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PROTECTION OF TRADITIONAL KNOWLEDGE
ASSOCIATED WITH PLANT GENETIC RESOURCES:
A COMPARATIVE STUDY OF THAI LAW AND
INDIAN LAW
BY
MISS SIRAKARN MEEKLAM
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE DEGREE OF MASTER OF
LAWS IN BUSINESS LAWS (ENGLISH PROGRAM)
FACULTY OF LAW
THAMMASAT UNIVERSITY
ACADEMIC YEAR 2014
COPYRIGHT OF THAMMASAT UNIVERSITY
PROTECTION OF TRADITIONAL KNOWLEDGE
ASSOCIATED WITH PLANT GENETIC RESOURCES:
A COMPARATIVE STUDY OF THAI LAW AND
INDIAN LAW
BY
MISS SIRAKARN MEEKLAM
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE DEGREE OF MASTER OF
LAWS IN BUSINESS LAWS (ENGLISH PROGRAM)
FACULTY OF LAW
THAMMASAT UNIVERSITY
ACADEMIC YEAR 2014
COPYRIGHT OF THAMMASAT UNIVERSITY
______________________________________
(Munin Pongsapan, Ph.D.)
______________________________________
(Professor Amnat Wongbandit, D.Jur.)
______________________________________
(Assistant Professor Nartnirun Junngam, Ph.D.)
______________________________________
(Adjunct Professor Satyapon Sachdecha, LL.D.)
______________________________________
(Associate Professor Narong Jaiharn)
THAMMASAT UNIVERSITY
FACULTY OF LAWS
THESIS
BY
MISS SIRAKARN MEEKLAM
ENTITLED
PROTECTION OF TRADITIONAL KNOWLEDGE ASSOCIATED WITH
PLANT GENETIC RESOURCES: A COMPARATIVE STUDY OF
THAI LAW AND INDIAN LAW
was approved as partial fulfillment of the requirements for
the degree of Master of Laws in Business Laws (English Program)
on August 14, 2015
Chairman
Member and Advisor
Member
Member
Dean
(1)
Thesis Title PROTECTION OF TRADITIONAL
KNOWLEDGE ASSOCIATED WITH PLANT
GENETIC RESOURCES: A COMPARATIVE
STUDY OF THAI LAW AND INDIAN LAW
Author Miss Sirakarn Meeklam
Degree Master of Laws
Major Field/Faculty/University Business Laws (English Program)
Faculty of Law
Thammasat University
Thesis Advisor Professor Amnat Wongbandit, D.Jur.
Academic Years 2014
ABSTRACT
Traditional knowledge, specifically traditional knowledge associated with
plant genetic resources, has been treated as public knowledge for free exploitation
without due respect or concern for the effort taken by the indigenous and local
communities to preserve and develop such knowledge. Globalization has caused its
misuse which in turn, has led to bio-piracy and unsustainable use of such knowledge.
Consequently, the protection of traditional knowledge has been a subject of increasing
importance. In this regard, several countries have developed legal mechanisms for
protecting their traditional knowledge and plant genetic resources either by
intellectual property protection or by a sui generis system or a combination of both.
Thailand, as one of the countries rich in traditional knowledge and plant
genetic resources, has opted for a sui generis system by enacting two major laws
directly addressing the protection of traditional knowledge and plant genetic
resources. First, the Thailand Plant Varieties Protection Act B.E. 2542 (1999) aims to
protect rights of plant breeders in order to promote innovative plant breeding activities
and to protect the rights of farmers and local communities including related
knowledge in respect of their participation in improving, conserving and making use
of plant genetic resources. Second, the Thai Traditional Medicine Intelligence Act
(2)
B.E. 2542 (1999) aims to protect Thai traditional medicine and also to manage access
to traditional knowledge and biological resources in herbal medicine. However, both
laws neither provide a functional system nor an effective enforcement.
This thesis aims at studying the characteristics and related fundamental
principles of traditional knowledge specifically on the legal measures for protection of
traditional knowledge associated with plant genetic resources, analyzing the problems
of the Thailand Plant Varieties Protection Act B.E. 2542 (1999) and the Thai
Traditional Medicine Intelligence Act B.E. 2542 (1999) and proposing suggestions in
order to resolve the difficulties arising from both of the Acts. Furthermore, the study
will provide recommendations to enhance the effective enforcement of the Acts and to
develop practical system for the protection by comparing them with Indian laws and
system which is considered to be one of the most effective laws and system in
protecting its traditional knowledge and plant genetic resources.
Consequently, this thesis proposes new legislative solutions to amend the
law concerning the management of access and benefit-sharing and the protection of
farmers’ rights and communities’ rights. In addition, the establishment of a central
database is suggested to collect and archive Thai traditional knowledge including Thai
traditional medicine.
Keywords: Protection of Traditional Knowledge, Protection of Plant Genetic
Resources
(3)
ACKNOWLEDGEMENTS
At the end of my thesis I would like to thank all those people who made
this thesis possible and an unforgettable experience for me.
First of all, I would like to express my sincere gratitude to the Faculty of
Laws, Thammasat University for giving me an opportunity to be part of the Master of
Laws (English Program) and to all the professors for educating me of legal profession
which is undoubtedly very useful to my career.
To Professor Amnat Wongbandit, my thesis advisor, I would like to
express my deepest gratitude for his encouragement, advice, and support. I am
extremely grateful for his assistance and suggestions through the whole thesis process.
Besides my advisor, I would like to thank Dr. Munin Pongsapan, the
Chairman of my thesis committee, and the rest of my thesis committee: Assistant
Professor Nartnirun Junngam and Adjunct Professor Satyapon Sachdecha for
devotion of their valuable time and for their insightful guidance and encouragement,
but also for all the advice which incented me to widen my research from various
perspectives.
My warm thanks to all my colleagues and friends who are always there
for me to give me warm encouragement and support throughout my thesis writing
period.
Lastly, I take this opportunity to express the profound gratitude from my
deep heart to my parents, Mr. Tanapong Meeklam and Mrs. Veerawan Meeklam, who
always give me the everlasting love and support. All my success including the success
of this thesis is devoted to them.
Miss Sirakarn Meeklam
Thammasat University
Year 2014
(4)
TABLE OF CONTENTS
Page
ABSTRACT (1)
ACKNOWLEDGEMENTS (3)
LIST OF TABLES (10)
LIST OF FIGURES (11)
LIST OF ABBREVIATIONS (12)
CHAPTER 1 INTRODUCTION 1
1.1 Introduction 1
1.2 Hypothesis 3
1.3 Objective of Study 3
1.4 Scope of Thesis 4
1.5 Methodology 4
1.6 Expected Results 4
CHAPTER 2 GENERAL BACKGROUND 6
2.1 Definition and Classification of Traditional Knowledge 7
2.2 Characteristics of Traditional Knowledge 9
2.3 Protection of Traditional Knowledge and Genetic Resources 10
2.4 Fundamental Principles Relating to Traditional Knowledge and 11
Plant Genetic Resources
2.4.1 Common Heritage of Mankind 11
2.4.2 State Sovereignty 13
2.4.3 Sustainable Development 14
(5)
2.5 Traditional Knowledge and Plant Genetic Resources at 15
an International Level
2.5.1 Convention on Biological Diversity (1992) 15
2.5.1.1 Prior Informed Consent (PIC) 17
2.5.1.2 Mutually Agreed Terms (MAT) 17
2.5.1.3 Benefit-Sharing (BS) 18
2.5.2 The Agreement on Trade-Related Aspects of Intellectual 18
Property Rights (1994)
2.5.3 The International Treaty on Plant Genetic Resources for 20
Food and Agriculture (2001)
2.5.4 The International Union for the Protection of New Varieties 23
of Plants
2.5.5 The Nagoya Protocol on Access to Genetic Resources and the 25
Fair and Equitable Sharing of Benefits Arising from their
Utilization to the Convention on Biological Diversity (2010)
CHAPTER 3 PROTECTION OF TRADITIONAL KNOWLEDGE AND 30
PLANT GENETIC RESOURCES IN INDIA
3.1 The Problems of Bio-piracy in India 30
3.1.1 Turmeric Case 30
3.1.2 Neem Case 31
3.2 Protection of Traditional Knowledge in India 31
3.3 Laws related to the protection of Traditional Knowledge and 32
Plant Genetic Resources in India
3.3.1 The Protection of Plant Varieties and Farmers’ Rights Act, 32
2001
3.3.1.1 Protection of Plant Varieties 33
(1) A New Plant Variety 33
(2) An Extant Variety 34
(3) Farmers’ Variety 34
(4) An Essentially Derived Variety (EDV) 35
(6)
3.3.1.2 Conditions for Protection 35
(1) Novelty 36
(2) Distinctiveness 36
(3) Uniformity 36
(4) Stability 37
3.3.1.3 Rights granted under the PPVFR Act 37
(1) Breeders Rights 37
(2) Researchers Rights 37
(3) Farmers Rights 37
(4) Community Rights 39
3.3.1.4 Terms of Protection 39
3.3.1.5 Benefit-Sharing 39
3.3.1.6 The National Gene Fund 40
3.3.1.7 Revocation 40
3.3.1.8 Offences and Penalties 41
(1) Penalty for applying false denomination 42
(2) Penalty for selling varieties to which false denomination 42
is applied
(3) Penalty for falsely representing a non-registered variety 42
as registered
(4) Penalty for subsequent offence 42
3.3.2 The Biological Diversity Act, 2002 42
3.3.2.1 Implementation of the BDA 43
(1) At the National level: NBA 43
(2) At the State level: SBBs 44
(3) At the Local level: BMCs 44
3.3.2.2 Access to Biological Resources and Regulatory Approvals 45
3.3.2.3 Access and Benefit-Sharing and the National Biodiversity 46
Fund
3.3.2.4 Contravention and Penalties 47
3.3.3 The Traditional Knowledge Digital Library (TKDL) 47
3.3.4 The Patents (Amendment) Act, 2005 (Act No.15 of 2005) 52
(7)
3.3.4.1 Conditions for Protection 52
(1) Novelty 52
(2) Inventive Step 52
(3) Capable of Industrial Application 53
(4) Not excluded from patentability 53
3.3.4.2 Rights granted under the Patents Act of India 54
3.3.4.3 Terms of Protection 54
CHAPTER 4 PROTECTION OF TRADITIONAL KNOWLEDGE AND 55
PLANT GENETIC RESOURCES IN THAILAND
4.1 The Protection of Bio-piracy in Thailand 55
4.1.1 Kwao Krua 55
4.1.2 Plao Noi 56
4.2 Protection of Traditional Knowledge in Thailand 56
4.3 Laws related to the protection of Traditional Knowledge and 57
Plant Genetic Resources in Thailand
4.3.1 The Constitution of the Kingdom of Thailand 57
B.E. 2540 (1997) and B.E. 2550 (2007)
4.3.2 Thailand Plant Varieties Protection Act B.E. 2542 (1999) 58
4.3.2.1 Protection of the New Plant Varieties 59
(1) Conditions for Protection 59
(2) Rights granted under the Thai PVP Act 60
(3) Terms of Protection 60
(4) Farmers’ Privilege 60
4.3.2.2 Protection of the Extant Varieties 61
(1) Protection of the Local Domestic Plant Varieties 61
1. Conditions for Protection 62
2. Rights granted under the Thai PVP Act 62
3. Terms of Protection 62
(2) Protection of the General Domestic Plant and 63
Wild Plant Varieties
(8)
(3) Access and Benefit-Sharing 63
1. The Local Domestic Plant Varieties 63
2. The General Domestic Plant and Wild Plant 64
Varieties
(4) The Plant Varieties Protection Fund 64
4.3.2.3 Penalties 65
4.3.2.4 Thailand Plant Varieties Protection Act B.E. 2542 (1999) 65
and the International Union for the Protection of
New Varieties of Plants (UPOV)
4.3.3 The Thai Traditional Medicine Intelligence Act B.E. 2542 71
(1999)
4.3.3.1 Protection of Thai Traditional Medicine Intelligence 71
(1) The National formula 72
(2) General formula 73
(3) Personal or private formula 73
1. Rights granted under the Act 73
2. Terms of Protection 73
(4) Protection of Herbs 74
4.3.3.2 Funding on Traditional Thai Medicine Intelligence 74
4.3.3.3 Penalties 74
4.3.4 The Patent Act B.E.2522 (1979) 75
4.3.4.1 An Invention Patent 75
(1) Conditions for Protection 75
1. Novel 76
2. Inventive step 76
3. Industrial Application 77
(2) Rights granted under the Thai Patent Act 77
(3) Terms of Protection 77
4.3.4.2 A Design Patent 77
4.3.4.3 A Petty Patent 78
4.3.5 The Thai Traditional Knowledge Protection Act B.E… 78
(9)
4.4 Comparison of Protection of Traditional Knowledge and 81
Plant Genetic Resources between India and Thailand
4.4.1 Traditional Knowledge and Plant Genetic Resources 81
Management on Access and Benefit-Sharing
4.4.1.1 Accessing Traditional Knowledge and Plant Genetic 82
Resources
4.4.1.2 Benefit-Sharing 83
4.4.2 Farmers’ Rights and Communities’ Rights 85
4.4.3 Traditional Knowledge and Plant Genetic Resources 86
Management
CHAPTER 5 CONCLUSIONS AND RECOMMENDATIONS 90
5.1 Management of Access and Benefit-Sharing 90
5.2 Protection of Farmers’ Rights and Communities’ Rights 91
5.3 Establishment of a central database for Traditional Knowledge 91
REFERENCES 93
APPENDICES
APPENDIX A: THE PROTECTION OF PLANT VARIETIES 106
AND FARMERS’ RIGHTS ACT, 2001
APPENDIX B: THE BIOLOGICAL DIVERSITY ACT, 2002 155
APPENDIX C: THAILAND PLANT VARIETIES PROTECTION 182
ACT B.E. 2542 (1999)
BIOGRAPHY 204
(10)
LIST OF TABLES
Tables Page
3.1 Successful outcome against Bio-piracy related to traditional known 51
medicinal plant using TKDL
4.1 Comparison of Plant Variety Protection Regime – UPOV 1992, 69
the Indian PPVFR Act and the Thai PVP Act
4.2 Statistics of Thai Traditional Knowledge Notifications 88
(11)
LIST OF FIGURES
Figures Page
2.1 The Three Spheres of Sustainability 15
2.2 Access and Benefit-Sharing: An overview 17
3.1 The Traditional Knowledge Digital Library 50
(12)
LIST OF ABBREVIATIONS
Symbols/Abbreviations Terms
ABS
ABS-CH
ARS
BDA
BIO
BMC
BS
CBD
CHM
CSIR
DIP
EDV
EPO
EU
GATT
GEN
IP
IPC
IPO
IPRs
ITPGRFA
MAT
Access and Benefit-Sharing
Access and Benefit-sharing Clearing-
House
Agricultural Research Service
Biological Diversity Act 2002
Biotechnology Industry Organization
Biodiversity Management Committee
Benefit-Sharing
Convention on Biological Diversity
Common Heritage of Mankind
Council of Scientific & Industrial
Research
Department of Intellectual Property,
Ministry of Commerce
Essentially Derived Variety
European Patent Office
European Union
General Agreement on Tariffs and Trade
Genetic Engineering & Biotechnology
News
Intellectual Property
International Patent Classification
International Patent Office
Intellectual Property Rights
International Treaty on Plant Genetic
Resources for Food and Agriculture
Mutually Agreed Terms
(13)
Nagoya Protocol
NBA
PBRs
PGRs
PhRMA
PIC
PPVFR Act
SBB
Thai PVP Act
TK
TKDL
TKRC
TRIPS
UN
UPOV
U.S.
USDA
USPTO
Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable
Sharing of Benefits Arising from their
Utilization to the Convention on
Biological Diversity
National Biodiversity Authority
Plant Breeders’ Rights
Plant Genetic Resources
Pharmaceutical Research Manufacturers
of America
Prior Informed Consent
Protection of Plant Varieties and
Farmers’ Rights Act 2001
State Biodiversity Board
Plant Variety Protection Act B.E.2542
(1999)
Traditional Knowledge
Traditional Knowledge Digital Library
Traditional Knowledge Resource
Classification
Trade-Related Aspects of Intellectual
Property Rights
United Nations
International Union for the Protection of
New Varieties of Plants
United States of America
United States Department of Agriculture
United States Patent and Trademark
Office
WIPO World Intellectual Property Organization
WTO World Trade Organization
1
CHAPTER 1
INTRODUCTION
1.1 Introduction
The significance of the international system for protection of intellectual
property (hereinafter “IP”) as a tool for protecting the interests of the owner of
intellectual products has increasingly become an important aspect. Currently, IP has
been developed in line with the perceived needs of technologically advanced
societies.1
On the other hand, traditional knowledge has been freely accessed and used
in researches and development for many new intellectual products. In recent years,
indigenous people, local communities, and governments around the world are
becoming aware of the need for the recognition and protection of their knowledge and
have demanded equivalent protection for these traditional knowledge systems.2
Traditional knowledge associated with plant genetic resources are
increasingly being used commercially in the production of food, pharmaceuticals and
other processed products.3
Given their increase in commercial importance, traditional
knowledge and plant genetic resources have become more and more valuable. With
further development of scientific and technical possibilities, the need for plant genetic
resources will surely grow with time.
