Welcome to D. P. Ahuja & Co.- Indian Intellectual Property Law Firm

Law : Patents Act 1970, No. 39 of 1970, as amended by orders effective 20 th April 1972, 26 th March 1999, 20th May 2003 and 1 st January 2005.

Rules : Patents Rules 1972, as amended by Rules effective 2 nd May 2003 and Rules effective 1 st January 2005.

There are separate fees for additional pages of the specification in excess of thirty, and for claims in excess of ten.

There is separate fee for filing "request for examination" of the patent application

After filing a "request for examination", examination of the patent application is carried out in the order of such requests, and the First Examination Report is generally issued within 6 months. From the date of issuance of the first examination report, the applicant has 12 months to put the application in order for grant of a patent. When an application is found in order, it is advertised for opposition. The Indian Act provides for both pre- and post-grant opposition.

A patent is normally granted 6 months after advertisement, if there is no opposition.

The Head Office of the Patent Office is and has traditionally been in Calcutta for the past 150 years. It is one of the finest and the best of government agencies in India and particularly popular with foreign applicants filing for patents in the field of telecommunications, electronics, pharmaceuticals, agrochemicals and biotechnology due to its highly qualified and user-friendly technical crew and faster examination.

The Calcutta High Court has earlier restrained attempts by the government to either shift the Head Office from Calcutta or to set up a National Patent Office, in response to a Writ Petition filed in national interest. It is contrary to law to move the Patent Office or to set up a new Patent Office without the consent of both Houses of Parliament.

(i) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

(ii) an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;

(iii) the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature;

(iv) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or 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 or employs at least one new reactant.

Explanation - For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy.

(v) a substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

(vi) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(viii) any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;

(ix) plants or animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

(x) a mathematical or business method or a computer programme per se or algorithms;

(xi) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(xii) a mere scheme or rule or method of performing mental act or a method of playing game;

Over the past years the following have been held to be not a "patentable invention" even though no specific provision of the Patents Act bars patentability of such inventions.

• "Computer programmes" per se are excluded from patentability. The inventions relating to the application of the computer program or software is held patentable under the Indian Act when claimed in combination of hardware (including peripherals) and software components of a computer which provides an "improved technical effect" over the prior art. In that context, the Indian statute has been amended more or less in line with the European Patent Office practice in this field.

• A process of printing or duplicating documents is held to be not patentable on the ground that the starting material remains unaltered by the process and the end product also remains the same as the starting material. This is poor interpretation of the statute by the Patent Office.

The Patent Office allows "biotechnology" process even if it employs a living organism in the steps of its manufacture or the resultant product is a living organism. There is no statutory bar against the patentability of "biotechnological" methods, in as much as some "product" is produced thereby.

Applicants may object to the Patent Office's policy through arguments and written submissions put forward during the prosecution stage, and, if the Patent Office declines to be convinced by such arguments, a formal 'hearing' may be requested so that the Controller becomes bound to provide cogent reasons in the event of refusal of allowance of the claims, and, consequently, the applicants will be at liberty to prefer appeal before the High Court against any prejudiced or unsubstantiated opinions from the Patent Office.

Patenting in biotechnology has emerged as an issue only in last 2 to 3 decades. The patenting of biotechnological inventions is based on historical experience of patenting inventions by agricultural, fermentation, pharmaceutical and medical industries. Debates over whether or not patent should be issued for higher life forms has more facets than only the otherwise appropriateness. The debates focus instead on ethical and economic considerations.

Signatories of GATT and TRIPS agreement are obliged under the agreement to adopt patent system for microorganisms and to establish either patent or sui generis form of IP protection for plants. However, the patenting of higher animal life forms was left unreserved with signatories having option to use or not use patents to protect such Intellectual Property Rights.

According to Section 3(b) of Indian Patents Act, an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which cause serious prejudice to human, animal or plant life or health or to the environment, - is not patentable. In the field of biotechnology, four types of invention are considered to be immoral, viz.,

• Use of human embryo for industrial or commercial purposes should not be patentable.

• Process for modifying the genetic identity of animals that are likely to cause them suffering without any substantial medical benefits to man or animal and also animals resulting from such processes should not be patentable.

