Plant Varieties (Proprietary Rights) Act, 1980

Plant breeders' rights.

4.—(1) Proprietary rights to be known, and which in this Act are referred to, as “plant breeders' rights” may, on an application being made to him in that behalf and subject to the provisions of this Act, be granted by the Controller in respect of any variety of a botanical genus or species, or any variety within such genus or species, being a variety which has a particular manner of reproduction or multiplication or a certain end use, and being a genus or species standing for the time being specified in regulations made for the purposes of this section by the Minister.

(2) An application under this section shall be accompanied by the prescribed fee.

(3) In case the Controller allows an application under this section, he shall as soon as may be—

(a) issue under his seal a certificate in the prescribed form in which shall be specified the name of the plant variety to which the application relates, together with its genus and species,

(b) cause to be published in the Journal notice of the granting of the certificate,

(c) enter in the register the name of the plant variety as regards which the application was allowed, together with its genus and species.

(4) Every document purporting to be a certificate issued by the Controller under this section and to be sealed with the seal of the Controller shall in any legal proceedings be deemed to be such certificate and be admissible as evidence of the matters stated therein, until the contrary is shown.

(5) Where plant breeders' rights are granted under this Act, the grant shall, subject to subsection (7) of this section, operate to confer on the holder concerned the exclusive right—

(a) to produce, for the purposes of its being commercially marketed, reproductive material of the plant variety to which the grant relates,

(b) to sell or offer such material for sale or to export or import it,

(c) in case the plant variety is an ornamental plant variety, to propagate the variety in the course of commercially producing ornamental plants or cut flowers,

(d) to authorise any other person to do all or any of the aforesaid things,

and, subject to the provisions of this Act, infringements of plant breeders' rights shall be actionable at the suit of the holder of the rights and in any proceedings for such infringement all such relief, by way of damages, injunction, account or otherwise, as is available in any corresponding proceedings in respect of other proprietary rights shall be available.

(6) Subject to subsection (7) of this section, a holder may, in granting an authorisation, impose any conditions (including limitations or restrictions) which may be imposed by the holder of any other kind of proprietary right, and plant breeders' rights shall be assignable in like manner as are other kinds of proprietary rights.

(7) The permission of a holder shall not be required for the use of the relevant plant variety either as an initial source of variation for the creation of new plant varieties or for the sole purpose of producing a crop for human or animal consumption.

(8) (a) Where on an application being made in that behalf, being either an application to the Controller under this section or an application by or on behalf of a holder, the applicant satisfies the Controller that the holder will not receive equitable financial rewards as a result of the grant being applied for, or has not received such rewards because the grant of such rights does not or will not enable him to control the production or propagation in the State of the relevant plant variety for its fruit or for any other purpose, the Controller may, if he decides to allow the application, direct that the relevant grant shall, in addition to operating in the manner described in subsection (5) of this section, operate to confer on the relevant holder the exclusive right to produce, sell or import such part or parts as may be specified in the direction of any plant of such variety.

(b) Where the Controller gives a direction under this subsection—

(i) there shall be entered in the relevant entry in the register a statement that such a direction has been given as regards the plant variety to which the direction relates and specifying the part or parts of plants specified in the direction,

(ii) subsection (5) (a) of this section shall, in so far as it relates to the relevant holder's rights, be construed and have effect as if after “to which the grant relates” there were inserted “or any part or parts of a plant of such variety as is or are specified in the relevant direction given by the Controller under subsection (8) of this section”.

(9) Where the Controller is satisfied that the reproductive material of a plant variety is or will be used to produce for sale a different plant variety and that the nature of such different variety is such that repeated production of its reproductive material is not possible without the use in such production of reproductive material of the plant variety to which an application under this section has been or is to be allowed, the Controller shall, on an application being made to him in that behalf, direct that the relevant grant shall, in addition to operating in the manner described in subsection (5) of this section, operate to confer on the relevant holder the exclusive right to use such reproductive material in such production.

(10) The maximum period for which plant breeders' rights are to be exercisable pursuant to a grant under this section shall be twenty-five years:

Provided that, as respects fruit trees, forest trees, ornamental trees and grape vines (including in each case their rootstocks), the said period shall be not less than eighteen years and, as respects other genera and species, the said period shall be not less than fifteen years.

(11) A statement in regulations made for the purposes of this section that a species of plant or that each of the plants of a specified group of plants is a fruit tree, a forest tree, ornamental tree or grape vine shall be conclusive.

(12) (a) The period specified in a grant under this section as being that in which the plant breeders' rights thereby granted are to be exercisable shall be not less than—

(i) in case the grant is as respects fruit trees, forest trees, ornamental trees or grape vines (including in each case their rootstocks), eighteen years,

(ii) in case the grant is as respects other plants of other genera and species, fifteen years.

(b) Subject to section 11 of this Act, the period for which plant breeders' rights are exercisable shall be the period specified in the relevant grant under this section (which period shall not exceed the relevant maximum period prescribed by regulations made under this section), beginning on the date on which the grant of the plant breeders' rights by the Controller takes effect.

(13) Where plants of the variety to which an application for plant breeders' rights relates or material forming part of or derived from such plants, being plants or material of a variety to which the proviso to Article 2 of the First Schedule to this Act relates, have been sold in the State or elsewhere prior to the date of the application the following provisions shall have effect:

(a) the Controller shall, if he decides to allow the application, take the fact of such sale into account when fixing the period during which such rights are to be exercisable, and

(b) subsection (12) (a) of this section shall have effect in relation to the application as if the appropriate minimum period specified therin were reduced by—

(i) in case rights under the law of a convention country corresponding or analogous to plant breeders' rights have, prior to the date of the application, been granted as regards the variety, a period equal to that beginning on the date of such grant and ending on the date of the application, or

(ii) in case the variety is one described in paragraph (d) of the said Article 2, the period by reference to which subparagraph (ii) of the said paragraph (d) has been complied with.

(14) The revocation or amendment of regulations made for the purposes of this section shall not affect the operation of any grant of plant breeders' rights which was in force immediately before the commencement of the revocation or amendment.