Without any laws or policies governing the use of traditional knowledge
and plant genetic resources, countries in possession of such knowledge and resources
are being abused of their knowledge and resources without proper consent.4
This has
1 World Intellectual Property Organization, Traditional Knowledge and Intellectual
Property - Background Brief, available at http://www.wipo.int/pressroom/en/briefs/
tk_ip.html (last visited March 21, 2015). 2
Id. 3
Luke E. Mumba & Wilson Marandu, Traditional Knowledge and Plant Genetic
Resources Guidelines (2012), http://naturaljustice.org/wp-content/uploads/pdf/SanBio
Guidelines.pdf (last visited March 21, 2015). 4
Id.
2
led to bio-piracy and unsustainable use of these knowledge and resources such as
Turmeric, Neem and Kwao Krua. Subsequently, the protection of traditional
knowledge and plant genetic resources has been widely emphasized and debated in
the international forum.5
In this regard, several countries have developed legal mechanisms to
protect their traditional knowledge and plant genetic resources with an objective of
sustainable use and to ensure fair and equitable benefit-sharing arising from the use of
such resources. Some countries use intellectual property rights regimes as a tool while
others develop their own sui generis systems.6
Thailand, as one of the countries rich in traditional knowledge and plant
genetic resources, has opted for a sui generis system by enacting two laws. First, the
Thailand Plant Varieties Protection Act B.E. 2542 (1999) that aims to protect the
rights of plant breeders in order to promote innovative plant breeding activities and to
protect the rights of farmers and local communities including any related knowledge
in respect of their participation in improving, conserving, and making use of plant
genetic resources. Second, the Thai Traditional Medicine Intelligence Act B.E. 2542
(1999) that aims to protect Thai traditional medicine and also manage access to
traditional knowledge and biological resources in herbal medicine.
The issue of protection of traditional knowledge, bio-piracy, and fair and
equitable sharing of benefits arising from the utilization of traditional knowledge and
plant genetic resources has also been widely considered in India.7
As a result, India
has taken various initiatives regarding the protection of its traditional knowledge and
plant genetic resources and has become one of the most successful countries in
5 Panamas Kudngaongarm, Thai Traditional Medicine Protection (Part I), 14
Thailand Law Journal (2011), available at http://www.thailawforum.com/articles/
Thai-traditional-medicine-protection-part1.html (last visited March 21, 2015). 6
World Intellectual Property Organization, supra note 1. 7
See Ministry of Commerce and Industry, Government of India, Protecting
Traditional Knowledge: Why it is important, available at http://commerce.nic.in/wto
april2002.htm (last visited March 21, 2015).
3
protecting its knowledge and resources. In a few years, in Europe alone, India has
successfully brought about the cancellation or withdraws of 86 applications patenting
traditionally known medicinal formulations.8
Therefore, a comparison study between
the laws relating to protection of traditional knowledge and plant genetic resources in
India and Thailand could be a good guidance to enhance and develop systems for
protection purposes in Thailand.
1.2 Hypothesis
Currently, the laws for protection of traditional knowledge associated with
plant genetic resources in Thailand have loopholes and do not address many important
issues. The study of Indian laws and system in comparison is, therefore, an excellent
model for the development of the Thai laws regarding protection of traditional
knowledge associated with plant genetic resources.
1.3 Objective of Study
• To study the characteristics, related fundamental principles and
guidelines for protection of traditional knowledge associated with plant
genetic resources at an international level.
• To present legal measures for protection of traditional knowledge
associated with plant genetic resources in India.
• To present legal measures for protection of traditional knowledge
associated with plant genetic resources in Thailand.
• To review and analyze legal measures and problems relating to the
protection of traditional knowledge associated with plant genetic
resources in Thailand compared to India.
• To develop recommendations to support the protection of traditional
knowledge associated with plant genetic resources in Thailand.
8
“TKDL Outcomes against bio-piracy”, available at http://www.tkdl.res.in/tkdl/lang
default/common/Outcome.asp (last visited March 22, 2015).
4
1.4 Scope of Thesis
• This thesis studies and analyzes the regulations relating to the protection
of traditional knowledge and genetic resources with regard to
international practices including definition, classification, characteristics,
fundamental principles and international regulations governing the
protection of traditional knowledge and genetic resources.
• This thesis studies and analyzes Indian regulations relating to the
protection of traditional knowledge associated with plant genetic
resources i.e. the Protection of Plant Varieties and Farmers’ Rights Act,
2001 including farmers’ rights and the Biological Diversity Act, 2002.
• This thesis studies and analyzes Thai regulations relating to the
protection of traditional knowledge associated with plant genetic
resources including farmers’ rights and compares them with the
regulations from India.
1.5 Methodology
The method used in this thesis is based on documentary research by
studying and analyzing English and Thai text books, journals, articles, law magazines,
statutory laws, government publications, scholar’s opinion, information on the
internet, and other beneficial relevant documents.
1.6 Expected Results
• To understand the background, characteristics, and concepts of the
traditional knowledge associated with plant genetic resources.
• To provide a source of information, especially on the Thai regulations
relating to traditional knowledge associated with plant genetic resources
that can serve as guidelines for further studies or researches.
5
• To comprehend the difference between Indian laws and Thai laws
governing traditional knowledge associated with plant genetic resources
at a national level.
• To use analytical results as a guideline for developing systems and/or
rectifying laws relating to the protection of traditional knowledge
associated with plant genetic resources in Thailand.
6
CHAPTER 2
GENERAL BACKGROUND
The growing importance relating to traditional knowledge (hereinafter
“TK”) and relevant concerns about preserving cultural and biological diversity have
raised various policies, ethical and legal concerns at the national, regional and
international levels. TK has become an issue in relation to a wide range of subject
areas including food and agriculture, biological diversity and the environment,
biotechnology innovation and regulation, human rights, cultural policies, trade and
economic development.9
TK associated with biological resources is an intangible component. It has
the potential of being translated into commercial benefits by providing leads or clues
for development of useful products and processes for the benefit of mankind.10
The
valuable leads or clues provided by TK help save time, money and investments of
modern biotechnology and other industries into research and product development.11
Reasonably, we can say that a share of such benefits should accrue to the creators or
holders of such TK.12
Some countries have specific legislation protecting this kind of
knowledge while some other countries feel their existing Intellectual Property Rights
(hereinafter “IPRs”) regime protects such knowledge suitably.13
9 World Intellectual Property Organization, Intellectual Property and Genetic
Resources, Traditional Knowledge, and Folklore, 1, http://www.wipo.int/edocs/
pubdocs/en/intproperty/450/wipo_pub_l450gtf.pdf (last visited March 8, 2015). 10
VINOD V. SOPLE, MANAGING INTELLECTUAL PROPERTY: THE STRATEGIC
IMPARATIVE 230 (Prentice-Hall of India 2006). 11
Committee on Trade and Environment Council for Trade-Related Aspects of
Intellectual Property Rights, Protection of Biodiversity and Traditional Knowledge –
The Indian Experience, available at http://commerce.nic.in/ip_c_w_198.htm (last
visited March 4, 2015). 12
Vishwas Kumar Chouhan, “Protection of Traditional Knowledge in India by
Patent: Legal Aspect,” 3 Journal of Humanities and Social Science (JHSS) 35, 35-
42 (2012). 13
S K Tripathi, “Traditional Knowledge: Its Significance and Implication,” 2(2) Indian Journal of Traditional Knowledge 99, 99-106 (2003).
7
2.1 Definition and Classification of Traditional Knowledge
TK is a difficult concept to define because it encompasses such diversity.
It covers a wide range of different subject areas from art to agriculture as well as
medicinal uses of plants and traditional systems for medical diagnosis.14
It generally
includes the intellectual and intangible cultural heritage, practices and knowledge
systems of indigenous, traditional communities and local communities. TK may exist
in indigenous or local communities as secret oral traditions that have been passed on
over generations or it could also be documented in publicly available written or even
electronic media.15
Therefore, there is not yet an accepted definition of TK at the
international level. Still, there are some definitions of TK provided as follows;
According to the International Council for Science, “Traditional
Knowledge” has been defined as “A cumulative body of knowledge, know-how,
practices and representations maintained and developed by people with extended
histories of interaction with the natural environment. These sophisticated sets of
understandings, interpretations and meanings are part and parcel of a cultural complex
that encompasses language, naming and classification systems, resource use practices,
ritual, spirituality and worldview.”16
For the Convention on Biological Diversity, “Traditional Knowledge” has
been defined as “Knowledge, innovations and practices of indigenous and local
communities around the world that have been developed from experience gained over
the centuries and adapted to the local culture and environment. Traditional knowledge
is transmitted orally from generation to generation and tends to be collectively owned
and takes the form of stories; songs; folklore; proverbs; cultural values; beliefs;
14
Ryan Abbott, M.D., J.D., and M.T.O.M., WIPO, Documenting Traditional Medical
Knowledge, 3 (2014), http://www.wipo.int/export/sites/www/tk/en/resources/pdf/
medical_tk.pdf (last visited March 4, 2015). 15
Id. 16
International Council for Science, Report from the ICSU Study Group on Science
and Traditional Knowledge 3 (March 2002), http://www.icsu.org/publications/reports
-and-reviews/science-traditional-knowledge/Science-traditional-knowlede.pdf (last
visited March 4, 2015).
8
rituals; community laws; local language; and agricultural practices, including the
development of plant species and animal breeds. Traditional knowledge is mainly of a
practical nature, particularly in such fields as agriculture, fisheries, health,
horticulture, and forestry.”17
Another concept of TK has been defined in 1998-1999 where the World
Intellectual Property Organization (WIPO) conducted fact-finding missions on IP and
TK. According to the report, the term “Traditional Knowledge” refers to “…
traditional-based literary, artistic or scientific works; performances, inventions,
scientific discoveries; designs, marks, names and symbols; undisclosed information;
and all other tradition-based innovations and creations resulting from intellectual
activity in the industrial, scientific, literature or artistic fields.”18
In addition, the WIPO continues in the same report above by classifying
TK into 9 categories as following.19
1. Agricultural knowledge.
2. Scientific knowledge.
3. Technical knowledge.
4. Ecological knowledge.
5. Medicinal knowledge, including related medicines and remedies.
6. Biodiversity-related knowledge.
7. Expression of folklore in the form of music, dance, song, handicraft,
designs, stories and artwork.
8. Elements of languages such as names, geographical indications and
symbols.
9. Movable cultural properties.
17 The Secretariat of the Convention on Biological Diversity, Traditional Knowledge
and the Convention on Biological Diversity, available at https://www.cbd.int/
traditional/intro.shtml (last visited March 5, 2015). 18
B. Andrews, Explaining and Defining Traditional Knowledge Terminology, 20
(2013), https://absch.cbd.int/api/v2013/documents/08DAF499-1F70-3DA3-9887-4D 56521D3D8D/attachments/TK_TERMINOLOGY.pdf (last visited March 20, 2015). 19
THEOFRANSUS LITAAY, MANAGING BIOSECURITY ACROSS BORDERS, 33 (Ian Falk, Ruth Wallace, and Marthen L. Ndoen ed., Springer 2011).
9
2.2 Characteristics of Traditional Knowledge
TK relates to various areas and contains plenty of information resulting
from creativity and constant improvements which have been used and passed on from
generation to generation over a long period of time. Therefore, TK is a collective
knowledge arising from learning processes and beliefs resulting from continual
experiences and knowledge. Such knowledge has been accumulated, scrutinized, and
inherited extensively, becoming TK at last. Most TKs usually have some common
characteristics as described below.20
• TK is holistic: all things are interconnected and nothing is
comprehended in isolation.
• TK is intuitive: based on deeply held holistic understanding and
knowledge.
• TK is qualitative: knowledge is gained through intimate contact
with the local environment without patterns or trends. It is based on data
collected by resource users through observation and hands-on experience.
• TK is transmitted inter-generationally by oral traditions: teaching is
accomplished through stories and participation of children in culturally
important activities.
• TK is inseparable: it is rooted in a social context that sees the world
in terms of social and relations among all life forms. All parts of its nature are
inseparable.
• TK is based on mutual well-being, reciprocity, and cooperation:
these promote balance and harmony between the well-being of the individual
and the well-being of the social group.
• TK is often based on cumulative, collective practical experiences. It
has constant improvements as new knowledge is continually integrated to the
existing.
20 “Definitions of Traditional Knowledge,” http://nafaforestry.org/forest_home/
documents/TKdefs-FH-19dec06.pdf (last visited March 7, 2015).
10
• TK is promoting of stewardship: it takes a proactive approach to
environmental protection and an ecosystem-focused approach to resource
management.
2.3 Protection of Traditional Knowledge and Genetic Resources
Currently, TK and genetic resources have been given high priority since
customary and informal knowledge have been made publicly available and have
exploited without adequate benefit-sharing and compensation. To make matters
worse, researchers or companies often develop new products from such existing
knowledge and claim the IPRs themselves.21
By claiming ownership on these TK and genetic resources, researchers or
companies can benefit from anyone who uses their patented products including those
in the source countries where the plants are originated and the local people who share
their TK related to such resources, for example, plants’ healing abilities or other
useful properties can even get contested for infringement. Such illicit and
uncompensated appropriation of TK is exploitative and has caused concerns among
developing countries as well as among indigenous and local communities.22
In
consequence, the issue of strengthening the control of states over their genetic
resources and associated knowledge has been raised in both international and national
sectors.23
Accordingly, genetic resources are part of biological materials that:24
• Contain genetic information of value; and
• Are capable of reproducing or being reproduced.
21
INTERPRETING AND IMPLEMENTING THE TRIPS AGREEMENT: IS IT FAIR? 78 (Justin Malbon, and Charles Lawson ed., Edward Elgar 2008). 22
Id. 23
Id. 24
World Intellectual Property Organization, Intellectual Property and Genetic
Resources, Traditional Knowledge and Traditional Cultural Expressions: An
Overview, 18 (2015), http://www.wipo.int/edocs/pubdocs/en/tk/933/wipo_pub_
933.pdf (last visited March 8, 2015).
11
Examples of these resources are materials of plant, animal, or microbial
origins such as medical plants, agriculture crops and animal breeds. Some TKs are
closely associated with genetic resources through the utilization and conservation of
that resource over generations and through their common use in modern scientific
research.25
The scope of this thesis will mainly focuses on the Plant Genetic
Resources*
(hereinafter “PGRs”).
2.4 Fundamental Principles Relating to Traditional Knowledge and Plant
Genetic Resources
2.4.1 Common Heritage of Mankind: CHM
The Common Heritage of Mankind (hereinafter “CHM”) principle
is an ethical and a general concept of international law. According to the principle, a
common heritage is not owned by any nation. It establishes that some localities
belong to all humanity and that their resources are available for everyone’s use and
benefit while taking into account future generations and the needs of developing
countries.26
There is no universal definition for the CHM. However, most
conceptions share 5 primary points.27
25 Id.
* According to the revised International Undertaking 1983 of the FAO, “plant genetic
resources” were defined as “the entire generative and vegetative reproductive
material of species with economical and/or social value, especially for the agriculture
of the present and the future, with special emphasis on nutritional plants.” [K.
Hammer & Y. Teklu, Plant Genetic Resources: Selected Issues from Genetic Erosion
to Genetic Engineering, 1 Journal of Agriculture and Rural Development in the
Tropics and Subtropics 17, 15-50 (2008)]. 26
Prue Taylor, The Common Heritage of Mankind: A Bold Doctrine Kept within Strict
Boundaries, available at http://wealthofthecommons.org/essay/common-heritage-
mankind-bold-doctrine-kept-within-strict-boundaries (last visited March 10, 2015). 27
See EDWIN EGEDE AND PETER SUTCH, THE POLITICS OF INTERNATIONAL LAW AND
INTERNATIONAL JUSTICE 330 (Edinburgh 2013).
12
First, there can be no private or public appropriation of the
commons. They can be used by any person or any state but not owned, as they are a
part of international heritage and therefore belong to all humankind. Second,
representatives from all nations must manage resources since a commons area is
considered to belong to everyone. Third, the use of the common shall be carried out in
accordance with a system of cooperative management for the benefit of all
humankind. Also, all nations must actively and equitably share in the benefits
acquired from exploitation of the resources from the common heritage region. Fourth,
the commons shall be reserved for peaceful purposes. There can be no weaponry or
military installations established in common areas. Fifth, the commons should be
preserved for the benefit of future generations.
Due to the fact that the CHM is a common property of mankind
which is available to anyone without restriction,28
genetic resources and related
knowledge are also considered under international law to be one of the CHMs and are
therefore classified as goods that cannot be owned. As a result, the sovereign rights of
states over genetic resources were diluted. Genetic resources and related knowledge
from developing countries have been accessed and used by individuals, companies, or
governments from mostly developed countries gaining IPRs on such resources and/or
knowledge originated from developing countries without giving an equitable
compensation in return to the original owner of those resources.29
For example, PGRs
have been freely collected in developing countries but when sold back by seed
companies, the seed varieties developed from those resources are protected by IPRs.30
At that time, many developing and lesser-developed countries have raised the concern
over this sort of bio-piracy.