1. Naturally occurring living entity is not patentable, but living entity of artificial origin, such as microorganisms/vaccine, is patentable. Likewise, transgenic/engineered plant should be patentable, but, according to Indian practice, clones and new variety of plants are not patentable.

2. Process/method of genetically modified organism constitutes patentable subject matter. Process/treatments of plants to render them free of disease or to increase their economic value is allowed for patent.

3. Biological material such as DNA, plasmids and process of manufacturing thereof are patentable provided they are produced by substantive human intervention.

An isolated or purified DNA that has some sequence as that of a naturally occurring gene is eligible for patent protection because:

a) an excised gene is eligible for a patent as a composition of matter or as an article of manufacture because DNA molecule does not occur in that isolated form in nature.

b) Synthetic DNA preparation are eligible for patents because their purified state is different from naturally occurring compound.

While descriptive sequence information alone is not patentable subject matter, a new and useful and purified DNA described by sequence is eligible for patenting subject to satisfying the other criteria of patentability. Therefore, gene sequences, DNA sequences without their functions having been disclosed are not patentable owing to lack of 'inventive step' and 'industrial applicability'.

4. A process relating to microorganism, or production of chemical substances using such microorganism, are patentable.

5. Biological process for production of plants and animals such as method of cross-breeding are not patentable.

The Government of India has amended to Indian Patents Act, and, consequently, the provisions regarding patentability of biotechnology related inventions are in conformity with the requirements of TRIPS.

Black Box applications filed as a measure of pipeline protection since the promulgation of the patents Amendment Ordinance in 1994 [which has since lapsed], and legitimized by the enactment of the Patents First Amendment Act 1999 include biotechnological products such as non-living transformed DNA which can be used in pharmaceuticals and agrochemicals.

India's contractual obligations in the global scenario of commerce, trade and industry-

India ratified the Agreement establishing the World Trade Organization (WTO), whereby it became one of the member countries amongst other developed, developing and least-developed countries. Consequently, India signed the "General Agreement on Tariff and Trade" Treaty 1994 (GATT), and, thus, it being one of the "Contracting Parties", is bound by the provisions of the Agreement on "Trade-Related Aspects of Intellectual Property Rights" (TRIPS), with effect from 1 st January 1995. The TRIPS Agreement, inter alia, prescribes the minimum standards to be adopted by the member countries in respect of 8 areas of intellectual property, those being Copyright and Related Rights, Trademarks, Geographical Indications, Industrial Designs, Patents, Layout-Designs (Topographies) of Integrated Circuits, Protection of Undisclosed Information, and Control of Anti-Competitive Practices in Contractual Licenses. Though India had a transition period of 5 years (with effect from 1st January 1995 to apply the provisions of the Agreement and an additional period of 5 years for extending product patent protection to areas of technology not protected so far, certain obligations were required to be fulfilled with effect from 1st January 1995.

Notwithstanding the transition periods as mentioned above, member countries which do not provide for product patents in the areas of pharmaceuticals and agricultural chemicals, were required to provide with effect from the coming into force of the WTO Agreement, i.e., from 1st January 1995, a means to receive product patent applications for pharmaceuticals and agricultural chemicals, and on fulfillment of certain conditions, grant exclusive marketing rights for a period of five years, or until the patent is granted or rejected, whichever is shorter. As the prevailing Patents Act 1970 does not provide for grant of product patents, inter alia, in the fields of agricultural chemicals and pharmaceuticals and also for grant of Exclusive Marketing Rights, the aforementioned provisions were applicable to India. These obligations were initially fulfilled by issuing an Ordinance on 31st December 1994, viz., the Patents (Amendment) Ordinance 1994. Subsequently, the Patents (Amendment) Bill 1995 was introduced in the Lok Sabha in March, 1995. The Bill was passed by the Lok Sabha and then introduced in the Rajya Sabha where it was referred to a Select Committee of the House. As the Select Committee did not submit its report before the dissolution of the 10 th Lok Sabha, the Bill lapsed. While taking steps to amend the Patents Act 1970 to fulfill India's obligations under the Agreement, measures were incorporated in the amendments to ensure that Government's ability to intervene in the public interest was preserved.

