The perm causes massive court clog and industry distrust

Thikkavarapu 18 [Prashant Reddy, B.A.LLB (Hons.) degree from the National Law School of India University in 2008 and a LLM degree from Stanford Law School in 2013, worked litigation teams at two Delhi-based law firms specializing in intellectual property law, co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas, “The overlap between the Patents Acts and theplant variety protection & Farmer's Rights Actin India: A seed of doubt,” DOI: 10.1111/jwip.12103, The Journal of Worldwide Intellectual Property, pg. WileyOnline, ALB]

The debate over intellectual property protection for new plant varieties in India goes back to 1967 when the Seed Review Team, constituted by the government of India, recommended the enactment of a law to incentivize the creation of new plant varieties (Kochar, 2010). However, no action was taken in this regard till the signing of the Agreement on Trade Related Intellectual Property Rights (TRIPS). This Agreement, which was a part of the WTO Agreement, gave its signatories three options when it came to protecting new plant varieties: either protect new plant varieties under national patent law or enact a sui generis legislation to protect only plant varieties or a combination of these two systems.

Like many other countries, India chose the option of enacting a sui generis legislation called the Plant Variety Protection & Farmer's Rights Act, 2001 (PVPFRA) to protect new plant varieties. This law appears to draw some inspiration from the International Union for the Protection of New Varieties of Plants (UPOV) although there remain significant differences between Indian law and UPOV. It should be mentioned that the Indian law has some rather unique provisions on “farmer's rights”, which mandate benefit-sharing in certain circumstances (Jayaraman, 2001). Anew variety can be registered under the PVPFRA as long as it conforms to the criteria of novelty, distinctiveness, uniformity and stability. 2 The country also amended its patent law in 2002 to specifically exclude the possibility of patent protection for plants and plant varieties. 3

The policy objective behind excluding plants from patent law, while enacting a sui generis law for protection of new plant varieties was to prevent overlapping of the two legal regimes. However, as has happened in jurisdictions like the EU, the advent of biotechnology has complicated efforts at maintaining a bright line between the PVPFRA and the Patents Act in India. These overlaps between both legislation are now the subject of a legal dispute in India between Monsanto and its Indian licensees and the subject of considerable confusion amongst the seed industry (Bhardwaj,2017).

Indian seed companies operating under the National Seed Association of India (NSAI) have publicly questioned the validity of the patents granted to Monsanto and also raised issues that can be traced to the overlap between the Patents Act and the PVPFRA (Reddy, 2016a, August 31). Most of the issues being raised in this litigation could have been avoided if Indian policy makers, who drafted the PVPFRA, had studied similar litigation and policy changes that took place in Europe in the 90s (Llewelyn, 1997; Nott, 1999)