28 FABIO TRONCHETTI, THE EXPLOITATION OF NATURAL RESOURCES OF THE MOON
AND OTHER CELESTIAL BODIES: A PROPOSAL FOR A LEGAL REGIME 57 (Martinus
Nijhoff, 2009). 29
Titima Runguphan, Biopiracy in Asia: A Case Study of India and Thailand,
available at http://www.researchgate.net/publication/29835623_Biopiracy_in_Asia
a_case_study_of_India_and_Thailand (last visited March 11, 2015). 30
Saskia Lemeire, Biopiracy, 13, available at http://lib.ugent.be/fulltxt/RUG01/
002/060/813/RUG01-002060813_2013_0001_AC.pdf (last visited February 25,
2015).
13
Later, with the signing of the Convention on Biological Diversity,
genetic resources have no longer considered to be a CHM but are under the control of
sovereign states.31
This has been clearly confirmed by the Article 15.1 of the
Convention on Biological Diversity which states “1.Recognizing the sovereign rights
of States over their natural resources, the authority to determine access to genetic
resources rests with the national governments and is subject to national
legislation…”32
As a result, the access to genetic resources within a state’s territory
has become subject to the sovereign rights of states.33
2.4.2 State Sovereignty
The most fundamental rule in international law is that states are
sovereign entities that may conduct any business as they please. It is a concept that
enables states a complete and exclusive control of all the people and property within
their territory. State sovereignty also includes the idea that all states are equal states.
Therefore, under the concept of state sovereignty, all states have an equal right to
function as a state and to make decisions about what occurs within their own borders
without interference from another state.34
For genetic resources, states may exercise
sovereign rights over all the genetic resources within its territory, meaning that they
may conserve or utilize them as they wish.
Despite the importance of IP to promote economic growth and
development, IPRs are being used to turn genetic resources into private property.
Many developed countries have been using the rights granted by the IP system such
as, for example, patent or plant breeder rights, to enable them exclusive rights to buy
and sell genetic resources from developing countries rich in genetic resources as a
31
The Convention on Biological Diversity Preamble 4 states that “…Reaffirming that
States have sovereign rights over their own biological resources…” 32
The CBD Article 15.1 33
BEVIS FEDDER, MARINE GENETIC RESOURCES, ACCESS AND BENEFIT SHARING:
LEGAL AND BIOLOGICAL PERSPECTIVES 32 (Routledge, 2013). 34
International Law and Organizations, A Project of the Levin Institute - The State
University of New York, available at http://www.globalization101.org/uploads/File/
Inter/interall.pdf (last visited February 28, 2015).
14
commodity. As a result, developing countries have advocated the sovereignty over
genetic resources in their own territories to provide a legal shield against infringement
of their sovereignty.
2.4.3 Sustainable Development
The theoretical framework for sustainable development evolved in
the United Nations (UN) Conference on the Human Environment, which was held in
Stockholm in 1972. The concept has been defined in many ways with the most
frequently quoted definition is from Our Common Future; a report published by the
World Commission on Environment and Development in 1987 and also known as the
Brundtland Report. It states that sustainable development is “development which
meets the needs of current generations without compromising the ability of future
generations to meet their own needs.”35
Sustainable development was then presented as a new concept
which became one of the most successful approaches to be introduced in many years.
In fact, it helped to shape the international agenda and the international community’s
attitude towards economic, social and environmental development in regard to people
with low standards of living in particular.36
At the same time, it underlines the
importance of protecting natural resources and environment.
In 1992, the UN Conference on Environment and Development in
Rio de Janeiro, or the Earth Summit has established “Agenda 21” as the global plan of
action for sustainable development. It sets out actions in regard to the social and
35
Our common future, Report of the World Commission on Environment and
Development (1987). 36
Kaj Bärlund, Sustainable Development - Concept and Action, available at
http://www.unece.org/oes/nutshell/2004-2005/focus_sustainable_development.html
(last visited February 28, 2015).
15
economic dimensions of sustainable development, conservation and management of
natural resources.37
Figure 2.1: The Three Spheres of Sustainability
Courtesy of Danville Area Community College
(Source: http://www.dacc.edu/sustainability/what)
2.5 Traditional Knowledge and Plant Genetic Resources at an International
Level
2.5.1 Convention on Biological Diversity (1992)
The Convention on Biological Diversity (hereinafter “CBD”),
adopted in May 1992, is the most comprehensive international agreement on
37 International Institute for Sustainable Development (IISD), Sustainable
Development: From Brundtland to Rio, 8 (2012), available at http://www.un.org/
wcm/webdav/site/climatechange/shared/gsp/docs/GSP1-6_Background%20on%20
Sustainable%20Devt.pdf (last visited February 28, 2015).
16
biodiversity.38
Under the CBD, genetic resources are a part of national sovereignty
and thus not common property.
The objectives of the CBD were the conservation and sustainable
use of plant and animal biodiversity and the fair and equitable sharing of the resulting
benefits. Moreover, the CBD promotes free trade to finance conservation and the
transfer of technology.39
The contents of the convention cover most of the biological
management including conservation, usage, benefits sharing, biosafety, and IP
protection.
states:
appropriate:
The content of the CBD relating to TK is in Article 8(j) which
“Each Contracting Party shall, as far as possible and as
…(j) Subject to its national legislation, respect, preserve and
maintain knowledge, innovations and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices…” As TK is regarded as knowledge,
inventions, and traditions of communities, it can therefore be protected under the
CBD.
In addition, the CBD has introduced “Access and Benefit-Sharing”
(hereinafter “ABS”) which are fundamental principles governing the access and use
of genetic resources and associated knowledge. Generally, the access and benefit-
sharing is subject to prior informed consent and the mutually agreed terms between
the user and the provider.
38
“Access and Benefit Sharing (ABS) in the Union,” available at http://ethical
biotrade.org/abs/ (last visited February 28, 2015). 39
The CBD Article
1
17
Figure 2.2: Access and Benefit-Sharing: An overview
Courtesy of The Secretariat of the Convention on Biological Diversity
(Source: https://www.environment.gov.za/sites/default/files/docs/
frequently_asked_questions.pdf)
2.5.1.1 Prior Informed Consent (PIC)
Prior informed consent (PIC) is the explicit permission given
by the competent national authority of the provider country prior to access or use of
genetic resources which is in line with national legal and institutional framework.40
2.5.1.2 Mutually Agreed Terms (MAT)
Mutually agreed terms (MAT) is an agreement reached
between the provider of genetic resources and users on the terms and conditions of
access and use of genetic resources including the benefits to be shared between both
parties.41
40
The Secretariat of the Convention on Biological Diversity, Introduction to Access
and Benefit-sharing, https://www.cbd.int/abs/infokit/brochure-en.pdf (last visited
May 8, 2015). 41
Id.
18
These contractual agreements are subject to particular
procedural and substantive principles. In addition to the parties in the contract, for
example, the involvement of other stakeholders - local communities, civil society
organizations and authorities, may be relevant.42
In addition, national laws on ABS
may require government approval of the terms of the contract.43
2.5.1.3 Benefit-Sharing (BS)
Benefit-Sharing (BS) refers to the fair and equitable sharing
of the benefits arising from the use of genetic resources with the provider as a
prerequisite for access to the genetic resource.44
The types, timing and mechanisms of
benefits to be shared may vary ranging from royalties to joint ventures, results of
research, technology transfer, etc.45
2.5.2 The Agreement on Trade-Related Aspects of Intellectual
Property Rights (1994)
In November 1982, the idea to have IPRs under the scope of the
General Agreement on Tariff and Trade (GATT) was discussed. On April 15, 1994,
the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations was signed in Marrakech, Morocco. The Act includes the agreement
establishing the World Trade Organization (WTO) along with the Multilateral
Agreements on Trade in Goods, General Agreement on Trade in Services, and the
Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter
“TRIPS agreement”).
42
Union for Ethical BioTrade, Access and Benefit Sharing (ABS): Basic Information
Sheet, http://ethicalbiotrade.org/dl/benefit-sharing/UEBT%20ABS%20Basic%20Info.
pdf (last visited February 28, 2015). 43
Id. 44
The Secretariat of the Convention on Biological Diversity, The Nagoya Protocol on
Access and Benefit-sharing, available at https://www.cbd.int/abs/infokit/revised/web/
factsheet-nagoya-en.pdf (last visited March 3, 2015). 45
“Access and Benefit Sharing (ABS),” available at https://www.cbd.int/cop/cop11/
doc/cop-11-media-press-brief-abs.pdf (last visited May 11, 2015).
19
The TRIPS agreement is a binding for all members of the WTO. It
is the most comprehensive international instrument that sets out the minimum
standards of IP protection in which member countries are required to establish an aim
at strengthening and harmonizing the national treatment of IPRs on a global scale.46
The framework of the TRIPS agreement covers almost all important
kinds of IP protection including patent and plant breeders’ rights (hereinafter “PBRs”)
which directly deals with TK and PGRs. Pursuant to the TRIPS agreement, members
shall provide patent protection for any inventions, whether products or processes, in
all fields of technology; provided that they are new, involve an inventive step and are
capable of industrial application.47
Nevertheless, the conditions set out under the
agreement do not enable the patenting of TK due to the fact that it does not meet the
condition of being a novelty.
The TRIPS agreement stimulates countries to adopt a law as a tool
to protect plants as well as essential biological processes for the production of plants.
This can be seen in Article 27.3(b) which states;
“Members may also exclude from patentability:
…(b) plants and animals other than micro-organism, and essentially
biological processes for the production of plants or animals other than non-biological
and microbiological processes. However, Members shall provide for the protection of
plant varieties either by patents or by an effective sui generis system or by
a combination thereof.”
From the above-mentioned, the TRIPS agreement allows countries
to exclude plants and essentially biological processes for the production of plants
from the patent system. However, the Member States shall provide for the protection
46
See Carsten Fink, Intellectual property and the WTO, 1 (November 2004). 47
The TRIPS agreement Article 27 states that “1. Subject to the provisions of
paragraphs 2 and 3, patents shall be available for any inventions, whether products
or processes, in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application…”
20
of plant varieties either by patents or an effective sui generis system or a combination
of both. This flexibility is permitted due to the lack of consensus among countries in
regard to patents for living organisms.
As a result, many developing countries and least-developed
countries48
are currently drafting their own sui generis systems in compliance with
Article 27.3(b) of the TRIPS agreement to protect their biological resources, farmers’
rights and related knowledge. Such systems tend to reflect in depth the lifestyle,
culture and rights of indigenous peoples, traditional farmers and related knowledge in
an attempt to create and balance their rights with the extensive rights granted to
breeders under patent systems.
2.5.3 The International Treaty on Plant Genetic Resources for Food
and Agriculture (2001)
In November 2001, the Food and Agriculture Organization
Conference approved the The International Treaty on Plant Genetic Resources for
Food and Agriculture (hereinafter “ITPGRFA”). It is the first international agreement
focusing specifically on the conservation and sustainable use of PGRs for food and
agriculture that is legally binding.
The ITPGRFA covers all PGRs relevant to food and agriculture.
Given that sustainable use of PGRs is crucial to food security, The Treaty aims at
establishing an efficient and effective way to facilitate access to PGRs for food and
agriculture with fair and equitable sharing of benefits derived from their use, in
harmony with the CBD, for sustainable agriculture and food security.49
48
Developing-countries and least-developed countries which are drafting their sui
generis system are, for example, Myanmar, Cambodia, Nepal, etc., [Kamalesh
Adhikari, Southeast Asian Council for Food Security And Fair Trade, Protection of
Farmers’ Rights over Plant Varieties in Southeast Asian Countries, 2008.] 49
“International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGR),” available at http://www.cambia.org/daisy/KeyOrgs/1236/418/424/425.html
(last visited March 1, 2015).
21
The important feature of the Treaty is a multilateral system for
access and benefit-sharing which certain categories of the ITPGRFA guarantee
facilitated access in return for benefit-sharing.50
However, in respect to TK, the key
provision of the Treaty is its recognition of Farmers’ Rights. The ITPGRFA
recognizes the contributions made by farmers in conserving and developing crop
genetic resources.51
It allows farmers to freely access genetic resources, and to use
and save seeds under their national law.
Article 9 of the ITPGRFA states the farmers’ rights that:
“9.1 The Contracting Parties recognize the enormous contribution
that the local and indigenous communities and farmers of all regions of the world,
particularly those in the centers of origin and crop diversity, have made and will
continue to make for the conservation and development of plant genetic resources
which constitute the basis of food and agriculture production throughout the world.
9.2 The Contracting Parties agree that the responsibility for
realizing Farmers’ Rights, as they relate to plant genetic resources for food and
agriculture, rests with national governments. In accordance with their needs and
priorities, each Contracting Party should, as appropriate, and subject to its national
legislation, take measures to protect and promote Farmers’ Rights, including:
(a) protection of traditional knowledge relevant to plant genetic
resources for food and agriculture;
(b) the right to equitably participate in sharing benefits arising from
the utilization of plant genetic resources for food and agriculture; and
50
Institute for the Advanced Study of Sustainability Traditional Knowledge, United
Nations University, International Treaty on Plant Genetic Resources (ITPGRFA),
available at http://www.unutki.org/default.php?doc_id=54 (last visited March 1,
2015). 51
See Farmers’ Rights: Resource pages for decision-makers and practitioners,
Farmers’ Rights in the International Treaty on Plant Genetic Resources for Food and
Agriculture, available at http://www.farmersrights.org/about/fr_in_itpgrfa.html (last
visited March 4, 2015).
22
(c) the right to participate in making decisions, at the national level,
on matters related to the conservation and sustainable use of plant genetic resources
for food and agriculture.
9.3 Nothing in this Article shall be interpreted to limit any rights
that farmers have to save, use, exchange and sell farm-saved seed/propagating
material, subject to national law and as appropriate.”52
These are important substantive provisions that potentially go
further than Article 8(j) of the CBD in respect of the ITPGRFA, particularly by
establishing the rights of farmers to participate in national decision-making on PGRs
for food and agriculture.53
Additionally, Article 14 of the ITPGRFA states that:
“Recognizing that the rolling Global Plan of Action for the
Conservation and Sustainable Use of Plant Genetic Resources for Food and
Agriculture is important to this Treaty, Contracting Parties should promote its
effective implementation, including through national actions and, as appropriate,
international cooperation to provide a coherent framework, inter alia, for capacity-
building, technology transfer and exchange of information…”
As one of the long-term objectives of the Global Plan of Action is to
realize farmers’ rights at the international, regional and national levels, the obligation
under the Treaty to undertake capacity building, technology transfer and exchange of
information activities includes addressing these activities in respect to TK.54
The ITPGRFA does, however, not define farmers’ rights. One of the
reasons why the Treaty was not able to provide a definition on farmers’ rights was
that the situation of farmers differs greatly from country to country, as do the
52
The ITPGRFA Article 9 53
UNU-IAS supra note 50. 54
Id.
23
perceptions of farmers’ rights.55
Nevertheless, it is important to establish a common
ground of understanding in order to relieve uncertainty and develop a dialogue among
stakeholders on necessary measures to be taken.56
According to a survey from the
Farmers’ Rights Project,*
perceptions of farmers’ rights generally fall within one of
two main approaches, or somewhere in-between.
“- The ownership approach refers to the right of farmers to be
rewarded for genetic material obtained from their fields and used in commercial
varieties and/or protected through intellectual property rights. The idea is that such a
reward system is necessary to enable equitable sharing of the benefits resulting from
the use of agro-biodiversity and to establish an incentive structure for continued
maintenance of this diversity. Access and benefit-sharing legislation and farmers’
intellectual property rights are suggested as central instruments.
- The stewardship approach refers to the rights that farmers must be
granted in order to enable them to continue as stewards and innovators of agro-
biodiversity. The idea is that the ‘legal space’ required for farmers to continue this
role must be upheld and that farmers involved in maintaining agro-biodiversity – on
behalf of our generation, for the benefit of all mankind – should be recognized and
rewarded for their contributions.”57
Plants
2.5.4 The International Union for the Protection of New Varieties of
In 1957, the French Government held a conference concerning the
protection of new plant varieties and emphasized the idea of PBRs. This initially led
55
“The Contents of Farmers’ Rights,” available at http://www.farmersrights.org/
about/fr_contents.html (last visited May 13, 2015). 56
Id. *
The Farmers’ Rights Project was initiated by the Fridtjof Nansen Institute (FNI) in
2005, with the aim of supporting the implementation of Farmers’ Rights. 57
Farmers’ Rights: Resource pages for decision-makers and practitioners, Two
approaches to Farmers’ Rights, available at http://www.farmersrights.org/about/
fr_contents_1.html (last visited May 13, 2015).