The Act was amended in March 1999 to meet India's obligations under the TRIPS Agreement. Since 1972, there has been considerable technological innovations and development of knowledge, and the concept of intellectual property as a resource for knowledge-based industries has become well recognized the world over. Development of technological capability in India, coupled with the need for integrating the intellectual property system with international practices and intellectual property regimes, requires that the Act be modified into a modern, harmonized and user-friendly legislation to adequately protect national and public interests while simultaneously meeting India's international obligations under the TRIPS Agreement, which were to be fulfilled by 31st December 2001.

To meet the obligations of the TRIPS Agreement, the following changes in Law have been made by the Indian Legislature:

The Protection of Plant Varieties and Farmers Rights Act 2000 has been passed by both Houses of Parliament. This statute is a sui generis legislation aimed at meeting India's obligations under TRIPS to provide for an effective system for the protection of the rights of plant breeders and farmers and to encourage the development of new plant varieties.

When an application for a patent has been published in the 'Official Journal' but a patent has not been granted, any person may represent by way of opposition to the Controller against the grant of patent on eleven grounds. A written statement is also filed by the opponent setting out the nature of the opponent's interest, the facts upon which he bases his case and relief which he seeks, and evidence. At any time after the grant of patent but before 12 months from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller on any of said eleven grounds.

If the patentee does not desire to contest, the patent is deemed to have been revoked. If the patentee desires to contest the opposition he leaves a reply statement setting out the grounds upon which the opposition is contested and evidence, if any, in support of the case within two months from the date of receipt of the copy of the written statement and opponent's evidence. The Controller constitutes an Opposition Board which conducts an examination of the notice of opposition and submits a report with reasons on each ground taken in the notice with its recommendation within three months. After giving the patentee and the opponent an opportunity of being heard, the Controller orders either to maintain or to amend or to revoke the patent.

If there is no opposition, the patent grant notice is issued by the Patent Office.

(b) the claimed invention has been published before the priority date of the claim-

(c) the claimed invention as claimed in a claim of a specification published on or after the priority date of the applicant's claim and filed in pursuance of an Indian patent application, being a claim of which the priority date is earlier than that of the applicant's claim;

(d) the invention so far as claimed in any claim of the specification was publicly known or used in India before the priority date of that claim;

(e) the claimed invention is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim;

(f) the subject of any claim of the specification is not an invention within the meaning of the Act, or is not patentable under the Act;

(g) the specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;

(h) the applicant failed to disclose to the Controller the information required by Section 8 or furnished false information;

(i) in case of convention application, the application was not made within 12 months from the date of first application for protection for the invention made in the convention country by the applicant;

(j) the specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention;

(k) the claimed invention is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.

Patent litigation in India is still in its infancy and cases that have come to Court have been few and far between.

A patent infringement suit may be filed in India only after grant of a patent but damages may be claimed from the date of notification of grant. Proceedings may be instituted by the patentee in nay court not inferior to a District Court having jurisdiction, against nay person who, during the continuance of a patent, makes, sells, uses or imports the invention protected by it without a licence from the patentee, or who counterfeits or imitates the invention. Also, a person aiding and abetting an infringement activity is liable to be sued. A plaintiff may also plead infringement on the basis of evidence, that an alleged mechanical/chemical equivalent of the patented invention discharges or gives the same function, or the same result, as available from the patented process/article, and that such equivalent does not have any ingenuity of its own.

Import of any patented product (including those relating to pharmaceuticals, chemicals, agrochemicals, food and microorganisms) and such product made by a patented process in India, without the consent of the patent owner, will now be construed as an infringement along with manufacture, sale and use of the product in India. Import, sa le or use of a patented product for obtaining approval from a regulatory authority is not, however, considered to be infringement.

Reliefs

Defences:

[i] Invalidity of patent

[ii] Counterclaim for revocation on

(a) Any or all of the grounds of opposition; and

(b) Additional grounds of no usefulness, non workability of the invention and also that the patent was obtained on false suggestion or representation.

Injunctions

Courts in India decide injunction matters relating to patent infringement suits on principles similar to that for deciding interim injunction applications in all civil matters, namely,-

[a] The Court must be satisfied on prima facie case of the plaintiff; and that

[b] Balance of convenience is in favour of granting an injunction.

However, in patent matters, since technical aspects are involved that require close examination, normally injunctions are not granted ex parte, but only after giving an opportunity to the defendant to file his reply.

An interim injunction application is decided on affidavits and not on oral evidence.

