biodiversity Act, 2002. INTERNATIONAL AGREEMENTS FOR IP PROTECTION Berne Convention

Berne Convention is the oldest comprehensive multilateral treaty in the field of Copyright, before it the copyright was the bilateral matter among nations. Berne convention was adopted on 9th September, 1886 initially signed by only 8 countries, and till 2011 there were 164 signatory members in this treaty. The three basic principles of Berne Convention are : (a) Works originating in one of the contracting States (that is, works the author of which is a national of such a State or works which were first published in such a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals (principle of “national treatment”). (b) Such protection must not be conditional upon compliance with any formality (principle of “automatic” protection). (c) Such protection is independent of the existence of protection in the country of origin of the work (principle of the “independence” of protection). If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases. Brussels Convention

The Convention provides for the obligation of each contracting State to take adequate measures to prevent the unauthorized distribution on or from its territory of any programmecarrying signal transmitted by satellite. The distribution is unauthorized if it has not been authorized by the organization-typically a broadcasting organization which has decided what the programme

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consists of. The obligation exists in respect of organizations that are nationals of a contracting State. The provisions of this Convention are not applicable, however, where the distribution of signals is made from a direct broadcasting satellite. The Convention does not provide for the institution of a Union, any governing body or a budget. It is open to any State that is a member of the United Nations or of any of the agencies belonging to the United Nations system of organizations. Instruments of ratification, acceptance or accession must be deposited with the Secretary-General of the United Nations. Madrid Agreement (Indications of Source)

The Agreement, concluded in 1891, was revised at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958, and at Stockholm in 1967. Madrid Agreement was made to prevent the Repression of False or Deceptive Indications of Source on Goods. According to the Agreement, all goods bearing a false or deceptive indication of source, by which one of the contracting States, or a place situated therein, is directly or indirectly indicated as being the country or place of origin, must be seized on importation, or such importation must be prohibited, or other actions and sanctions must be applied in connection with such importation. Nairobi Treaty

Nairobi treaty was adopted at Nairobi on September 26, 1981 where all States which are party to the Treaty are under the obligation to protect the Olympic symbol consisting of five interlaced rings-against use for commercial purposes (in advertisements, on goods, as a mark, etc.) without the authorization of the International Olympic Committee. Paris Convention

Paris Convention was made for the Protection of Industrial Property on 20th March 1883 at Paris; on 14th December 1900 at Brussels; on 2nd June 1911, at Washington; on 6th November, 1925 at Hague; on 2nd June, 1934 at London; on 31st October, 1958 at Lisbon; on 14th July, 1967 at Stockholm and amended on September 28, 1979. The Convention applies to industrial property in the widest sense, including patents, marks, industrial designs, utility models (a kind of “small patent” provided for by the laws of some countries), trade names (designations under which an industrial or commercial activity is carried on), geographical indications (indications of source and appellations of origin) and the repression of unfair competition. Rome Convention

International convention for the protection of performers, producers of phonograms and broadcasting organizations was adopted at Rome on 26th October, 1961 for providing protections of copyright in literary and artistic works. WCT (WIPO Copyright Treaty)

The WCT is a special agreement under the Berne Convention. Any Contracting Party (even if it is not bound by the Berne Convention) must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of Literary and Artistic Works (1886). The Treaty mentions two subject matters to be protected by copyright, first (i) computer programs, whatever may be the mode or form of their expression, and second (ii) compilations of data or other material (“databases”), in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations.

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Budapest Treaty

Budapest Treaty on the international recognition of the deposit of microorganisms for the purposes of patent procedure was signed on 28th April, 1977, and amended on 26th September, 1980 for protection of microorganisms. The main feature of the Treaty is that a contracting State which allows or requires the deposit of microorganisms for the purposes of patent procedure must recognize, for such purposes, the deposit of a microorganism with any “international depositary authority”, irrespective of whether such authority is on or outside the territory of the said State. Hague Agreement