24
to the establishment of the International Union for the Protection of New Varieties of
Plants (hereinafter “UPOV”) and the adoption of the first text of the UPOV
Convention in 1961.58
Generally, UPOV sets the basic rules and principles for plant
variety protection for those states that are ratified to the Convention. The aim of the
UPOV is to promote the protection of PBRs and offer a means towards uniformity
and harmony on an international level. It defines explicit rules on the conditions for
granting protection, provides rules for the scope of protection and other regulations
that must be included in the laws of its members.59
The UPOV 1961 has been revised in 1972 (the UPOV 1972
amendments), 1978 (the UPOV 1978) and 1991 (the UPOV 1991). The UPOV 1961
and the UPOV 1978 are essentially similar, while the UPOV 1991 makes unique from
the earlier ones particularly on the PBRs. Currently, the UPOV 1978 and UPOV 1991
are the only two UPOV in force and new members wishing to join the UPOV may
only join the latest version, UPOV 1991.60
As of now, the UPOV has 72 members.61
Most developed countries
have chosen UPOV as their law for plant variety protection because it suits the
requirements of their industrial farming and is in their interest to promote PBRs and
strengthen private control over seeds through corporations.62
The UPOV is being
58 Pawarit Lertdhamtewe, Asian Approaches to International Law: Focusing on Plant
Protection Issues, available at https://www.academia.edu/2397939/Asian_
Approaches_to_International_Law_Focusing_on_Plant_Protection_Issues (last visited
June 20, 2015). 59
FLOWER BREEDING AND GENETICS: ISSUES, CHALLENGES AND OPPORTUNITIES FOR
THE 21TH CENTURY 83 (Neil O. Anderson ed., Springer 2007). 60
“The UPOV System: Summary of Presentation – part 2,” available at http://
lawandpolicymodule.bioversityinternational.org/fileadmin/bioversityDocs/Policy_mo
dule/Policy_Module_2005/Session6/session6c-the_UPOV_System.pdf (last visited
June 20, 2015). 61
Currently, there are 72 member States (as of June, 19, 2015) http://www.upov.int/
members/en/. 62
Kamalesh Adhikari, Protection of Farmers’ Rights over Plant Varieties in
Southeast Asian Countries, available at https://www.academia.edu/6139547/Farmers_
Rights_and_Plant_Variety_Protection_in_South_East_Asia (last visited June 18,
2015).
25
advanced by the United States (U.S.) and the European Union (EU) through bilateral
free trade agreements that tend to require developing countries, including many
countries in Asia, to join the UPOV.63
2.5.5 The Nagoya Protocol on Access to Genetic Resources and the
Fair and Equitable Sharing of Benefits Arising from their Utilization to the
Convention on Biological Diversity (2010)
The Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from their Utilization to the Convention on
Biological Diversity (hereinafter “Nagoya Protocol”) adopted in 2010 is a
supplementary agreement to the CBD.64
It is based on the fundamental principles of
access and benefit-sharing enshrined in the CBD. These principles are based on the
potential users of genetic resources obtaining the PIC of the country in which the
genetic resource is originated before accessing the resource, and negotiating and
agreeing on the terms and conditions of access and use of such resources through the
MAT.65
The objective of the Nagoya Protocol is the fair and equitable
sharing of benefits arising from the utilization of genetic resources which contributes
to the conservation and sustainable use of biodiversity.66
By establishing better
predictable conditions for access to genetic resources and ensuring benefit-sharing,
the Nagoya Protocol helps encourage the study and research on genetic resources.
Moreover, it creates incentives to conserve and sustainably use genetic resources,
thereby enhancing the development of biodiversity which leads to human well-
being.67
Referring to Article 3, the Nagoya Protocol shall apply to genetic resources
63 Pawarit supra note 58.
64 “About the Nagoya Protocol,” available at https://www.cbd.int/abs/about/ (last
visited March 2, 2015). 65
The Secretariat of the CBD, supra note 44. 66
The Nagoya Protocol Article
1 67
The Secretariat of the CBD, supra note 44.
26
and TK associated with genetic resources that are covered by the CBD as well as the
benefits arising from utilization of such resources and/or knowledge.68
Parties to the Nagoya Protocol shall take measures to ensure the
completion of PIC and fair and equitable benefit-sharing with the indigenous and
local communities. The Protocol will assist in strengthening the ability of these
communities to benefit from the use of their knowledge and inventions by setting out
provisions on access to TK associated with genetic resources.69
It will also provide
incentives for the promotion and protection of TK by encouraging the development of
community protocols, minimum requirements for MAT and model contractual clauses
related to access and benefit-sharing of TK associated with genetic resources.70
Currently, there are 59 parties, 62 ratifications, and 92 signatures to the Nagoya
Protocol.71
Interestingly, one of the global top countries like the U.S. is neither
a party of CBD nor a signatory of the Nagoya Protocol. According to Genetic
Engineering & Biotechnology News (GEN), there are reasons as following;72
• Partial similarity of the existing law of United States
Department of Agriculture (USDA) and the Agricultural
Research Service (ARS)
Despite not being the party, USDA/ARS has already have
treaty designed to be in harmony with the CBD, including the access genetic
resources. “We’ve had sort of a baby Nagoya Protocol, but working from the other
68
The Nagoya Protocol Article
3 69
The Secretariat of the CBD, supra note 44. 70
Id. 71
The Convention on Biological Diversity, Parties to the Nagoya Protocol, available
at https://www.cbd.int/abs/nagoya-protocol/signatories/ (last visited June 21, 2015). 72
CBD Access & Benefit-Sharing Guidelines and NAPPRA Quarantine Regulations,
Paper presented at Face2Face Summit, United States National Arboretum,
Washington, D.C., (October 24-26, 2012), https://www.publicgardens.org/files/files/
Summit_bios.pdf (last visited June 20, 2015).
27
side, operating for many years,” David J. Newman, D.Phil., chief of NCI’s Natural
Products Branch said.73
• National Contact or National Authorization is needed.
According to the Nagoya Protocol, signatories are needed to
designate a national focal point for access or exporting the resources. Several
countries do not have or set such any organization for such duty.
• Conflict with U.S. Patent System
Unlike the Nagoya Protocol, U.S. patent law requires sufficient
disclosure, that need not include country of origin for genetic resources or traditional
knowledge, for any further carry out, which fails the objective of the Nagoya
Protocol.
Moreover, it is difficult for companies to know where the origins of
the resources are, since they might pass through many different owners from times to
times. Biotechnology Industry Organization (BIO) and Pharmaceutical Research
Manufacturers of America (PhRMA) pointed out and even wrote a letter to U.S.
Commerce Secretary Gary Locke, “In many cases, it will not be possible for a patent
applicant to knowingly comply with such requirements, yet failure to comply could
result in denial of a patent or render a granted patent invalid,”74
and “This is because
it is not possible to meaningfully monitor or enforce conditions concerning the use of
genetic resources through such proposed measures.”75
Since Thailand is one of the countries rich in biodiversity and
associated TK, it has been a victim of misappropriation or bio-piracy of PGRs and
73
Alex Philippidis, Nagoya Protocol’s Rules for Genetic Resources Pose Challenges
for U.S. Drug Developers, available at http://www.genengnews.com/analysis-and-
insight/nagoya-protocol-s-rules-for-genetic-resources-pose-challenges-for-u-s-drug-
developers/77899449/ (last visited June 21, 2015). 74
BIO president and CEO James C. Greenwood and his PhRMA counterpart, John J.
Castellani, wrote in a May 13 Letter to US Commerce Secretary Gary Locke. 75
Alex, supra note 73.
28
associated TK which has been patented in other countries. The CBD prescribes that
access to genetic resources is subject to national legislation. Accordingly, Thailand
had included the ABS provisions in many of its regulations including Thailand Plant
Varieties Protection Act B.E. 2542 (1999) for giving effect to the provisions of the
CBD.
However, in the absence of user country measures, once the
resource leaves the country providing the resource, there is no way to ensure
compliance of ABS provisions in the country where it is used. Therefore, ratification
to the Nagoya Protocol, which aims at fair and equitable benefit-sharing arising from
the use of genetic resources including by appropriate access to genetic resources and
by appropriate transfer of relevant technologies,76
would be recommended for
Thailand.
Despite signing the Nagoya Protocol since January 31, 2012,
Thailand yet has not been a party. However, related institutes and organizations have
set up the meeting to clarify the idea and issues of the Nagoya Protocol for
consideration. Additionally, the COP-MOP 1*
meeting raised the content about the
preparation to be a party of the Nagoya Protocol as following;77
• Analyze, comprehend and amend some related articles, rules
and related organizations;
76 Cabinet Decision “Ratification of Nagoya Protocol on Access and Benefit Sharing
by India,” available at http://pib.nic.in/newsite/erelease.aspx?relid=88149 (last visited
June 21, 2015) *
COP-MOP 1 is the first meeting of the Conference of the Parties serving as the
meeting of the Parties to the Nagoya Protocol on Access and Benefit-sharing held on
13 - 17 October 2014 at Pyeongchang, Republic of Korea. 77 ภ ทรนทรทองสมา, การประช มเพ อเผยแพรขอตดส นใจจากการประช มสมชชาภาคอน สญญาวาดวยความหลากหลายทางชวภาพ สมยท 12 (Pattarin Tongsima, A meeting for
disseminate the decisions from the 12th
Meeting of the Conference of the Parties to the Convention on Biological Diversity (COP 12)), available at http://chm- thai.onep.go.th/chm/Meeting/2015/feb23-24/doc/20150223_003.pdf (last visited July 2, 2015).
29
• Set up National Focal Point, Competent National Authorities,
Publishing Authority and/or National Authorized users for The
Access and Benefit-sharing Clearing-House (ABS-CH)*;
• Consider promulgation of the Nagoya Protocol information via
ABS-CH;
• Set up the committee on duty for ABS;
• Arrange the meeting and discuss the critic.
* ABS-CH is a platform for exchanging information on Access and Benefit-sharing.
30
CHAPTER 3
PROTECTION OF TRADITIONAL KNOWLEDGE AND
PLANT GENETIC RESOURCES IN INDIA
India is among the first countries in the world to have passed
legislation granting farmers’ rights. India’s experience is important due to its
international contribution to negotiations on farmers’ rights, its position as a center of
biodiversity, and the complexities of agriculture in India within with the country is
attempting to implement these rights. As a result, Indian law is unique in that it aims
to protect the rights of plant breeders and the rights of farmers.78
3.1 The Problems of Bio-piracy in India
3.1.1 Turmeric Case
In 1995, two expatriate Indians at the University of Mississippi
Medical Center (Suman K. Das and Hari Har P. Cohly) were granted a U.S. patent on
use of turmeric in wound healing. Later, the Council of Scientific & Industrial
Research (CSIR), India filed a re-examination case with the U.S. Patent and
Trademark Office (USPTO) challenging the patent on the grounds of existing of prior
art.79
CSIR argued that turmeric has been used for thousands of years for
healing wounds and rashes and therefore its medicinal use was well known and not a
novel invention. Their claim was supported by documentary evidence of TK,
including ancient Sanskrit text and a paper published in 1953 in the Journal of the
78 Anitha Ramanna, The Fridtjof Nansen Institute, Farmers’ Rights in India: A case
study, 11 (2006), http://www.fni.no/doc&pdf/FNI-R0606.pdf (last visited March 17,
2015). 79
Mangala Anil Hirwade, Protecting Traditional Knowledge Digitally: A Case Study
of TKDL, http://eprints.rclis.org/14020/1/TKDL_paper.pdf (last visited June 23,
2015).
31
Indian Medical Association.80
Finally, the USPTO revoked this patent in 1997, after
ascertaining that there was no novelty; the findings by innovators having been known
in India for centuries.81
3.1.2 Neem Case
Neem extracts can be used against hundreds of pests and fungal
diseases that attack food crops; the oil extracted from its seeds can be used to cure
cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and
even meningitis. In 1994, the European Patent Office (EPO) granted a patent to the
U.S. Corporation W.R. Grace Company and the U.S. Department of Agriculture for a
method for controlling fungi on plants by the aid of hydrophobic extracted Neem
oil.82
In 1995, a group of international NGOs and representatives of
Indian farmers filed legal opposition against the patent claiming that the fungicidal
effect of extracts of Neem seeds had been known and used for centuries in Indian
agriculture to protect crops, and therefore, were unpatentable. In 1999, the EPO
determined that according to the evidence all features of the present claim were
disclosed to the public prior to the patent application and the patent was not
considered to involve an inventive step.83
The patent granted on was Neem was
revoked in 2000.
3.2 Protection of Traditional Knowledge in India
India is one of the richest countries in the word in terms of biodiversity,
housing around 10% of world’s species.84
The lost of biodiversity and associated
80 Id.
81 Id.
82 Id.
83 Id.
84 “Biodiversity of India: A wiki resource for Indian Biodiversity,” available at http://
www.biodiversityofindia.org/ (last visited March 4, 2015).
32
knowledge have been causing a great concern since several patents based on Indian
TK have been granted to third parties, for example, Turmeric and Neem. As a result,
the issue of protection of TK involving misappropriate use by unauthorized third
parties who have patented materials derived from TK without the proper consent of
the TK holders and fair and equitable benefit-sharing has been raised. The
negotiations at the national and international level for protection of TK and PGRs
have, therefore, become an important issue. For the national level, a sui generis
system designed to protect TK and PGRs of the indigenous and local communities in
India has been suggested.
3.3 Laws related to the protection of Traditional Knowledge and Plant Genetic
Resources in India
3.3.1 The Protection of Plant Varieties and Farmers’ Rights Act, 2001
Under the TRIPS agreement, India, as a member, is obliged to
provide protection to new plant varieties either through a patent or an effective sui
generis system or a combination of both. In order to establish an effective system for
protection of plant varieties integrating the rights of breeders, farmers and village
communities, India has opted for a sui generis system.
In 2001, the Indian Parliament has passed the Protection of Plant
Varieties and Farmers’ Rights Act (hereinafter “PPVFR Act”) which has led India to
become one of the first countries in the world to have passed a legislation granting
rights to both breeders and farmers. Generally, the objectives of the PPVFR Act are:
“1. To establish an effective system for the protection of plant
varieties, the rights of farmers and plant breeders and to encourage the development
of new varieties of plants.
2. To recognize and protect the rights of farmers in respect to their
contributions made at any time in conserving, improving and making available plant
genetic resources for the development of new plant varieties.
33
3. To accelerate agricultural development in the country, protect
plant breeders’ rights and stimulate investment for research and development both in
public & private sectors for the development of new plant varieties.
4. Facilitate the growth of the seed industry within the country
which will ensure the availability of high quality seeds and planting material to the
farmers.”85
One of the notable features of the PPVFR Act is that it had been
successful in including breeders’ rights as well as the farmers’ rights along with the
rights of the researchers and those of the public.86
Significantly, the rights of farmers
in respect to their contribution made at any time in conserving, improving and making
available PGRs for the development of the new plant varieties have been recognized
and protected.87
On the other hand, rights of plant breeders’ have also been protected
to stimulate investment for research and development of new plant varieties.
3.3.1.1 Protection of Plant Varieties
The PPVFR Act allows 4 types of varieties to be registered
reflecting the interests of the actors:
(1) A New Plant Variety
A new plant variety protection is the type of right demanded
by breeders and generally refers to varieties protected under existing PBRs systems.88
85 Ministry of Agriculture, Government of India, Protection of Plant Varieties and
Farmers’ Rights Authority, http://plantauthority.gov.in/pdf/G_Brochure_English.pdf
(last visited May 16, 2015). 86
“The Protection of Plant Variety and Farmers Rights Act 2001,” Oct. 2, 2012,
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208399 (last visited
May 16, 2015). 87
THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT, 2001,
1 (Universal Law Publishing, 2010). 88
Anitha Ramanna, Environment and Production Technology Division, India’s Plant
Variety and Farmers’ Rights Legislation: Potential Impact on Stakeholder access to
Genetic Resources, EPTD Discussion Paper, 17 (2003), http://ageconsearch.umn.
edu/bitstream/16105/1/dp020096.pdf (last visited March 17, 2015).