The issue of permanent injunction is determined upon trial on evidence, and it may take any time between 3 to 7 years for actual disposal of the suit. Permanent injunction, if granted, is limited to the duration of the patent.

Injunction is granted not only where actual infringement is proved, but also where a threat to infringe has been established. Where a patent has expired before hearing the suit, no question of injunction arises, but the plaintiff can claim damages or an account of profit arising from acts committed before the expiry of the patent.

Damages

In assessing damages, the sole question is what is the loss sustained by the patentee by reason of the unlawful sale of the defendant's goods, and that the loss must be natural and a direct consequence of the defendant's case.

Appeals

Appeal can be preferred before the Division Bench of the High Court comprising of two Judges from the decision of the Trial Court, and, thereafter, further appeal can be preferred before the Apex Court, i.e., the Supreme Court of India on admission of application for Special Leave for such appeal.

9. Patents Act 1970 and Patents Rules 1972 amended to provide for product per se patent regime in the field of novel compositions, drugs, chemicals, agrochemicals, food and new micro-organisms

The earlier statutory prohibition under Section 5 of the Act against product per se patents in the field of chemicals, novel drugs and agrochemicals has been withdrawn. The amendment of the Act to this effect is consequent upon the obligatory terms of the TRIPS agreement.

Special provision for compulsory license on notification by Central Government and Compulsory License for export of Pharmaceutical products under exceptional circumstances

If the Central Government is satisfied, in respect of any patent in force in circumstances of national emergency or in circumstances of extreme urgency or in case of public non-commercial use, that it is necessary that compulsory licenses should be granted at any time after the grant of a patent thereof to work the invention, it may make a declaration to the effect, by notification in the Official Gazette, and thereupon the following provisions shall have effect, that is to say,-

(i) the Controller shall, on application made at any time after the notification by any person interested, grant to the applicant a license under the patent no such terms and conditions as he thinks fit;

(ii) in settling the terms and conditions of a license granted under this section, the Controller shall endeavor to secure that the articles manufactured under the patent shall be available to the public at the lowest prices consistent with the patentees deriving a reasonable advantage from their patent rights.

Compulsory license can be made available solely for manufacture and export of patented pharmaceutical product to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public health problem, provided compulsory license has been granted by such country under terms and conditions as may be specified and published by the Controller.

The Indian Patents Rules have been amended with effect from 1 st January 2005. Patent fees have been revised upward substantially. It may be recalled that Patent fees in India had been among the lowest in the world.

Number of forms reduced from 28 to 27 with a single application form being prescribed for all types of applications. There is no Search Fee, Grant Fee or Sealing Fee.

The prescribed time for putting a patent application in order for grant (the onus remaining on the applicant) has now been curtailed to 6 months from the date of issuance of the First Examination Report (FER) plus an extension of time of 3 months. The earlier period was 12 months.

Request for Examination has to be filed within 36 months from the first priority date, instead of 48 months from the filing date as applicable for patent applications filed prior to 1 st January 2005.

No period has been specified for the Examiner to take up examination of the application after the Request therefor has been filed. A new Rule has been added which provides that the Examiner will examine the application within 3 months from the date of referral by the Controller of Patents to the Examiner. This peculiar provision is purposeless and meaningless to the applicant.

All patent applications filed are published after expiry of 18 months from the priority date.

Time limit for recordal of "Deeds of Assignment" in respect of granted patents has been withdrawn.

Certified copies of Priority documents will not be required. Instead, notary verified copies will suffice.

A further amendment is imminent (expected to come into force from April 2006).

Patents (Amendment) Act 2005

The Indian Patent Act has been amended on 31 st December 2004 and a new Patent Law has come into force on 1 st January 2005. The Highlights of the new Law are as follows:

Highlights with Notes and Comments

. Indian Patent Act amended with effect from 1 st January 2005

. Pharmaceutical products are now patentable

. Microorganisms, Chemical, Agro-chemical and Food products are also patentable

. Software in combination with hardware is now patentable

. Official Fees increase astronomically

Recent Changes to the LAW

. Product patents in respect of novel compositions, drugs, chemicals, agrochemicals, food and new micro-organisms now allowed.

. Mathematical methods, business methods and algorithms per se remain not patentable. However, software in combination with hardware is patentable.

