CHAPTER III: REGISTRATION OF PLANT VARIETIES AND ESSENTIALLY DERIVED VARIETY
14. Application for registration.—
Any person specified in section 16 may make an application to the Registrar for registration of any variety—
(a) of such genera and species as specified under sub-section (2) of section 29; or
(b) which is an extant variety; or
(c) which is a farmers’ variety.
15. Registrable varieties.—
—(1) A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.
(2) Notwithstanding anything contained in sub-section (1), an extant variety shall be registered under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations.
(3) For the purposes of sub-sections (1) and (2), as the case may be, 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 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; or
(ii) outside India, in the case of trees or vines earlier than six years, or in any other case, earlier than four years,
before the date of filing such application:
Provided that a trial of a new variety which has not been sold or otherwise disposed of 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 another variety whose existence is a matter of common knowledge in any country at the time of filing of the application.
For the removal of doubts, it is hereby declared that the filing of an application for the granting of a breeder’s right to a new variety or for entering such variety in the official register of varieties in any convention country shall be deemed to render that variety a matter of common
knowledge from the date of the application in case the application leads to the granting of the breeder’s right or to the entry of such variety in such official register, as the case may be;
(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 a particular cycle of propagation, at the end of each such cycle.
(4) A new variety shall not be registered under this Act if the denomination given to such variety—
(i) is not capable of identifying such variety; or
(ii) consists solely of figures; or
(iii) is liable to mislead or to cause confusion concerning the characteristics, value identity of
such variety or the identity of breeder of such variety; or
(iv) is not different from every denomination which designates a variety of the same botanical
species or of a closely related species registered under this Act; or
(v) is likely to deceive the public or cause confusion in the public regarding the identity of
such variety; or
(vi) is likely to hurt the religious sentiments respectively of any class or section of the citizens
of India; or
(vii) is prohibited for use as a name or emblem for any of the purposes mentioned in
section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950); or
(viii) is comprised of solely or partly of geographical name:
Provided that the registrar may register a variety, the denomination of which comprises solely or
partly of a geographical name, if he considers that the use of such denomination in respect of such variety
is an honest use under the circumstances of the case.
16. Persons who may make application.—
An application for registration under section 14 shall be made by—
(a) any person claiming to be the breeder of the variety; or
(b) any successor of the breeder of the variety; or
(c) any person being the assignee of the breeder of the variety in respect of the right to make such application; or
(d) any farmer or group of farmers or community of farmers claiming to be the breeder of the variety; or
(e) any person authorized in the prescribed manner by a person specified under clauses (a) to (d) to make application on his behalf; or
(f) any university or publicly funded agricultural institution claiming to be the breeder of the variety.
(2) An application under sub-section (1) may be made by any of the persons referred to there in individually or jointly with any other person.
17. Compulsory variety denomination.—
(1) Every application shall assign a single and distinct denomination to a variety with respect to which he is seeking registration under this Act in accordance with the regulations.
(2) The Authority shall, having regard to the provisions of any international convention or treaty to which India has become a party, make regulation governing the assignment of denomination to a variety.
(3) Where the denomination assigned to the variety does not satisfy the requirements specified in the regulations, the Registrar may require the applicant to propose another denomination within such time as may be specified by such regulations.
(4) Notwithstanding anything contained in the Trade Marks Act, 1999 (47 of 1999), a denomination assigned to a variety shall not be registered as a trade mark under that Act.
18. Form of application.—
(1) Every application for registration under section 14 shall—
(a) be with respect to a variety;
(b) state the denomination assigned to such variety by the applicant;
(c) be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;
(d) be in such form as may be specified by regulations;
(e) contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution or organisation in breeding, evolving or developing the variety;
(f) be accompanied by a statement containing a brief description of the variety bringing out its characteristics of novelty, distinctiveness, uniformity and stability as required for registration;
(g) be accompanied by such fees as may be prescribed;
(h) contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired; and
(i) be accompanied by such other particulars as may be prescribed:
Provided that in case where the application is for the registration of farmers’ variety, nothing contained in clauses (b) to (i) shall apply in respect of the application and the application shall be in such form as may be prescribed.
(2) Every application referred to in sub-section (1) shall be filed in the office of the Registrar.
(3) Where such application is made by virtue of a succession or an assignment of the right to apply for registration, there shall be furnished at the time of making the application, or within such period after making the application as may be prescribed, a proof of the right to make the application
19. Test to be conducted.—
—(1) Every applicant shall, along with the application for registration made under this Act, make available to the Registrar such quantity of seed of a variety for registration of which such application is made, for the purpose of conducting tests to evaluate whether seed of such variety along with parental material conform to the standards as may be specified by regulations:
Provided that the Registrar or any person or test centre to whom such seed has been sent for conducting test shall keep such seed during his or its possession in such manner and in such condition that its viability and quality shall remain unaltered.