34
Generally, a New Plant Variety means “a plant grouping except microorganisms
within a single botanical taxon of the lowest known rank, which can be -
(i) defined by the expression of the characteristics resulting
from a given genotype of that plant grouping;
(ii) distinguished from any other plant grouping by
expression of at least one of the said characteristics; and
(iii) considered as a unit with regard to its suitability for
being propagated, which remains unchanged after such propagation,
and includes propagating material of such variety, extant
variety, transgenic variety, farmers’ variety and essentially derived variety.”89
(2) An Extant Variety
Protection for an extant variety is a new criteria attempting to
extend protection to an existing variety rather than for newly developed innovations.90
According to the PPVFR Act, an extant variety means a variety already available in
India that is notified under the Seeds Act, or a farmers’ variety, or a variety which
there is common knowledge, or any other variety in the public domain.91
(3) Farmers’ Variety
The provision for protecting farmers’ variety is the most
unique aspect of the Indian law.92
This provision emerged to satisfy the interests of
farmers who have participated in conservation and preservation of PGRs and related
knowledge. According to the PPVFR Act, farmers’ variety means “a variety which -
(i) has been traditionally cultivated and evolved by the
farmers in their fields; or
(ii) is a wild relative or land race of a variety about which the
farmers possess common knowledge.”93
89
The Protection of Plant Varieties and Farmers’ Rights Act Section 2(za) 90
Anitha, supra note 88 at 18. 91
The PPVFR Section 2(j) 92
Anitha, supra note 88 at 19. 93
The PPVFR Section 2(l)
35
Where farmer means “any person who (i) cultivates crops by
cultivating the land himself; or (ii) cultivates crop by directly supervising the
cultivation of land through any other person; or (iii) conserves and preserves,
severely or jointly, with any person, any wild species or traditional varieties or adds
value to such wild species or traditional varieties through selection and identification
of their useful properties.”94
(4) An Essentially Derived Variety (EDV)
The concept of an essentially derived variety (hereinafter
“EDV”) was first emerged when the UPOV was revised in 1991 to ensure breeders
greater protection by extending the scope of the initial breeders’ rights to varieties that
are essentially derived from the protected variety.95
The Head of Seed Science
Technology at the Indian Agriculture Research Institute pointed out that the provision
was intended to “provide protection for varieties developed by the public sector that
have been acquired by the private sector and modified slightly.”96
An EDV is a variety which is predominantly derived from
another variety that still retains the essential characteristics of the initial variety (a
result from the genotype or combination of genotypes of such initial variety) and
conforms to the initial variety in all aspects except for the differences that result from
the act of derivation while being clearly distinguishable from the initial variety.97
3.3.1.2 Conditions for Protection
The PPVFR Act lays down the criteria for registration of new
plant varieties and EDVs that it must fulfill the conditions of novelty, distinctiveness,
uniformity and stability (NDUS).98
For registration of extant varieties and farmers’
94
The PPVFR Section 2(k) 95
Anitha, supra note 88. 96
Id. 97
The PPVFR Section 2(i) 98
The PPVFR Section 15(1)
36
varieties,*
the condition of novelty is not required. They only have to conform to the
criteria of distinctiveness, uniformity and stability (DUS).99
(1) Novelty
A plant variety is 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 by the breeders or with the
consent of breeder or his successor for the purpose of exploitation of such variety for
a certain period of time before the date of filing of the application. For sale or disposal
of a new variety in India, this time period is earlier than 1 year. For outside India, the
time period is earlier than 4 years, or earlier than 6 years in the case of trees and
vines.100
(2) Distinctiveness
A plant variety is deemed distinct, if it is clearly
distinguishable by at least one essential characteristic from any other variety whose
existence is a matter of common knowledge in any country at the time of filing of the
application.101
(3) Uniformity
A plant variety is deemed 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.102
* Farmers’ varieties are a subset within the definition of extant varieties, but also mean
a variety which has been traditionally cultivated and evolved by the farmers in their
fields; or… is a wild relative or land race of a variety about which the farmers posses
the common knowledge. [INTELLECTUAL PROPERTY AND SUSTAINABLE
DEVELOPMENT: DEVELOPMENT AGENDAS IN A CHANGING WORLD 247 (Ricardo
Melendez-Ortiz & Pedro Roffe ed., Edward Elgar 2009)]. 99
The PPVFR Section 15(2) 100
The PPVFR Section 15(3)(a) 101
The PPVFR Section 15(3)(b) 102
The PPVFR Section 15(3)(c)
37
(4) Stability
A plant variety is considered stable if its essential
characteristics remain unchanged after repeated propagation or, in case of a particular
cycle of propagation, at the end of each such cycle.103
3.3.1.3 Rights granted under the PPVFR Act
(1) Breeders Rights
Breeders have exclusive rights to produce, sell, market,
distribute, import or export the protected variety.104
However, in the case of an extant
variety, unless a breeder or his successor establishes the right, the Central
Government or the State Government shall be deemed to be the owner of such right
where the extant variety is notified for a State.105
Furthermore, if the breeder’s variety
protected under the PPVFR Act is an EDV which is derived from a farmer’s variety,
the breeder may not provide authorization without the consent of the farmers or
communities who have preserved or developed such variety.106
(2) Researchers Rights
Researchers are granted complete access to the protected
variety for conducting experiments or research. This includes the use of a variety as
an initial source of variety for developing other varieties. However, the repeated use
of such variety as a parental line needs prior permission of the registered breeder if
the newly developed variety is intended for commercial production.107
(3) Farmers Rights
The PPVFR Act contains specific provisions to safeguard the
interests of farmers and local communities engaged in conserving or developing plant
varieties. The privileges of farmers are as follows:
103
The PPVFR Section 15(3)(d) 104
The PPVFR Section 28(1) 105
Id.
106 The PPVFR Section 43
107 The PPVFR Section 30
38
• A farmer who has bred or developed a new variety is
entitled for registration and protection in the same manner as a breeder of such
variety.108
• A farmer can save, use, sow, resow, exchange, share or
sell his farm produce including seeds of a variety protected under the PPVFR
Act. However, a farmer is not entitled to sell branded seed*
of a protected
variety.109
• A farmer has also been provided protection of innocent
infringement when, at the time of infringement, a farmer is not aware of the
existence of the breeders’ right.110
• A farmer who is engaged in the conservation of genetic
resources of wild relatives and landraces of economic plants and the
improvement through selection and preservation, shall be entitled for
recognition and reward**
from the Gene Fund if such material has been used
as the donor of genes in the registered varieties.111
• A farmer may claim compensation from the breeders if
the variety or propagating material fails to meet the expected performance
under given conditions as claimed by the breeder of the variety.112
• A farmer needs not pay any fees/service in any
proceedings before the Authority or Registrar or the Tribunal or the High
Court under the PPVFR Act.113
108
The PPVFR Section 39(1)(i) *
Branded seed means “any seed put in a package or any other container and labelled
in a manner indicating that such seed is of a variety protected under this Act.” 109
The PPVFR Section 39(1)(iv) 110
The PPVFR Section 42(1) **
The PPVFR Authority has introduced two awards, Plant Genome Savior
Community Award; and Plant Genome Savior Farmer Reward and Recognition, to
recognize and reward the efforts of farmers and farming communities in conservation
of genetic resources and the material so selected and preserved has been used as
donors of gene in varieties registerable under the PPVFR Act. [Sujith Koonan,
Developing country sui generis options: India’s sui generis system of plant variety
protection, Jan. 2014, available at http://www.quno.org/sites/default/files/resources/
QUNO%20India%20-%20plant%20variety%20protection%20-%202014.pdf]. 111
The PPVFR Section 39(1)(iii) 112
The PPVFR Section 39(2)
39
(4) Community Rights
Any person or group of persons, on behalf of any village or
local community in India, has the rights to file in any notified or any claim for
contribution to the evolution of any variety that has been registered under the Act.114
3.3.1.4 Terms of Protection
The period of validity of the certificate of registration is
initially 9 years for trees and vines (renewable possible for up to total of 18 years) and
initially 6 years for other crops (renewable possible for up to total of 15 years).115
For
extant varieties, the period is 15 years from the date of notification of that variety by
the Central Government under Section 5 of the Seeds Act, 1966.116
3.3.1.5 Benefit-Sharing
Another feature is the benefit-sharing. The PPVFR Act states
that commercial breeders have to share the benefits arising from the registration of the
variety with farmers or traditional rural communities who have contributed towards
development of the variety.117
Therefore, farmers that have played a role in
conservation and development of plants can be properly recognized and rewarded.118
The amount to be paid will be determined as the Authority*
deems fit depending on
the extent and nature of the use of genetic material of the claimant in the development
along with commercial utility and market demand of the variety.119
Such amounts will
113 Ministry of Agriculture, supra note 85.
114 The PPVFR Section 41(1)
115 The PPVFR Section 24(6)
116
Id.
117 Sujith Koonan, Developing country sui generis options: India’s sui generis system
of plant variety protection, 5 (2014), http://www.quno.org/sites/default/files/
resources/QUNO%20India%20-%20plant%20variety%20protection%20%202014.
pdf (last visited March 16, 2015). 118
See Anitha, supra note 78. *
The Protection of Plant Varieties and Farmers’ Rights Authority has been set up and
is responsible to administer the Act. 119
The PPVFR Section 26(5)
40
be deposited into the National Gene Fund and will be used to implement a benefit-
sharing mechanism including measures for conservation of PGRs.
3.3.1.6 The National Gene Fund
The National Gene Fund is proposed for supporting
conservation and sustainable use of genetic resources. It has been established to
receive the contributions from the benefit-sharing arising from breeders, the annual
fees payable by means of royalty, the compensation provided to the communities by
breeders and the contribution from any National and International organizations and
other sources.120
Accordingly, the Authority set up under the PPVFR Act is required
to publish the registered varieties and invite claims for benefit-sharing.121
The fund will be applied for disbursing shares to benefit
claimers, farmers engaged in conservation, and for compensation to village
communities who can prove that they have contributed to the selection and
preservation of materials used in the registered variety. Also, it can be used for
supporting conservation and sustainable use of genetic resources including in situ and
ex situ collections and for strengthening the capabilities of the Panchayat in carrying
out such conservation and sustainable use.122
3.3.1.7 Revocation
Under the PPVFR, there are certain circumstances in which
the protection that has been granted to a rights holder can be revoked.123
The
circumstances are as follows.124
120 The PPVFR Section 45
121 Anitha, supra note 78 at 12.
122 The PPVFR Section 45; Pratibha Brahmi, Sanjeev Saxena & B. S. Dhillon, The
Protection of Plant Varieties and Farmers’ Rights Act of India, 86 Current Science
398, 392-398 (2004). 123
Embassy of the United States, New Delhi, India, Introduction to Plant Varieties
and Farmers Rights, available at http://newdelhi.usembassy.gov/iprplantfarm.html
(last visited May 20, 2015).
41
• The grant of the certificate of registration has been
based on incorrect information furnished by the rights holder.
• The certificate of registration has been granted to a
person who is not eligible for protection.
• The rights holder has not provided the Registrar with
information, documents or materials as are required under the Act.
• The rights holder has not provided the Registrar with an
alternative denomination of the variety which could be used in case the
denomination of such variety provided by the rights holder is not permissible
for registration.
• The rights holder has not provided the necessary seeds
or propagation material to the person to whom a compulsory license has been
issued.
• The rights holder has not complied with the provisions
of the Act or the accompanying rules or regulations.
• The rights holder has not complied with the directions
of the Protection of Plant Varieties and Farmers’ Rights Authority.
• The grant of the certificate of registration is not in the
public interest.
3.3.1.8 Offences and Penalties
A person other than the breeder shall be held liable for
prosecution if he applies a denomination of a registered variety or applies false
denomination to a variety.125
The penalties imposed under the PPVFR Act are as
follows:
124 The PPVFR Section 34
125 Anupam Mishra, A. K Misra. & Nirmali Borthakur, Role of Organizations in
Protecting Plant Varieties and Farmers’ Rights, http://www.kiran.nic.in/pdf/
publications/ppv_barapani.pdf (last visited May 20, 2015).
42
(1) Penalty for applying false denomination: A person shall
be punishable with imprisonment for a term of 3 months minimum and a maximum of
2 years, or with a fine between Rs.50,000-500,000, or both depending on the severity
of the damage caused if they apply any false denominations to a variety or indicate
the false name of a country or place or false name and address of the breeder of the
registered variety.126
(2) Penalty for selling varieties to which false denomination
is applied: Any person who sells, or offers for sale, or has in his possession for sale
or for any purpose of trade or production of any variety to which false denomination
is applied, the punishment is a term of imprisonment from 6 months to 2 years, or
with a fine between Rs.50,000-500,000, or both.127
(3) Penalty for falsely representing a non-registered variety
as registered: Any person who falsely represents a variety or its propagating material
as registered, the punishment is a term of imprisonment from 6 months to 3 years, or
with a fine between Rs.100,000-500,000, or both.128
(4) Penalty for subsequent offence: A person who has been
convicted once for an offence under the Act and is again convicted such offence shall
face heavy punishment for every subsequent offence with imprisonment for a term of
1 to 3 years, or with a fine between Rs.200,000-2,000,000, or both.129
3.3.2 The Biological Diversity Act, 2002
India, as one of the parties to the CBD, recognizes the sovereign
rights of states to use its own biological resources by enacting the Biological
Diversity Act, 2002 (hereinafter “BDA”) as a sui generis system protecting TK
126 The PPVFR Section 70
127 The PPVFR Section 71
128 The PPVFR Section 72
129 The PPVFR Section 73
43
related to biological diversity. The BDA aims at the conservation of biological
resources and associated knowledge as well as facilitating access to them in a
sustainable manner with an equitable benefit-sharing system arising from such access
through a lawful process130
to protect India’s biodiversity and associated knowledge
against the use of individuals or organization without sharing of the benefits arising
from such use. In other words, it is to prevent bio-piracy.
3.3.2.1 Implementation of the BDA
The BDA provides for the establishment of 3 different
authorities to effectively implement the provisions and regulate access to biological
resources.131
(1) At the National level: The National Biodiversity Authority
The National Biodiversity Authority (NBA) is a statutory,
autonomous body that supervises and implements all matters relating to request for
access by foreigners, including non-resident Indians, institutions or companies and all
matters relating to the transfer of results of research to any foreigner.132
Furthermore,
the NBA performs facilitative, regulatory and advisory functions for the Central
Government of India on matters relating to the conservation of biodiversity.133
This is
to grant conservation and sustainable use of biological resources and to secure
equitable benefit-sharing and approval for seeking and/or using any form of IPRs
inside or outside India for inventions based on biological resources or associated
knowledge obtained from India.134
On behalf of the Government of India, The NBA
has also been given the authority to take any necessary measures to oppose granted
130 M. K. SATEESH, BIOETHICS AND BIOSAFETY 727 (I.K. International Publishing
House, 2008). 131
The Biological Diversity Act Section 2(c) 132
The BDA Section 3 and 4 133
The BDA Section 18(3) 134
The BDA Section 6 and 19
44
IPRs in any foreign country based on any biological resources or related knowledge
obtained from India.135
(2) At the State level: The State Biodiversity Boards
The State Biodiversity Boards (SBBs) operate at the state
level to deal with matters relating to access of any biological resource by Indians for
commercial purposes. Moreover, the SBBs focuses on advising the State
Governments, subject to any guidelines issued by the Central Government, on matters
relating to the conservation, sustainable use of biodiversity and equitable sharing of
benefits arising from the utilization of biological resources.136
(3) At the Local level: Biodiversity Management Committees
At the local level, the Biodiversity Management Committees
(BMCs) are constituted by every local body in their jurisdiction responsible for
promoting conservation, sustainable use and also documentation of biological
diversity and knowledge relating to biological diversity.137
One of the main functions
of BMC is to prepare People’s Biodiversity Registers*
of their respective areas in
consultation with the local people.138
This is an attempt to realize the biodiversity and
associated TK at local level which will facilitate the access and benefit-sharing arising
from the utilization of such resources.
135 The BDA Section 18(4)
136 The BDA Section 23
137 The BDA Section 41(1)
* PBR is a comprehensive data base recording people’s traditional knowledge and
insight of the status, uses, history, ongoing changes and forces driving these changes
on the biological diversity resources of their own localities. The information is critical
for conservation, sustainably monitoring of biological resources at local level. This
helps in identification of a beneficiary with whom benefits can be shared when an
ABS agreement becomes operational, available at http://asbb.gov.in/preparation.
html (last visited May 31, 2015). 138
Biological Diversity Rules, 2004 Rule 22 (6) states that “The main function of the
BMC is to prepare People’s Biodiversity Register in consultation with local people.
The Register shall contain comprehensive information on availability and knowledge
of local biological resources, their medicinal or any other use or any other traditional
knowledge associated with them.”
45
The BMCs would be consulted by the NBA and the SBBs on
matters related to the use of biological resources and associated knowledge within
their jurisdiction.139
In conclusion, the BDA is implemented through a three tier
decentralized system. The first is the NBA who is functioning at the national level,
followed by the SBBs at the state level and the BMCs at the local level such as
villages or districts.
3.3.2.2 Access to Biological Resources and Regulatory Approvals
The BDA has determined basic principles regarding the rights
of people to access biological resources in India by classifying people into 3
categories.
First, foreigners or non-resident Indian citizens, a body
corporate, association or organization not incorporated or registered in India, or
incorporated or registered in India but has any non-Indian participation in the sharing
of capital or management. The person or entity shall take the prior approval of the
NBA to access biological resources or associated knowledge.140
Second, all resident Indian citizens and entities made up of
them can access biological resources freely with only exception being commercial
use. In case of commercial use or survey, the person or the entity has to consult the
concerned SBB before such access.141
Third, the local people and the communities of
the area, including growers and cultivars of biodiversity, vaids and hakims (traditional
physicians) are exempt from prior approval or prior intimation.142
139
The BDA Section 41 140
The BDA Section 3(2); Approval Procedure provided for in the BDA Section
19(1) 141
The BDA Section 7 142
Id.
46
However, all persons or entities shall obtain prior approval
from the NBA before applying to obtain any IPR protection connected to the
biological resources and related knowledge obtained from India.143
This also applies
for any transfer of results of any research relating to biological resources and related
knowledge obtained from India for monetary consideration or to foreigners, non-
resident Indian citizens and entities.144
Fund
3.3.2.3 Access and Benefit-Sharing and the National Biodiversity
All approvals for access from the NBA will be in the form of
a written agreement between the NBA and the applicant145
in accordance with
mutually agreed terms and conditions between the applicant, the BMCs, and local
communities or benefit claimers.146
The Agreement will contain the terms and
conditions for access of resources147
aiming at an equitable share of benefits arising
from the utilization of the biological resources and knowledge. The NBA is
authorized to determine the benefit-sharing resulting from the use of biological
materials which include monetary benefits received as fees and royalties, grant of
joint ownerships of IPRs, transfer of technology, association of Indian Scientists in
R&D and setting up of venture capital funds among other deals.148
Monetary benefits will be deposited into the National
Biodiversity Fund149
which will be distributed to the stakeholders and will be used for
conservation and promotion of biological resources and socio-economic development
143 The BDA Section 6
144 The BDA Section 4
145 Yeshwanth Shenoy, National Conference on Biodiversity, Development and
Poverty Alleviation, May 22, 2010, An introduction to the Biological Diversity Act,
2002, 65 (2010), http://www.upsbdb.org/pdf/Souvenir2010/11.pdf (last visited March 20, 2015). 146
The BDA Section 21(1); the Biological Diversity Rules, 2004 Rule 14(5) 147
The Biological Diversity Rules, 2004 Rule 14(6) 148
The BDA Section 21(2) 149
The BDA Section 21(3)
47
of the areas accessed to obtain biological resources.150
However, in case that the
utilization of biological resources or related knowledge has been accessed from a
specific individual or groups or organizations, the NBA may deposit such benefits
directly to those individuals, groups or organizations in accordance with the terms of
Agreement.151
3.3.2.4 Contravention and Penalties
Every contravention of the provisions of the BDA is
punishable with imprisonment for a term up to 5 years, or with fines up to Rs.