. Patent applications for all inventions made by anybody resident in India (by Indians or otherwise) have to be now filed in India first before filing elsewhere in the world. Thus patent applications based on collaborative research and research work being done in India have to be filed in India first before filing elsewhere in the world, including the PCT.

. Provisions related to Exclusive Marketing Rights (EMR) have been abolished. All EMR applications already filed shall be treated as applications for Request for Examination. EMR already granted will continue to remain valid till Examination and Grant/Refusal of the relevant patent.

. A provision for ex parte pre-Grant Opposition has been included to allow any third party to agitate against Grant of a patent on all grounds that are available for post-grant opposition.

. Opposition can now be filed after grant within one year of grant on all available grounds as before.

. A Patentee will now be able to claim damages from the date of Publication of the patent application, should infringement be established after Grant. It will also be possible to enforce a Granted Patent even though it may be under opposition.

. Import of any patented product (including those relating to pharmaceuticals, chemicals, agrochemicals, food and microorganisms) and such product made by a patented process in India, without the consent of the patent owner, will now be construed as an infringement along with manufacture, sale and use of the product in India.

. Import, sa le or use of a patented product for obtaining approval from a regulatory authority will not be considered infringement.

. The novelty requirement has been made absolute, both in respect of prior publication and prior use of the invention, anywhere in the world.

. Pre-grant Opposition which can be filed by any person after publication of a patent application and before grant of the patent, has been changed from an ex-parte proceeding to an inter-partes proceeding. Further, all grounds of pre-grant Opposition under the Act are available and the opponent is made a party to any pre-grant opposition proceeding with an opportunity of being heard.

. Post-grant Opposition can now be filed by any interested person, within one year of grant of the patent. All grounds as applicable for pre-grant opposition are available.

. A Patentee will now be able to claim damages from the date of Publication of the patent application, should infringement be established after Grant, except in case of patents granted for "Black Box" applications, as mentioned above. It will also be possible to enforce a Granted Patent even though it may be under opposition.

. Import of any patented product (including those relating to pharmaceuticals, chemicals, agrochemicals, food and microorganisms) and such product made by a patented process into India, without the consent of the patent owner, will now be construed as an infringement along with manufacture, sale and use of the product in India.

. Import, Sale or use of a patent product for obtaining approval from a regulatory authority, in India or abroad, will not be considered infringement.

. Compulsory License Provisions: To facilitate manufacture and export of a patented drug to Least Developed Countries to address their public health problem, it would be sufficient for the concerned Least Developed Countries to authorize or notify such import from India or to issue a compulsory license for the purpose.

. The period for negotiation with the patent holder for grant of license for the patent on reasonable terms, ( before the Controller may consider grant of a compulsory license ) will not exceed 6 months. Further, the terms and condition for grant of compulsory license has been relaxed in the favour of the licensee to allow export of the patented product, if need be.

. The provision for parallel importation of a patented product has been further relaxed by permitting import of a patented product from a person duly authorized under the law ( earlier authorized by the patentee ) to produce, sell or distribute the product, as an exception to infringement.

. "Request for examination" of a patent application may be filed by the applicant or any interested person. It is not clear how a third party (other than the applicant) will be interested in filing request for examination where only the applicant or his authorized agent/attorney can take action during prosecution of a patent application.

. No deadline has been fixed for issuance of first examination report after filing a request for examination or for subsequent office action on filing of a response.

. The applicants and the prosecuting attorneys are under tremendous pressure especially taking into view that habit of the Patent Office examiners to issue last minute objections after filing a response to first and subsequent office actions.

. Disclosure requirement prescribed for new biological materials with particulars of the deposit, the depository institution, indication of its source and geographical origin to be notified. Non or wrong disclosure of source or geographical origin of a biological material used in the invention and anticipation of the invention through prior knowledge oral or otherwise within any local or indigenous community have been made grounds for opposition /revocation proceedings.

. The test of novelty under the new ground of anticipation with regard to the knowledge, oral or otherwise available within any local or indigenous community in any country may have a nuisance value in delaying the grant of patent particularly for inventions in the pharmaceutical field which uses natural products in the process of manufacture though the applicant may ultimately succeed for lack of proper evidence in support of the opposition.

. The Central Government shall periodically review the secrecy direction issued under Section 35 to consider whether the application continues to be relevant for defence purposes. In case of foreign applicant only if the invention is published elsewhere the secrecy direction will be withdrawn.

