Contd. The Parental Lines case
by Mrinalini Kochupillai
(Following the background in the previous post, the key legal issues discussed by the Registrar in the Parental Lines decision are explained here.)
‘Variety:’ Section 2(za) of the PPV&FR Act defines “variety”. Unlike under the UPOV model, the PPV&FR Act permits an applicant to seek registration under one of four different categories: (i) New Variety (ii) Extant Variety, (iii) Farmers’ Variety; and (iv) Essentially Derived Variety. Only the first two categories are of relevance to understand the Registrar’s Order.
Parental lines of new hybrids, i.e. hybrids that have not been commercialized within the prescribed time frame under S.15(3)(a) of the PPV&FR Act, are registered as “new varieties.” However prior to the decision of the registrar, it was unclear whether the PPV&FR Authority ought to protect parental lines of extant hybrids i.e. hybrids that have already been commercialized as “extant” or “new” varieties.
Applications for both “new” and “extant” varieties need to fulfill the criteria of Distinctiveness ( S.15(3)(b)), Uniformity ( S.15(3)(c)) and Stability ( S.15(3)(d)), together known as the DUS test. “New” variety applications, however, must also fulfill an additional criteria – that of Novelty.
The question in the case can therefore be broken down into two sub-issues:
(1) whether a hitherto undisclosed (kept secret) parental line of an extant hybrid variety can be considered “novel” under S.15(3)(a) of the Act, and / or;
(2) whether such a parental line can fall within the definition of “extant” under section 2(j) of the PPV&FR Act.
Novel: Starting with “Novelty,” defined under S.15(3)(a) of the PPV&FR Act:
“… a new variety shall be deemed to be novel, if, at the date of filing 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… (emphasis mine).”
Section 2(r) of the PPV&FR 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, regeration into a plant;”
The applicants argue that the term “such variety” in S.15(3)(a) refers to the variety for which protection is sought and the harvested material or propagating material of this variety must also refer strictly to such variety itself. In other words, if a parental B-line (PL-B) is being registered, in order to fulfill the criteria of novelty, the applicant need only prove that PL-B itself has not been “commercialized or otherwise disposed of”. Further, in determining what constitutes the “propagating or harvested material” of PL-B, the applicants argue that only the direct progeny of PL-B (i.e. pure (progeny of) PL-B that has not been crossed with the A-line and R-line in the breeding program) must be considered.
The Registrar rejects the contentions of the applicants by broadly interpreting the relevant terms: He interprets the term “propagating material” defined under S.2(r) of the PPV&FR Act, to include A-lines, B-lines and R-lines used for the creation of hybrids.
While a strict literal interpretation may justify contrary arguments in relation to A-lines, the B- and R-lines, which are capable of regenerating into plants appear to squarely fall into this definition. Not including A-lines within this definition would however, likely produce illogical results – for example, the child of a woman who has been artificially inseminated would still be considered the woman’s child/progeny. While A-lines need to be “artificially inseminated” (so to speak) and would therefore perhaps not qualify as “seeds” (as defined under section 2(x) of the PPV&FR Act) or as “capable of regenerating into a plant,” on their own, they are arguably at least “suitable” for this purpose or are also “intended” to be used as seeds (or part of a seed?) for the ultimate creation of a hybrid.
To buttress his arguments, the Registrar goes on to interpret the term “harvested material” which has not been defined in the PPV&FR Act. Using definitions given in the Oxford dictionary and the Advanced Law Lexicon, he reaches the conclusion that A-line, B-line and R-line seeds are harvested material. This is, in my opinion, quite acceptable – by crossing A-lines and B-lines, A-lines are produced. These A-lines can and are harvested for further use. B-lines and R-lines are selfed to produce more B-lines and R-lines, which are also harvested for further use.
The Applicants further argued that since the created hybrid (i.e. the final progeny from using the A-, B- and R-lines in the breeding programs) cannot be used to harvest (read ‘re-create’) A-, B- or R-lines, the hybrid itself cannot be considered to be the harvested material of the parental lines (for the purposes of S.15(3)(a) of the Act). While the arguments of the Applicants may be justified in the light of how the section may be interpreted in relation to non-hybrid (or typical) plant varieties that reproduce true-to-type, it is quite illogical in relation to hybrids. It would be akin to saying that since I cannot (re)produce my parents, I cannot be considered the offspring of my parents!