1,000,000, or both. However, if the damage caused exceeds Rs. 1,000,000 such fine
may commensurate with the damage caused.152
Every contravention of any direction given or order made by
the Central Government, the State Government, the NBA or the SBBs for which no
punishment has been separately provided under the BDA, are punishable with fine up
to Rs. 100,000 and in case of a second or subsequent offence, with fine which may
extend to Rs. 200,000 and in the case of continuous contravention with additional fine
which may extend to Rs. 200,000 everyday during which the default continues.153
3.3.3 The Traditional Knowledge Digital Library
In the last few years, patents have been wrongly granted in TK
related to inventions which do not fulfill the requirement of novelty and inventive
steps compared to the relevant prior art.154
The practical obstacle was that patent
150 The BDA Section 27
151 The BDA Section 21(3)
152 The BDA Section 55
153 The BDA Section 56
154 CROP BREEDING AND BIOTECHNOLOGY 255 (C P Malik, Chitra Wadhwani &
Bhavneet Kaur ed., Pointer Publishers 2009).
48
examiners could not search relevant TK as prior art because Indian TK is limited and
exists only in local languages.155
In 2001, the Traditional Knowledge Digital Library (hereinafter
“TKDL”) was formally established. It is a collaborative project between the Council
of Scientific and Industrial Research (CSIR), Ministry of Science and Technology, the
Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy
(AYUSH), and Ministry of Health and Family Welfare, of India.156
The objective of
the TKDL is to protect the TK of India from exploitation through bio-piracy and
unpatentable inventions because the TKDL makes the prior art on TK available to
patent examiners.157
The TKDL makes Indian TK available by documenting it
electronically and classifying it using modern classification systems based on the
structure of International Patent Classification (IPC),158
also known as “the
Traditional Knowledge Resource Classification (TKRC).”159
The TKRC is a
structured classification consisting of sections, classes, subclasses, groups and
subgroups related to Indian TK such as medicinal plants, minerals, animal resources,
effects and diseases, etc. for facilitating the patent examiners in access of information
related to prior art before granting a patent in the area of TK.160
155
Id.
156 World Intellectual Property Organization, About the Traditional Knowledge
Digital Library, available at http://www.wipo.int/meetings/en/2011/wipo_tkdl_del_
11/about_tkdl.html (last visited March 21, 2015). 157
“Traditional Knowledge Digital Library,” available at http://en.wikipedia.org/
wiki/Traditional_Knowledge_Digital_Library (last visited March 21, 2015). 158
V.K. Gupta, Traditional Knowledge Digital Library, Paper presented at the Sub-
Regional Experts Meeting in Asia on Intangible Cultural Heritage: Safeguarding and Inventory-Making Methodologies, Bangkok, Thailand, 13-16 December 2005. 159
TKDL, supra note 157. 160
Traditional Knowledge Digital Library, FAQ, available at http://www.tkdl.res.
in/tkdl/langdefault/common/Faq.asp?GL=Eng (last visited March 21, 2015).
49
Moreover, the TKDL breaks language barriers and creates a bridge
between TK information existing in local languages and the patent examiners.161
It
breaks the Indian bindings of existing TK knowledge from local languages, for
example, Sanskrit, Urdu, Arabic, Persian, Tamil, etc. into 5 international languages
which are English, French, Spanish, German and Japanese in a patent application
format readily accessible and understandable to patent examiners.162
This is to make
TK understandable by patent examiners at International Patent Offices (IPOs) as to
prevent granting of wrong patents.
As a result, a significant impact has been realized. Pre-grant
oppositions are being filed at various IPOs, along with prior art evidences from
TKDL.163
As of now, more than 230 patent applications of the pharmaceutical
companies of the U.S., Great Britain, China etc. have either been set aside or
withdrawn or amended based on the prior art evidences present in the TKDL database
without any cost and in few weeks or months of time.164
IPOs across the world have also been interested in accessing to the
TKDL in order to grant patents correctly without any cost and little time-
consumption. At present, access of the TKDL is available to 9 IPOs under the TKDL
Access Agreement which has in-built safeguards on Non-disclosure to protect Indian
TK against misuse.165
As per the terms and conditions of the Agreement, examiners
of the patent office can utilize the TKDL for search and examination purposes only.
They cannot reveal the contents of the TKDL to third parties unless it is necessary for
the purpose of citation.166
Currently, the TKDL is proving to be an effective deterrent
161 CROP BREEDING AND BIOTECHNOLOGY, supra note 154.
162
Id.
163 Council of Scientific and Industrial Research [CSIR], Traditional Knowledge
Digital Library (TKDL), available at http://www.csir.res.in/External/Utilities/Frames/
career/main_page1.asp?a=tkdl_topframe.htm&b=tkdl_left.htm&c=..%2F..%2F..%2F
Heads%2FTKDL%2Fmain.htm (last visited June 24, 2015). 164
Id.
165
Id.
166
Id.
50
against bio-piracy and is being recognized as a global leader in the area of TK
protection.167
Figure 3.1: The Traditional Knowledge Digital Library
Courtesy of the Traditional Knowledge Digital Library
(Source: http://www.tkdl.res.in/tkdl/langdefault/Common/Home.asp?GL=Eng)
167
Id.
51
Table 3.1: Successful outcome against Bio-piracy related to traditional known medicinal plant using TKDL
Patent Office Status of patents
European Patent Office 86 patent applications withdrawn (2009-2015); 37 patents amended/
modified due to TKDL prior art evidence (2009-2015); 3 patents were
refused/rejected/cancelled by examiners or application was withdrawn by using TKDL
independently without submission of evidences by TKDL (2009-2013).
Canadian Intellectual Property Office 37 patent applications declared ‘dead’ (2011-2014).
Intellectual Property Australia 1 patent application withdrawn (2011); 3 patents amended/modified due to TKDL prior art
evidence (2011-2012).
United States Patent and Trademark Office 14 patents amended/modified due to TKDL prior art evidence (2011-2014); 11 patent claims
rejected by the examiners due to TKDL prior art evidence (application is under progress;
2012-2015); 5 patents where examiner rejected/cancelled the claims by utilizing TKDL
independently without submission of the evidences by TKDL (2012-2013).
United Kingdom Patent and Trademark Office 3 patent applications terminated (2011-2012).
Controller General of Patents, Designs and
Trademarks (CGPDM) – India
1 patent revoked (2012); 2 patents amended/modified due to TKDL prior art evidence
(2013); 15 patents were refused on the basis of controller’s decision (2012-2015); 12 patent
application was refused/rejected/cancelled by the examiner or application was withdrawn by
utilizing TKDL independently, without submission of evidences by TKDL (2012-2015).
Courtesy of Traditional Knowledge Digital Library
(Source: http://www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp)
52
3.3.4 The Patents (Amendment) Act, 2005 (Act No. 15 of 2005)
The patent system in India is governed by the Patents Act, 1970 as
amended by the Patents (Amendment) Act, 2005 (hereinafter “Patents Act of India”).
The latest amendment in the year 2005 was made in order to bring Indian patent law
in compliance with the TRIPS agreement.168
Under the Patents Act of India, an
invention is defined as “a new product or process involving an inventive step and
capable of industrial application.”169
3.3.4.1 Conditions for Protection
For an invention to be patentable, an invention is required to
meet the following patentability criteria;
(1) Novelty: An invention will be considered novel if an
invention or technology in respect of a product or process has not been anticipated by
publication in any document or used in the country or elsewhere in the world before
that date of filing of the patent application, i.e., the subject matter has not fallen in
public domain or that it does not form part of the state of the art.170
(2) Inventive Step: A patent application involves an inventive
step if the proposed invention involves technical advance as compared to existing
knowledge or having economic significance or both and that makes the invention not
obvious to a person skilled in the art, i.e., skilled in the subject matter of the patent
application.171
168
Embassy of the United States, New Delhi, Introduction to Patents, available at
http://newdelhi.usembassy.gov/iprpatents.html (last visited March 21, 2015). 169
The Patents (Amendment) Act of India, 2005 Section 2(1)(j) 170
The Patents Act of India Section 2(1)(l) 171
The Patents Act of India Section 2(1)(ja)
53
(3) Capable of Industrial Application: In relation to an
invention, capable of industrial application means that the subject matter of the
invention must be capable of being made or used in any kind of industry.172
(4) Not excluded from patentability: An invention must not fall
under the categories of inventions that are excluded from patentability under the
concerned jurisdiction of the Patents Act of India.173
172
The Patents Act of India Section 2(1)(ac) 173
The Patents Act of India Section 3 and 4
Section 3 “What are not inventions. The following are not inventions within the
meaning of this Act,—
(a) an invention which is frivolous or which claims anything obviously contrary
to well established natural laws;
(b) an invention the primary or intended use or commercial exploitation of which
could be contrary to public order or morality or which causes serious prejudice to
human, animal or plant life or health or to the environment;
(c) the mere discovery of a scientific principle or the formulation of an abstract
theory or discovery of any living thing or non-living substance occurring in nature;
(d) 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;
(e) a substance obtained by a mere admixture resulting only in the aggregation
of the properties of the components thereof or a process for producing such
substance;
(f) the mere arrangement or re-arrangement or duplication of known devices
each functioning independently of one another in a known way;
(g)..(omitted)
(h) a method of agriculture or horticulture;
(i) 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.
(j) plants and 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;
(k) a mathematical or business method or a computer program per se or
algorithms;
(l) a literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions;
(m) a mere scheme or rule or method of performing mental act or method of
playing game;
54
3.3.4.2 Rights granted under the Patents Act of India
A patent owner is given an exclusive right to prevent others
from making, using, selling, offering for sale or importing a process or products in
respect of which the patent has been granted.174
3.3.4.3 Terms of Protection
The term of patent in India is 20 years from the date of filing
the patent application, irrespective of whether it is filed with provisional or complete
specification.175
(n) a presentation of information;
(o) topography of integrated circuits;
(p) an invention which in effect, is traditional knowledge or which is an
aggregation or duplication of known properties of traditionally known component or
components.” 174
The Patents Act of India Section 48 175
The Patents Act of India Section 53(1)
55
CHAPTER 4
PROTECTION OF TRADITIONAL KNOWLEDGE AND
PLANT GENETIC RESOURCES IN THAILAND
4.1 The Problems of Bio-piracy in Thailand
4.1.1 Kwao Krua
The Thai herb Kwao Krua had been quite commonly known in
Thailand for its medicinal and cosmetic used for over 100 years.176
Its medicinal uses
had been documented in Thai writings as early as 1931 by a herbal medicine
practitioner named Luang Anusarn-Sunthorn.177
In more recent years, certain plant-
produced hormones have been discovered in the plant. These hormones have been
used in modern medicine to enhance male sexual performance, enlarge and firm
breasts, and firm the skin. Subsequently, a number of patents have been filed on
inventions that use extracts of Kwao Krua. For example, a company based in South
Korea holds a U.S. patent on an extract from Kwao Krua.178
The concern is that the steps for extraction disclosed in the patent do
not differ from the methods that practitioners of traditional Thai medicine have used
for nearly a century.179
Unfortunately, the primary concern is that the extract does not
appear to be new or non-obvious to the U.S. patent. Due to the grant of IP protection
in this traditionally used plant and its extract, indigenous peoples’ customs relating to
the plant’s ordinary production and use have been disturbed.180
176
Ryan D. Levy & Spencer Green, University of Miami Business Law Review,
Pharmaceuticals and Biopiracy: How the AIA May Inadvertently Reduce the
Misappropriation of Traditional Medicine, 407, 401-423 (2015), available at
http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1251&context=umblr
(last visited June 25, 2015). 177
DANIEL F. ROBINSON, CONFRONTING BIOPIRACY: CHALLENGES, CASES AND
INTERNATIONAL DEBATES 57 (Taylor&Francis 2010). 178
Ryan D. Levy & Spencer Green, supra note 176. 179
Id.
180
Id.
56
4.1.2 Plao Noi
Plao Noi is a local herb whose medicinal properties were recorded
on palm-leaf books in Thailand for centuries.181
Yet Sankyo Company, the second
largest pharmaceutical firm in Japan, was awarded a patent in Tokyo on this Thai
herbal plant. In 1975, a team of researchers form Sankyo Company and the
Department of Forestry collected samples of Plao Noi and brought the samples to the
lab.182
They extracted the ingredient called “Plaunotol” and applied for a patent.183
Later, the company cultivates Plao Noi and sells it in commercial drug called
“Kelnac-Plaunotol,” to treat ulcers.184
Sankyo Company’s earnings from Kelnac-
Plaunotol were estimated to be around $40 million in 1987185
but the company did not
provide any benefit-sharing back to Thailand or local people.
4.2 Protection of Traditional Knowledge in Thailand
Besides India, Thailand is one of the richest countries with TK relating to
genetic resources in the Southeast-Asian region which has also faced instances of bio-
piracy, for example, Kwao Krua and Plao Noi.186
As a result, there has been a socio-
political movement to recognize community rights and to protect TK. At that time, a
great variety of proposals have been debated to protect ethnobotanical knowledge,
traditional medicines, biological resources, traditional plant varieties, landraces,
herbs, folklore, cultural property, etc.187
181 DANIEL, supra note 177 at 63.
182 “Biopiracy, TRIPS and the Patenting of Asia’s Rice Bowl: A collective NGO
situationer on IPRs on rice,” available at http://www.grain.org/article/entries/27-
biopiracy-trips-and-the-patenting-of-asia-s-rice-bowl (last visited June 23, 2015). 183
Id.
184 DANIEL, supra note 177 at 63.
185 “Biopiracy, TRIPS and the Patenting of Asia’s Rice Bowl: A collective NGO
situationer on IPRs on rice,” supra note 182. 186
Panamas, supra note 5. 187
Jakkrit Kuanpoth, Protection of Traditional Knowledge in the Face of
Globalisation: Balancing Mechanism between CBD and TRIPS, 12 Thailand Law
Journal (2009), available at http://www.thailawforum.com/articles/Legal-Protection-
Of-Traditional-Knowledge.html (last visited July 26, 2015).
57
4.3 Laws related to the protection of Traditional Knowledge and Plant Genetic
Resources in Thailand
4.3.1 The Constitution of the Kingdom of Thailand B.E. 2540 (1997)
and B.E. 2550 (2007)*
The rights of TK under Thai law was granted in the Constitution of
the Kingdom of Thailand B.E. 2540 (1997) and B.E. 2550 (2007). The laws generally
affirmed the community rights, local community rights or traditional community
rights to conserve or restore their customs, local traditional knowledge, arts or good
culture of their community and the nation. They also participate in the management,
maintenance, preservation and exploitation of natural resources and the environment
including the biological diversity in a balanced, sustainable manner.188
For the rights of a person, the Constitution of the Kingdom of
Thailand B.E. 2540 (1997) and B.E. 2550 (2007) in conjunction with the State and
communities affirmed that the rights of a person to participate in the conservation,
preservation and exploitation of natural resources and biological diversity and in the
protection, promotion and preservation of the quality of the environment for usual and
consistent survival in the environment which is not hazardous to his or her health and
sanitary conditions, welfare or quality of life, shall be protected.189
Furthermore, they
set out the duty of every person to conserve local TK and conserve natural resources
and the environment as provided by law.190
The aforementioned has shown that the Constitution of the
Kingdom of Thailand B.E. 2540 (1997) and B.E. 2550 (2007) granted the rights of a
*
Currently, the Constitution of the Kingdom of Thailand B.E. 2540 (1997) and B.E.
2550 (2007) has already been abolished (as of July, 26, 2015). 188
The Constitution of the Kingdom of Thailand B.E. 2540 Article 46 and B.E. 2550
Article 66 189
The Constitution of the Kingdom of Thailand B.E. 2540 Article 56 and B.E. 2550
Article 67 190
The Constitution of the Kingdom of Thailand B.E. 2540 Article 79 and B.E. 2550
Article 73
58
person or a group of people related to customs, local traditional knowledge arts or
culture of their community. This is a good sign relating to the protection of TK in
Thailand as they empower a person or local communities to participate in the
protection, promotion, and preservation of their own TK. Also, they could be
guidelines to further develop national regulations relating to the protection of TK and
PGRs in Thailand. After all, these significant concepts are believed to be remained in
the new Constitution of the Kingdom of Thailand.
4.3.2 Thailand Plant Varieties Protection Act B.E. 2542 (1999)
Following the conclusion of the GATT negotiations in 1994, and
later, the creation of a multilateral trading system of the WTO in 1995, a minimum
standard for the protection of IPRs was established under the TRIPS agreement.