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 the farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of the new plant varieties. Moreover, to accelerate agricultural development, it is necessary to protect plant breeders' rights to stimulate investment for research and development for the development of new plant varieties.

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. India having ratified the TRIPS agreement has to make provision for giving effect to Agreement. To give effect to aforesaid objectives the Protection of Plant Varieties and Farmers' Rights Bill was introduced in the Parliament.

The Protection of Plant Varieties and Farmers' Rights Bill having been passed by both the Houses of Parliament, received the assent of the President of India on 30 th October, 2001. It came on the Statute Book as THE PROTECTION OF PLANT VARIETIES AND FARMERS' RIGHTS ACT, 2001 (53 of 2001).

The Protection of Plant Varieties & Farmers Rights Act 2001 has not been officially notified as implemented, as yet. The Protection of Plant Varieties & Farmers Rights Rules 2003 have been formulated as shall come into force on the date on which the Act shall come into force. We are not aware whether the Protection of Plant Varieties and Farmers' Rights Authority, as provided under the Rules, has been constituted as yet.

Coverage of varieties under the Plant Varieties and Farmers' Rights Act, 2001 (the Act):

However, it may be noted that, gene or gene sequences involving terminator technology or other technologies injurious to the life or health of human beings, animals or plants are barred from registration.

The Act covers seed and propagating material and confers an exclusive right on the breeder or his successor, his agent or licensee, to produce, sell, market, distribute, import or export the variety. However, a farmer is entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under the Act, other than sale of branded seed of a variety so protected.

The Act defines "propagating material" as "any plant or its component or part thereof including an intended seed or seed which is capable of or suitable for regeneration into a plant". It may be inferred from this definition that grafts will be included.

Under the Act, a new variety shall be deemed to be novel, if at the date of filing of the application for registration for protection, the propagating or harvested material of such 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-

We are not aware whether any activity with regard to filing for plant variety protection has taken place under this Act, as there appears to be no confirmed information about either the implementing Rules, Forms and Fees or the location of the Registry, as yet.

Further, we have no information, as yet, with regard to India ratifying The International Convention for the Protection of New Varieties of Plants (UPOV Convention).

However, it appears that the Government of India took a decision to join the UPOV Convention in May 2002, but this decision could not be implemented due to a Public Interest litigation.

Certificate of Registration issued by the Registrar, subject to the provisions of the Act, confers exclusive right on the breeder or his successor, his agent or licensee, to produce, sell, market, distribute, import or export the variety.

Term for new plant varieties is 15 years for annual crops and 18 years for trees and vines. Term for extant varieties is 15 years from the date of registration/date of notification in case of varieties notified under the Seeds Act. One time renewal at the end of 6 years in case of annual crops and 9 years in case of trees and vines, on payment of prescribed fee.

Plant Varieties can be excluded from registration in case where prevention of commercial exploitation of such varieties is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.

Registration of plant varieties will not be allowed if the variety in question involves any technology such as 'Genetic Use Restriction Technology' and 'Terminator Technology', which is injurious to the life or health of human beings, animals or plants.

Use of any variety registered under this Act will be allowed for conducting experiment or research and using it as an initial source for creating other varieties.

A farmer who has bred or developed a new variety to be entitled for protection as a breeder of a variety.

Farmers' variety as part of the extant variety will be entitled for registration/ protection.

A farmer who is engaged in conservation of genetic resources of land races, wild-relatives etc., will be entitled for recognition and reward from the National Gene Fund set up under this Act.

Farmers will be entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including seed or a variety, protected under this Act, with the exception that he will not be entitled to sell branded seed of a protected variety.

Rights of communities in the evolution of any variety for the purpose of staking a claim will be accepted.

Protection extended to farmers for innocent infringement of provisions of this Act.

Compensation to be given to farmers if the registered variety does not meet the promised level of performance under given conditions.

National Gene Fund to be utilized for making payment for benefit sharing, compensation to communities etc. and supporting the activities relating to conservation and sustainable use of genetic resources.

PVP Authority will have power to make order for compulsory license in certain circumstances when sufficient quantity of seeds of a protected variety is not available at a reasonable price.

Plant Varieties Protection Appellate Tribunal to be constituted to examine appeals from PVP Authority and Registrar.