The Hague Agreement Concerning the International Deposit of Industrial Designs was enabled on 6th November, 1925 and the Hague Act was enacted on 28th November, 1960. Three Acts of the Hague Agreement are currently in force, the 1999 Act, the 1960 Act and 1934 Act. According to this agreement, international registration may be obtained only by a natural person or legal entity having a connection, through establishment, domicile and nationality or, under the 1999 Act residence, with a Contracting Party to any of the three Acts. An international deposit may be governed by the 1999 Act, 1960 Act, 1934 Act or any combination of these depending on the Contracting Party with which the applicant has the connection described above (hereafter referred to as “Contracting Party of origin”). Over 99 percent of international registrations currently obtained are governed (exclusively or in part) by either the 1999 or the 1960 Act. Lisbon Agreement

Lisbon Agreement was adopted for the Protection of Appellations of Origin and their International Registration on 31st October, 1958 at Lisbon that was amended on 14th July, 1967 at Stockholm and on 28th September, 1979. The countries to which this Agreement applies constitute a Special Union within the framework of the Union for the Protection of Industrial Property. They undertake to protect on their territories, in accordance with the terms of this Agreement, the appellations of origin of products of the other countries of the Special Union, recognized and protected as such in the country of origin and registered at the International Bureau of Intellectual Property referred to in the Convention establishing the World Intellectual Property Organization. Madrid Agreement (Marks)

Madrid agreement concerning the international registration of Marks has been enacted on 14th April, 1891 at Madrid and revised on 14th December, 1900 at Brussels; on 2nd June, 1911 at Washington; on 6th November, 1925 at The Hague; on 2nd June, 1934 at London, at Nice on June 15, 1957, and at Stockholm on July 14, 1967, and as amended on September 28, 1979. Protocol relating to Madrid Agreement concerning the International Registration of Marks adopted at Madrid on June 27, 1989, as amended on October 3, 2006 and on November 12, 2007. PCT (Patent Cooperation Treaty)

Patent Cooperation Treaty was done on 19th June, 1970 at Washington; amended on 28th September, 1979; modified on 3rd February, 1984, and on 3rd October, 2001. The Patent Cooperation Treaty makes it possible to seek patent protection for an invention simultaneously in each of a large number of countries by filing an “international” patent application. Such an application may be filed by anyone who is a national or resident of a PCT contracting State. It may generally be filed with the national patent office of the contracting State of which the

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applicant is a national or resident or, at the applicant’s option, with the International Bureau of WIPO in Geneva. Till year 2011, there were 144 total numbers of Contracting Parties in PCT. General Agreement on Tariffs and Trade (GATT)

It included the areas of medicine, cotton cloth, agriculture, industry, services, investment, technology, employment, environment, and culture etc. and along with all these the trade of India was also included in the list. The ‘Dunkel Draft Text’ was such a document that either it will have to be accepted fully or will have to be rejected fully. International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)

The International Treaty on Plant Genetic Resources for Food and Agriculture was adopted on 3 November, 2001. The treaty aims at the conservation and sustainable use of plant genetic resources for food and agriculture, the fair and equitable sharing of benefits arising out of their use, and sustainable agriculture and food security. At the heart of the Treaty is a Multilateral System (MLS) that seeks to facilitate access to a negotiated list of plant genetic resources, annexed to the treaty, as well as the fair and equitable sharing of benefits arising from their use. Genetic resources listed on the MLS are to be circulated freely. Ex-situ collections are also included under this treaty. Along with this, Article 9 of the treaty deals with the contentious issue of farmer’s rights by placing the responsibility for realizing these rights on national governments. SELECTED REFERENCES Pratibha Brahmi, Sanjeev Saxena and B. S. Dhillon 2004. The Protection of Plant Varieties and Farmers’ Rights Act of India. Curr. Sci. 86 (3) : 392-398. P.T. Della Vecchia, C.A.R. Da Silva and P. Terenciano-Sobrinho 1998. Use of molecular marker techniques in seed testing by brazilian seed companies. Sci. Agric., Piracicaba, 55 (Special Volume): 79-82. R.K. Tyagi and Anjali Kak 2012. Registration of plant genetic resources in India—A review. Indian J. Agric. Sci. 82 (8) : 651-659. B.S. Dhillon, R.K. Tyagi, S. Saxena and G.J. Randhawa 2005. Plant Genetic Resources: Horticultural Crops, 332 pp. Narosa Publishing House, New Delhi.

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