For plant variety protection, the TRIPS agreement gives signatory
countries the option to protect plant varieties in Article 27.3(b) that “members shall
provide for the protection of plant varieties either by patents or by an effective sui
generis system or by any combination thereof.” As a member, Thailand has been
required to carry out the laws and regulations conforming to the WTO and TRIPS
requirements. In 1999, the Plant Variety Protection Act B.E.2542 (1999) (hereinafter
“Thai PVP Act”) which adopts a sui generis regime for the protection of plant
varieties in Thailand has been introduced.
The Thai PVP Act has been designed to protect the interests of
related people in agricultural practices in 2 main functions; to protect the rights of
plant breeders in order to promote innovative plant breeding activities and to
recognize and protect the rights of farmers and local communities, including related
knowledge in respect of their participation in improving, conserving, and making use
of PGRs. Therefore, the protection of (1) new plant varieties; (2) extant varieties
which refer to local domestic plant varieties and general domestic plant and wild plant
59
varieties have been introduced under the Thai PVP Act to promote agricultural
development in the country.191
Under the Thai PVP Act, there shall be a Plant Variety Protection
Commission (hereinafter “Commission”) who have the power and duty to submit
recommendations to the Minister on the issuance of Ministerial Regulations and
Notifications under this Act to provide opinions or advice to the Minister in
prescribing regulations with regard to the studies, experimentation, research, breeding
or development of plant varieties from local domestic plant varieties, general
domestic plant varieties and wild plant varieties and to prescribe regulations with
regard to the management of the Plant Variety Protection Fund.192
4.3.2.1 Protection of the New Plant Varieties
The Thai PVP Act provides for the protection of new plant
varieties in Chapter III entitled “Protection of New Plant Varieties” (Section 12 - 42).
(1) Conditions for Protection
The Thai PVP Act defines a “plant variety” as “a plant
grouping of similar or identical genetic and botanical characteristics, with particular
features which are uniform, stable and distinct from other grouping in the same
species of plant and shall include trees the propagation of which is conducive to the
plant grouping of the aforesaid features.”
Under the Act, breeders of the new plant varieties can be
eligible for protection if their varieties fulfill the 4 criteria that are: novelty,
191 Pawarit Lertdhamtewe, Implementing the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement): A Case Study of Thailand’s Plant
Protection Regime, ANZSIL–SCIL Research Symposium on International
Economic Law, available at https://www.academia.edu/1205715/Implementing_
the_TRIPS_Agreement_A_Case_Study_of_Thailands_Plant_Protection_Regime (last
visited March 23, 2015). 192
Thailand Plant Varieties Protection Act B.E. 2542 (1999) Section 5 and 6
60
distinctiveness, uniformity and stability.193
Importantly, a new plant variety to which
protection is to be afforded must be a particular type of plant designated by the
Minister with the approval of the Commission.194
(2) Rights granted under the Thai PVP Act
Generally, the exclusive rights of plant breeders aim to
protect inventions from infringement by third parties. Specifically, it meant to reward
holders of new plant varieties for their intentions and contributions by providing an
incentive for the developed new plant varieties. The scope of the PBRs are protected
under the statutory provision provided that: “The right holder of a new plant variety
has the exclusive right to produce, sell or distribute in any manner, import, export or
possess for the purpose of any of the said acts the propagating material of the new
plant variety…”195
(3) Terms of Protection
The statutory provision under the Thai PVP Act determines
the duration of protection in which the protection will be terminated after a certain
period of time. This depends on the type of plant variety registered where tree
varieties have a specific term of 27 years of protection while other plant varieties have
a term of 12 or 17 years of protection depending on the type of the new plant
varieties.196
(4) Farmers’ Privilege
The Thai PVP Act does not recognize the right to farm-saved
seeds under farmers’ rights but the Act provides it as an exception to the breeders’
rights. Farmers are given the rights to cultivate or propagate protected new plant
varieties from the propagating material made by themselves, however, the Act
restricting the cultivated quantity to be three times of the quantity obtained in the case
193 The Thai PVP Act Section 11 and 12
194 The Thai PVP Act Section 14
195 The Thai PVP Act Section 33
196 The Thai PVP Act Section 31
61
where such variety is established as promoted plant variety.197
Also, it recognizes the
right of farmers to act relating to a protected variety for non-commercial purposes.198
4.3.2.2 Protection of the Extant Varieties
Apart from new plant varieties, the most significant feature of
the Thai PVP Act is the protection of traditional plant varieties and PGRs in order to
create special and differential (S&D) treatment in favor of farmers and local
communities.199
The Thai PVP Act divides extant varieties into two main categories:
(1) local domestic plant varieties and (2) general domestic plant and wild plant
varieties.
(1) Protection of the Local Domestic Plant Varieties
The legal protection offered for the local domestic plant
varieties represents a unique sui generis system by providing protection to existing
plant varieties found within Thai territory.200
It is being regarded as a success in
implementing the concept of farmers and local communities’ rights which has been
reflected in the policy of the CBD.201
Chapter IV of the Thai PVP Act “Protection of
Local Domestic Plant Varieties” (Section 43 to 51) recognizes the important role of
farmers and local communities as custodians and traditional crop cultivators.202
The Thai PVP Act considers a “local domestic plant variety”
as “a plant variety which exists only in a particular locality within the Kingdom and
has never been registered as a new plant variety and which is registered as a local
domestic plant variety under this Act.” And a “locality” is defined as “a group of
197 The Thai PVP Act Section 33(4)
198 The Thai PVP Act Section 33(5)
199 See Chapter IV of the Thai PVP Act (Section 43-51)
200 Pawarit Lertdhamtewe, Thailand’s plant protection regime: A case study in
implementing TRIPS, 7 Journal of intellectual property law & practice, 191, 186-
193 (2012). 201
See The CBD Article 8(j) 202
Karin Timmermans, Trips, CBD and Traditional medicines: Concepts and
questions, Report of an ASEAN Workshop on the TRIPS Agreement and
Traditional Medicine, Jakarta, 13-15 February 2001.
62
people residing and commonly inheriting and passing over culture continually and
registered under the Act.”
1.1 Conditions for Protection
An individual or a community that takes part in the
conservation or development of a plant variety may register their local domestic plant
variety. A plant variety capable of registration must be existing only in a particular
locality within Thailand and must not be registered as a new plant variety.203
When
registering a local domestic plant variety, the method of its conservation or
development, the landscape together with a concise map showing the boundaries of
the community and adjacent areas, as well as the list of members of the community
must be provided in the application.204
Even though a local domestic plant variety
need not to be novel, other eligibility thresholds of distinctiveness, uniformity, and
stability must still be satisfied.205
1.2 Rights granted under the Thai PVP Act
The protection provides exclusive rights to farmers and
local communities that conserve or develop their varieties by allowing them to
register local domestic plant varieties. After registration, the farmers’ group or local
communities, as the owners of the local domestic plant variety, becomes the rights
holder and can enjoy the exclusive rights to develop, study, research, sell, export or
distribute by any means of the propagating material;206
their rights are comparable to
breeders’ rights of the new plant varieties.207
1.3 Terms of Protection
The duration of protection is the same as the protection
granted to the new plant varieties. Tree varieties have a specific term of 27 years of
protection while other plant varieties have a term of 12 or 17 years of protection,
depending on the type of the new plant varieties. However, such terms may be
extended by 10 years each if they qualify the conditions required under this Act.208
203
The Thai PVP Act Section 43 and 45 204
The Thai PVP Act Section 44 205
The Thai PVP Act Section 11; See Pawarit, supra note 200. 206
The Thai PVP Act Section 47 207
Karin, supra note 202. 208
The Thai PVP Act Section 50
63
Varieties
(2) Protection of the General Domestic Plant and Wild Plant
Another outstanding feature of the Thai PVP Act can be
found in Chapter V “Protection of General Domestic Plant and Wild Plant Varieties”
(Section 52 and 53). It provides protection to both general domestic plant and wild
plant varieties automatically without registration.
The Thai PVP Act defines a “wild plant variety” as a “plant
variety, which currently exists or used to exist in the natural habitat and has not been
commonly cultivated”; while “general domestic plant variety” is defined as a “plant
variety originating or existing in the country and commonly exploited and shall
include a plant variety which is not a new plant variety, a local domestic plant variety
or a wild plant variety”. The significance of introducing the general domestic plant
and wild plant varieties is to strengthen farmers and local communities’ rights.209
Consequently, it is clear that the extension of this kind of extant variety protection is
to cover all plant varieties found within Thailand.210
(3) Access and Benefit-Sharing
The Thai PVP Act provides for 2 access and benefit-sharing
measures for commercial purposes of the local domestic plant varieties and of the
general domestic plant and wild plant varieties.
3.1 The Local Domestic Plant Varieties
The first measure applies to any person who collects,
procures or gathers protected local domestic plant varieties for the purposes of variety
development, education, or research for commercial interest. If this is the case, a
profit-sharing agreement is required. In establishing the agreement, the local
government organization, the farmers’ group or co-operative to which the certificate
of registration of the local domestic plant variety has been granted shall make the
agreement in the name of the community, provided that approval of the Commission
shall first be obtained.211
The benefits derived from such activity shall be distributed
209 Pawarit, supra note 200 at 192.
210 Pawarit, supra note 200 at 193.
211 The Thai PVP Act Section 48
64
as follows; 20 percent of the profits shall be allocated to the individuals who conserve
or develop the plant variety, 60 percent to the community as common revenue, and 20
percent to the local government organization or the farmers’ group that signs such
agreement.212
3.2 The General Domestic Plant and Wild Plant Varieties
Another access and benefit-sharing measure applies to
collectors of the general domestic plant and wild plant varieties for the purpose of
variety development, education, experiment or research for a commercial purpose. In
this case, a person who collects, procures or gathers general domestic plant varieties,
wild plant varieties or any part of such plant variety shall obtain permission from the
competent official*
and make the profit-sharing agreement.213
The profit-sharing agreement shall be considered and
negotiated between the applicant and the working group appointed by the Director-
General of the Department of Agriculture.214
The profits derived shall be remitted to
the Plant Varieties Protection Fund following the agreed terms in the benefit-sharing
agreement.215
For the use of study, experiment or research of general
domestic plant and wild plant varieties for a non-commercial purpose, it is required to
comply with the Regulation prescribed by the Commission.216
(4) The Plant Varieties Protection Fund
The Thai PVP Act also enables the establishment of the Plant
Variety Protection Fund. The income and royalties accruing from benefit-sharing
agreements and from the registration of plant varieties will be remitted to this fund.
212 The Thai PVP Act Section 49; Pawarit, supra note 200 at 192.
* The Thai PVP Act Section 3 states that “competent official” means “a person
appointed by the Minister for the execution of this Act” 213
The Thai PVP Act Section 52 214
Ministerial Regulation on Rules, Procedures and Conditions for collecting,
procuring or gathering general domestic plant varieties or wild plant varieties for the
purpose of variety development, education, experiment or research for commercial
interest and making a profit-sharing agreement B.E. 2553 (2010) Section 7 215
The Thai PVP Act Section 52 216
The Thai PVP Act Section 53
65
The fund then will be used for promoting plant breeding, research, biodiversity
conservation and development of plant varieties of local communities in the
country.217
4.3.2.3 Penalties
Every contravention of the provisions of the Thai PVP Act
are punishable with imprisonment for a term up to 2 years, or with fines up to 400,000
Baht, or both.218
Furthermore, any person who forges or intimates a mark or does any
act for the purpose of misleading other persons that a given plant is the protected plant
variety are punishable with imprisonment for a term of 6 months to 5 years and with
fines between 20,000-200,000 Baht.219
4.3.2.4 Thailand Plant Varieties Protection Act B.E. 2542 (1999)
and the International Union for the Protection of New Varieties of Plants
(UPOV)
With respect to protection of plant varieties, Article 27.3(b)
of the TRIPS agreement gives signatory countries the option to protect plant varieties
through patents, an effective sui generis system, or a combination of both. The term
‘effective sui generis system’ allows countries to avoid having to develop full IP laws
covering plant varieties. The UPOV system is recognized to be one, though not the
only means of such effective sui generis system.220
Compared to the earlier versions, UPOV 1991 provides the
highest level possible for the protection of PBRs and at the same time, diluting
217
ACCESSING BIODIVERSITY AND SHARING THE BENEFITS: LESSONS FROM
IMPLEMENTING THE CONVENTION ON BIOLOGICAL DIVERSITY 28 (Santiago
Carrizosa, Sthphen B. Brush, Brian D. Wright, & Patrick E. Mcguire, ed.,
MedienHaus Plump GmbH 2004). 218
See Chapter VIII of the Thai PVP Act (Section 63-69) 219
The Thai PVP Act Section 67 220
INTELLECTUAL PROPERTY & FREE TRADE AGREEMENTS 41 (Christopher Heath
& Anselm Kamperman Sanders ed., Bloomsby 2007).
66
farmers’ privileges and restricting farmers’ rights to save, reuse, exchange and sell
seeds. For example, Article 15.2 of UPOV 1991 prohibits farmers from using farm-
saved seeds without paying royalties to commercial breeders to use their new
varieties.221
Since a country is not required to be a member of UPOV to
meet the TRIPS agreement requirements, many countries have developed their own
sui generis law for the protection of plant varieties. Thailand has also resisted
ratifying UPOV 1991 or developing on it as the standard for its protection laws of
plant varieties. Rather Thailand has chosen to design and develop its own sui generis
law, the Thai PVP Act, aiming at promoting not only the creation of new plant
varieties but also the conservation and encouragement of agricultural practices within
the country.222
The Thai PVP Act protects PBRs and recognizes the rights of farmers
and local communities over their PGRs. It also adopts legal requirements such as PIC
and BS that allow individuals and communities to claim compensation for their
contribution to the resources.223
Continuously, there have been attempts from both the U.S.
and the EU to force Thailand to become a UPOV member.224
However, civil groups
and farmer networks, for example, BIOTHAI Foundation, and the Alternative
221
The UPOV 1991 Article 15 states that “The breeder’s right shall not extend to
(i) acts done privately and for non-commercial purposes,
(ii) acts done for experimental purposes and
(iii) acts done for the purpose of breeding other varieties, and, except where
the provisions of Article 14(5) apply, acts referred to in Article 14(1) to Article
14(4) in respect of such other varieties.
Notwithstanding Article 14, each Contracting Party may, within reasonable
limits and subject to the safeguarding of the legitimate interests of the breeder,
restrict the breeder’s right in relation to any variety in order to permit farmers to use
for propagating purposes, on their own holdings, the product of the harvest which
they have obtained by planting, on their own holdings, the protected variety or a
variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii).” 222
INTELLECTUAL PROPERTY & FREE TRADE AGREEMENTS, supra note 220. 223
See Id. 224
See EU trade pact ‘risks surge in seed prices’: Experts say Thai farmers will fall
deeper into debt, Nov. 28, 2012, available at http://www.bangkokpost.com/print/
323402/ (last visited June 25, 2015).
67
Agriculture Network, Civil Society Organizations in Thailand and the FTA Watch,
have opposed the ratification of the UPOV 1991 since becoming a party to this
Convention would have an impact on the small scale farmers and have eventually the
entire country would be at stake. The reasons for opposition are given as follows;
“1. It will withdraw the rights of the farmers to keep,
conserve and exchange genetic materials of plants, which are natural rights of small-
scale farmers, recognized in article 66 of the Thai Constitution 2007.
2. It will destroy the mechanisms for access and benefit
sharing under the Plant Varieties Protection Act, 1999 which is a law conducted on
the basis of the Convention on Biological Diversity. The amendment of Thai laws to
make them consistent with UPOV 1991 would be seriously detrimental to the
effective protection of our local plant varieties and would indirectly support bio-
piracy.
3. There are many studies which have reported that joining
UPOV will have an impact on the utilization of genetic materials by small scale plant
breeders, community enterprise and would facilitate the increasing monopolization of
the giant seed companies.
4. From the studies in Thailand, it has been found that the
small-scale farmers would face increased costs in buying seeds of 2-6 times higher
than the present.
The intellectual property laws in each country should be
consistent with the context of development and bring about benefit to the majority, as
well as sustainable development in that particular country...”225
According to the UPOV 1991, protection shall be extended to
all plant varieties. Further, it has made the farmers’ exemption optional and allowed
each Member State to decide whether or not to extend such rights as a matter of
225
Letter to the Chairman of International Convention for the Protection of New
Varieties of Plants UPOV 1991 (Nov. 18, 2013).
68
domestic law.226
As a result, farmers’ rights to save, use, exchange, or sell farm-saved
seeds have been constrained. Such a monopoly right will adversely affect the food and
agricultural sectors and especially impact the poorer farmers in particular due to the
removal of their rights to save and exchange seeds which is a common practice of
farmers’ communities.227
Furthermore, Thailand would be required to extend the
period of protection of new plant varieties from 12 to 25 years.