The Registrar discards this argument by stating that the definition of “Stability” as used under the Act to determine whether a plant variety can be registered cannot be used to limit the meaning of “harvested material” under S.15(3)(a).
The central piece of the Order lies in its interpretation of the terms “otherwise disposed of” and “exploitation.” Citing several decided cases, the Registrar interprets the term “or” between the terms “sold” and “otherwise disposed of” (in S.15(3)(a)) as being a disjunctive “or” [a deeper investigation might be needed to confirm this – a task well outside the scope of this post] and finds that the term “otherwise disposed of” expands the scope of the section beyond mere sale to include the utilization of seeds (including parental lines) for the creation of other seeds. He also draws a convincing distinction between the term “otherwise disposed of to others” used in the UPOV convention with the words used in S.15(3)(a) of the PPV&FR Act wherein the words “to others” are absent. In relation to the term “exploitation”, following the Oxford dictionary meaning of the term as “making good use of a resource,” the Registrar concludes that exploitation would include not just sale but also making (good) use of the parental lines for the creation of hybrids.
Other findings denying novelty of parental lines of extant hybrids:
· Use of parental lines for the creation of hybrids cannot be considered a “trial” of an unexploited new variety under the first proviso to S.15(3)(a). Therefore, if the hybrid is commercialized for more than one year, it affects the novelty of the parental lines.
· The view of the International Seed Federation (ISF) that hybrid material does not represent harvested material of parental lines is of no consequence for Indian courts and the Plant Authority. Indian law must be interpreted in accordance with the legislative intent [which is highly unclear in most cases!]. Indian law need not be interpreted with reference to any international treaty. [This is especially true in this case since India is not a signatory to UPOV..]
· Language of S.15(3)(a) is clear and unambiguous and no restrictive meaning can be given to it in the light of international conventions and the views of the ISF.
Extant?: Moving on to whether parental lines of extant hybrids can be considered “extant” under the PPV&FR Act:
Section 2(j) defines ‘extant variety’ to mean “a variety available in India which is
(i) notified under section 5 of the Seeds Act, 1966 (54 of 1966); or
(ii) farmers’ variety; or
(iii) a variety about which there is common knowledge; or
(iv) any other variety that is in public domain.”
As discussed in the previous post, by nature and purpose, parental lines are never notified under the Seeds Act (they are never commercialized, but are only used for creating hybrids that are commercialized). They are also not farmers’ varieties (as defined under S.2(l) of the PPV&FR Act). Whether or not a parental line of an extant hybrid can be considered a “variety about which there is common knowledge” or a “variety that is in public domain” would depend on how well the company claiming ownership of the parental line has been able to retain it as secret. If the secrecy has been well maintained, it would arguably fall under neither S.2(j)(iii) nor S.2(j)(iv) above and would therefore not be an extant variety. The Registrar however dismisses the argument of the Applicants and holds quite unconvincingly that parental lines of known hybrids should be known i.e. if the hybrids are a matter of common knowledge, their parental lines are also ‘varieties about which there is common knowledge’ under the definition of “extant varieties.” This is perhaps one of the weakest links of the order, making the otherwise well reasoned order, rather shaky and unconvincing. [One cannot however blame the Plant Authority in this regard, the PPV&FR Act, its users, and interpreters would benefit greatly if its provisions were to undergo a fair bit of re-writing!]
If one does not accept this unsubstantiated view of the Registrar, we might be in an uncomfortable situation where parental lines of extant hybrids can neither be categorized as new, nor as extant! Unless the company in question has not taken adequate steps to protect the secrecy of its parental lines – in which case, they can arguably be considered being in the public domain. In this context, the trade secret aspect of the decision of the Delhi High Court in Emergent Genetics v. Shailendra Shivam may be significant.
Several other related provisions that are not discussed in the Order would likely require painfully labored interpretation and application when any dispute relating to the protection of extant varieties comes up before the courts or the Plant Variety Authority. The times ahead for the Authority, the Indian courts, and all concerned parties will be interesting to say the least!