(2) The applicant shall deposit such fees as may be prescribed for conducting tests referred to in sub-section (1).
(3) The tests referred to in sub-section (1) shall be conducted in such manner and by such method as may be prescribed.
20. Acceptance of application or amendment thereof.—
(1) On receipt of an application under section 14, the Registrar may, after making such inquiry as he thinks fit with respect to the particulars
contained in such application, accept the application absolutely or subject to such conditions or limitations as he deems fit.
(2) Where the Registrar is satisfied that the application does not comply with the requirements of this
Act or any rules or regulations made thereunder, he may, either—
(a) require the applicant to amend the application to his satisfaction; or
(b) reject the application:
Provided that no application shall be rejected unless the applicant has been given a reasonable opportunity of presenting his case.
21. Advertisement of application.—
(1) Where an application for registration of a variety has been accepted absolutely or subject to conditions or limitations under sub-section (1) of section 20, the Registrar shall, as soon as after its acceptance, cause such application together with the conditions or limitations, if any, subject to which it has been accepted and the specifications of the variety for registration of which such application is made including its photographs or drawings, to be advertised in the prescribed manner calling objections from the persons interested in the matter.
(2) Any person may, within three months from the date of the advertisement of an application for registration on payment of the prescribed fees, give notice in writing in the prescribed manner, to the Registrar of his opposition to the registration.
(3) Opposition to the registration under sub-section (2) may be made on any of the following grounds, namely:—
(a) that the person opposing the application is entitled to the breeder’s right as against theapplicant; or
(b) that the variety is not registrable under this Act; or
(c) that the grant of certificate of registration may not be in public interest; or
(d) that the variety may have adverse effect on the environment
(4) The Registrar shall serve a copy of the notice of opposition on the applicant for registration and, within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application, and if he does not do so, he shall be deemed to have abandoned his application.
(5) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition.
(6) Any evidence upon which the opponent and the applicant may rely shall be submitted, in the manner prescribed and within the time prescribed, to the Registrar and the Registrar shall give an opportunity to them to be heard, if so desired.
(7) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted and may take into account a ground of objection whether relied upon by the opponent or not.
(8) Where a person giving notice of opposition or an applicant sending a counter-statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the cost of proceedings before him and in default of such security being duly given may treat the opposition or application, as the case may be, as abandoned.
(9) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he may think fit.
22. Registrar to consider grounds for opposition.—
The Registrar shall consider all the grounds on which the application has been opposed and after giving reasons for his decision, by order, uphold or
reject the opposition.
Registration of essentially derived variety
23. Registration of essentially derived variety.—
(1) An application for the registration of an essentially derived variety of the genera or species specified under sub-section (2) of section 29 by the
Central Government shall be made to the Registrar by or on behalf of any person referred to in section 14 and in the manner specified in section 18 as if for the word “variety”, the words “essentially derived variety” have been substituted therein and shall be accompanied by such documents and fees as may be prescribed.
(2) When the Registrar is satisfied that the requirements of sub-section (1) have been complied with to his satisfaction, he shall forward the application with his report and all the relevant document to the Authority.
(3) On receipt of an application under sub-section (2), the Authority shall get examined such essentially derived variety to determine as to whether the essentially derived variety is a variety derived from the initial variety by conducting such tests and following such procedure as may be prescribed.
(4) When the Authority is satisfied on the report of the test referred to in sub-section (3) that the essentially derived variety has been derived from the initial variety, it may direct the Registrar to register such essentially derived variety and the Registrar shall comply with the direction of the Authority.
(5) Where the Authority is not satisfied on the report of the test referred to in sub-section (3) that the essentially derived variety has been derived from the initial variety it shall refuse the application.
(6) The rights of the breeder of a variety contained in section 28 shall apply to the breeder of essentially derived variety:
Provided that the authorisation by the breeder of initial variety to the breeder of essentially derived variety under sub-section (2) of section 28 may be subject to such terms and conditions as both the parties may mutually agree upon.
(7) An essentially derived variety shall not be registered under this section unless it satisfies the requirements of section 15 as if for the word “variety”, the words “essentially derived variety” have been substituted therein.
(8) When an essentially derived variety has been registered by the Registrar in compliance with the direction of the Authority under sub-section (4), the Registrar shall issue to the applicant a certificate of registration in the prescribed form and sealed with seal of the Registry and send a copy thereof to the Authority and to such other authority, as may be prescribed, for information.