Therefore, the UPOV system would impose the mandatory
components of the plant variety protection and restrain Thailand’s sovereign rights
over its biological resources and its ability to regulate access to the plant varieties. As
a result, Thailand’s attempt to balance IP protection with maintaining an alternative
rights system would be reduced accordingly.228
226 The UPOV 1991 Article 15.2
227 INTELLECTUAL PROPERTY & FREE TRADE AGREEMENTS, supra note 220.
228 See Id.
69
Table 4.1: Comparison of Plant Variety Protection Regime – UPOV 1991, the Indian PPVFR Act and the Thai PVP Act
UPOV 1991 Indian PPVFR 2001 Thai PVP Act 1999
Protection
coverage
At the latest by the expiration of 10 years
from which the contracting Party becomes
bound by the Convention, the PVP law
should apply to plant varieties of all
genera and species.
Plant varieties of genera and species as specified
by the government. Farmer varieties, extant
varieties.
Plant varieties as designated by the Minister,
with the approval of the Commission. Local
domestic plant varieties, general domestic plant
and wild plant varieties.
Requirements Novelty (in trade), distinctness,
uniformity, stability (DUS)
Duration Min. 20 years from issue
Min. 25 years from issue for vines and
trees
Novelty (in trade), distinctness, uniformity, and
stability (DUS)
Farmer and extant varieties do not have to fulfill
the requirement of novelty.
Min. 15 years from issue
Min. 18 years from issue for vines and trees
Novelty (in trade), distinctness, uniformity, and
stability (DUS)
Local domestic plant varieties do not have to
fulfill the requirement of novelty.
General domestic plant and wild plant varieties
are protected automatically without registration.
12 or 17 years from issue
27 years from issue for tree varieties
Such terms for local domestic plant varieties may
be extended for each of 10 years if it qualifies
the conditions.
Protection
scope
Minimum scope: producing, conditioning,
offering for sale, selling or other
marketing, exporting, importing or
stocking for purposes of propagating
material of the variety. Plus, acts in
relation to harvested material if obtained
through an unauthorized use of
propagating material and if the breeder
has had no reasonable opportunity to
exercise his right.
These rights do not extend to acts done (i)
privately and for non-commercial
purposes; (ii) for experimental purposes.
To produce, sell, market, distribute, import or
export the variety
These rights do not extend to acts done for
experiment or research.
To produce, sell, distribute, import, export or
possess the propagating material
These rights do not extend to acts done for
education, study, experiment or research.
70
UPOV 1991 Indian PPVFR 2001 Thai PVP Act 1999
Breeders’
exemption
Farmers’
right to save,
exchange and
sell seeds
Yes. But certain restrictions apply. E.g.,
EDVs cannot be exploited without the
permission of the holder of rights in the
protected initial variety.
EDV refers to varieties that are
predominantly derived from the protected
variety and retain the essential
characteristics.
There is an optional exception to the
breeders’ right, to be defined in national
law, “within reasonable limits and subject
to the safeguarding of the legitimate
interests of the breeder, […] in order to
permit farmers to use for propagating
purposes, on their own holdings, the
product of the harvested which they have
obtained by planting, on their own
holdings, the protected variety.”
Yes. Breeders’ authorization is not required as an
initial source of variation for purposes of creating
other varieties or for the marketing of such
varieties. Authorization is only required where use
of the protected variety is necessary for the
commercial production of a new variety. But it
also provides for registration of EDVs. (EDVs
cannot be exploited without the permission of the
holder of rights in the protected initial variety.)
A farmer shall be deemed to be entitled to save,
use, sow, resow, exchange, share or sell his farm
produce including seed of a protected variety in
the same manner as he was entitled before the coming into force of the Act. Provided that the
farmer shall not be entitled to sell branded seed of
a protected variety.
In addition, the PPVFR Act recognizes other
farmers’ rights such as:
-farmers’ contribution to be recognized and
rewarded for engaging in conservation and
improvement of genetic resources;
-farmers entitled to compensation if the protected
variety fails to perform as claimed by the breeder;
- farmers not liable to pay fees in any proceedings; - farmers cannot be prosecuted for infringement of
rights specified in the Act if unaware of the
existence of a PVP right.
Yes. The exclusive right over a new plant variety
shall not apply if (i) the act without an intention
to use it as propagating material; (ii) the act
commited in good faith; (iii) the act for non-
commercial purpose.
A farmer may cultivate or propagate a protected
new plant variety from the propagating material
made by himself. Furthermore, farmers residing
and commonly inheriting and passing over
culture continually, who takes part in the
conservation or development of the plant variety
may register as a community. Afterwards, such
community may request for initiating an
application for registration of the local domestic
plant variety in the name of such community
provide that such plant variety must exist in
particular locality.
Courtesy of Owing Seeds
(Source: https://www.evb.ch/fileadmin/files/documents/Saatgut/2014_07_10_Owning_Seed_-_Accessing_Food_report_def.pdf)
71
4.3.3 The Thai Traditional Medicine Intelligence Act B.E. 2542 (1999)
Medical knowledge has been discovered and used by indigenous
people for over a thousand years. It has been informally transmitted from one
generation to another and has become TK that is valuable to the local culture and
communities. Such TK, particularly traditional medicine about plants with the
potential to treat diseases, has played an important role in the world’s human health
care. According to the record, almost 80% of the world population depends on
traditional medicine for their primary health care.229
However, the protection of
traditional medicine in the view against bio-piracy or misappropriation has only just
begun in the past few decades.230
In 1999, the Thai Traditional Medicine Intelligence Act has been
established as a sui generis regime for protection of traditional Thai medicinal
intelligence which is considered as part of TK.231
It promotes and protects Thai
traditional medicine and related knowledge and also manages access to TK and
biological resources in herbal medicine.
4.3.3.1 Protection of Thai Traditional Medicine Intelligence
The Act specifically protects the traditional formulas of
indigenous Thai drugs and the texts on traditional Thai medicine.232
“Text on
traditional Thai medicine” is defined as “the technical knowledge concerned with
traditional Thai medicine which has been written or recorded in Thai books, palm
229 สชาดา เจรญวรยะธรรม, การค มครองผ ทรงส ทธ และส ทธ ของผ ทรงส ทธ ในภ ม ปญญาทองถ น(2556) (วทยานพนธปรญญานตศาสตรมหาบ ณฑต คณะนตศาสตร สถาบ นบ ณฑตพ ฒนบรหารศาสตร) (Suchada Charoenviriyatham, Protection of person entitled and the rights of
ownership in traditional knowledge (2013) (LL.M. thesis, National Institute of
Development Administration)). 230
Panamas, supra note 5. 231
Chavalit Uttasart, The Relevance of Traditional Knowledge to Intellectual
Property Law, https://www.aippi.org/download/commitees/232/GR232thailand.pdf
(last visited June 27, 2015). 232
The Thai Traditional Medicine Intelligence Act Section 14
72
leaf, stone inscription or other materials or that have not been recorded but passed on
from generation to generation” and “Formula on traditional Thai drugs” is defined as
“a formula stated as the production process and ingredients which contain Thai
traditional drugs, no matter what form the ingredients are.”
In general, “Traditional Thai medicinal intelligence” means
“the basic knowledge and capability concerned with traditional Thai medicine” and
“Traditional Thai medicine” means “the medicinal procedures concerned with
examination, diagnosis, therapy, treatment or prevention of, or promotion and
rehabilitation of the health of humans or animals, obstetrics, traditional Thai
massage, and also includes the production of traditional Thai drugs and the invention
of medical devices, on the basis of knowledge or text that has been passed on from
generation to generation”.
The Act separates traditional medicines into medicinal herbs
and traditional formulas. The traditional formulas are further divided into 3
categories: (i) the national formula, (ii) general formula, and (iii) personal formula.233
(1) The National formula: is a formula provides significant
benefits or has special medical value or crucial for human health.234
The Ministry of
Public Health has the authority to announce a certain formula of traditional Thai
medicine as the national formula with the rights over such formula belonging to the
State.235
Access to the National Formula
The Act determines that, after the announcement, the use of
the national formula for commercial benefits including the production of drugs or
research and development of new formulas are subject to the permission of the
Government along with the determination of payment fees and remunerations for
233
The Thai Traditional Medicine Intelligence Act Section 16 234
INTELLECTUAL PROPERTY AND HUMAN DEVELOPMENT: CURRENT TRENDS AND
FUTURE SCENARIOS 376 (Tzen Wong & Graham Dutfield ed., Cambridge University
2011). 235
The Thai Traditional Medicine Intelligence Act Section 17
73
making use of the formulas.236
A person using national formulas for commercial
purposes without authorization is subject to criminal sanctions. Furthermore, the
registration for protection of IPRs on the national formulas is prohibited.237
(2) General formula: is a formula or knowledge which already
exists in the public domain and is free for use by anyone.238
This includes traditional
medicinal knowledge that has been widely used and is widely available as well as the
formula of which its IP protection has expired.
(3) Personal or private formula: is a formula that has not been
revealed to public and is not the national formula. It can be registered by an inventor,
developer, or an inheritor of the formula.239
Applications for registration may be made
by the inventor or developer of the formula or by the person who inherited the
formula from the inventor or developer.240
3.1 Rights granted under the Act
After registration, the Act grants exclusive rights by
allowing the rights holder to use the formula for research and sales and distribution of
any product improved, developed or manufactured using the registered formula.241
However, there are some exceptions to the exclusive rights, for example, the use for
studies, research or the production of drugs for household use or by State hospitals.
3.2 Terms of Protection
The terms of protection for the exclusive rights of the
owner over a registered formula continue throughout the lifetime of the owner and
remains effective for another 50 years thereafter.242
236
The Thai Traditional Medicine Intelligence Act Section 19; See Karin, supra note
202. 237
The Thai Traditional Medicine Intelligence Act Section 22 238
The Thai Traditional Medicine Intelligence Act Section 18 239
The Thai Traditional Medicine Intelligence Act Section 21 240
Karin, supra note 202. 241
The Thai Traditional Medicine Intelligence Act Section 34 242
The Thai Traditional Medicine Intelligence Act Section 33
74
(4) Protection of Herbs
The Act also provides the protection of herbs for sustainable
conservation and utilization of medicinal plants by authorizing the Minister, with the
advice of the Committee, to issue a Notification specifying herbs that are valuable for
study and research, have economic significance, or may become extinct as controlled
herbs.243
When an herb is notified as a control herb, permission from the licensing
authority is required in order to obtain any management activities involving the
controlled herb except for research done by State agencies.244
Otherwise, no person
shall research/export such herbs or sell/transform them for commercial purposes.245
4.3.3.2 Funding on Traditional Thai Medicine Intelligence
Along with the protection and promotion of Traditional Thai
Medicinal Intelligence, the Act establishes the Fund on Traditional Thai Medicinal
Intelligence as an account for expenses related to the works on conservation,
promotion and development of intelligence on traditional Thai medicine. The income
of the Fund would mainly come from State subsidies and the private sector.246
Thus,
the Act does not consider the funds earned to be remitted to the Ministry of Finance.
The Office of the Permanent Secretary, Ministry of Public Health is responsible for
maintaining the money and property of the fund. Nevertheless, the management of
benefits and use of money in the fund shall be in accordance with the rules prescribed
by the Committee with the approval of the Ministry of Finance.
4.3.3.3 Penalties
Every contravention of the provisions is punishable with
imprisonment for a term up to 2 years, or with fines up to 40,000 Baht, or both.247
243 The Thai Traditional Medicine Intelligence Act Section 44
244 The Thai Traditional Medicine Intelligence Act Section 48
245 The Thai Traditional Medicine Intelligence Act Section 46
246 INTELLECTUAL PROPERTY AND HUMAN DEVELOPMENT: CURRENT TRENDS AND
FUTURE SCENARIOS, supra note 234 at 378. 247
See The Thai Traditional Medicine Intelligence Act Chapter 7
75
4.3.4 The Patent Act B.E.2522 (1979)
The Patent Act B.E.2522 (1979) was first introduced in 1979 as the
country’s first patent law to ensure the protection of the right of patentees with regard
to their invention and also to promote development of technology in Thailand as well
as activities involving invention of new products or processes.248
The Patent Act B.E.
2522 (1979) was amended by Patent Act B.E.2535 (1992) and Patent Act B.E.2542
(1999) (hereinafter “Thai Patent Act”).
The Thai Patent Act generally defines “invention” as “any
innovation or invention which creates a new product or process, or any improvement
of a known product or process.” that is to say the Act aims at protecting an inventor’s
idea and such idea must provide a practical solution to a particular problem in some
area of technology.249
The Act also contains the definition of the “process” as “any
method, art or process of producing, maintaining or improving the quality of a
product, including the application of such process.”250
Thailand has 3 types of patent protection available under the Thai
Patent Act which are; an invention patent, a design patent, and a petty patent.
4.3.4.1 An Invention Patent
(1) Conditions for Protection
Basically, patent protection in Thailand can be obtained either
as a product or a process patent. Furthermore, the Thai Patent Act stipulates 3
conditions to be satisfied that it must be new, involves an inventive step and is
capable of industrial application.251
248
Thailand Law, “Basics of Thai Patent Act,” available at http://www.thailandlaw.
org/basics-of-thai-patent-act.html (last visited June 25, 2015). 249
Jakkrit Kuanpoth, Major issues in the Thai patent system, available at http://www.thailawforum.com/articles/jakpat1.html (last visited June 25, 2015). 250
The Thai Patent Act Section 3 251
The Thai Patent Act Section 5
76
251.1 Novel
The requirement of novelty is defined in accordance with
the U.S. law; “the invention may neither be disclosed (known or used) domestically in
Thailand nor be described in a publication anywhere in the world.”252
According to
the Thai Patent Act, an invention is considered new if it does not form part of the state
of the art.253
251.2 Inventive step
When the requirement of novelty is satisfied, the
inventive step is a further condition that needs to be fulfilled. An inventive step is
focused on qualitative distinction of the claimed invention and the existing inventions
in the same field.254
An invention shall be deemed to involve an inventive step if it is
not technically or practically obvious to a person ordinarily skilled in the art.*
252 INTELLECTUAL PROPERTY IN ASIA: LAW, ECONOMICS, HISTORY AND POLITICS
306 (Paul Goldstein & Joseph Straus ed., Springer 2009). 253
The Thai Patent Act Section 6 states that:
“An invention is new if it does not form part of the state of the art.
The state of art also includes any of the following inventions:
(1) an invention which was widely known or used by others in the country
before the date of application for the patent;
(2) an invention the subject matter of which was described in a document or
printed publication, displayed or otherwise disclosed to the public, in this or a foreign
country before the date of the application for a patent;
(3) an invention for which a patent or petty patent was granted in this or a
foreign country before the date of application;
(4) an invention for which a patent or petty patent was applied in a foreign
country more than eighteen months before the date of the application and a patent or
petty patent has not been granted for such invention;
(5) an invention for which a patent or petty patent was applied for in this or a
foreign country and the application was published before the date of application.
A disclosure which was due to, or made in consequence of, the subject matter
having been obtained unlawfully, or a disclosure which was made by the inventor, or
made in consequence of, the inventor displaying the invention at an international
exhibition or an official exhibition if such disclosure was done within twelve months
before the filing of an application for the patent, shall not be deemed to be a
disclosure under subsection (2) above.” 254
Jakkrit, supra note 249. *
A person ordinarily skilled in the art may be described as a man or a team of persons
who is reasonably skillful and familiar with the field of the claimed invention. The
skilled person must be able to know the development in the field by his original
77
1.3 Industrial Application
An invention deems to be capable of industrial
application if it can be made or used in any kind of industry, including handcrafts,
agriculture and commerce.255
In other words, the invention will be regarded as
capable of industrial application if it is useful in practice.
(2) Rights granted under the Thai Patent Act
The protection grants an absolute monopoly right on the
patentee by giving an exclusive right to produce, use, sell, posses for sale, offer for
sale or import the patented product.256
from the filing date.
(3) Terms of Protection
An invention patent provides a 20-year term of protection
4.3.4.2 A Design Patent
A design patent or an industrial design aims to protect the
ornamental aspects or aesthetics of an article, and includes features pertaining to the
shape, configuration or pattern which is applied to an article by an industrial process,
which are features of the finished article.257
There are 2 fundamental requirements to obtain a design
patent protection as follows: a design must be new and must be capable of industrial
knowledge or his capability to search for it, but he does not have an innovative
capacity as to alleged invention. [Jakkrit, supra note 249]. 255
ASEAN Intellectual Property Association, IP Protection Thailand, available at
http://www.aseanipa.org/index.php/members/thailand1/197-ipguidesthailand/562-ip-
protection-thailand (last visited June 26, 2015). 256
The Thai Patent Act Section 36(1) 257
ASEAN Intellectual Property Association, supra note 255.
78
application.258
The term of protection of a design patent is 10 years from the date that
the application is filed in Thailand.259
4.3.4.3 A Petty Patent
A petty patent offers another alternative to patent for an
invention. To be eligible for a petty patent, an invention must be new and capable of
industrial application, but it does not have to possess a strong inventive step.260
The
term of protection for a petty patent is 6 years from the date that the application is
filed in Thailand and may be extended for 2 periods, each period shall be valid for 2
years261
(maximum protection is 10 years).
4.3.5 The Thai Traditional Knowledge Protection Act B.E…
In Thailand, about 10 years ago, there has been a socio-political
movement to recognize community rights and to protect TK.262
Also, there has been
an attempt to push forward the legislation of a sui generis law for protection of the
TK, expression of folklore and genetic resources. The Department of Intellectual
Property, Ministry of Commerce (hereinafter “DIP”) is the responsible government
agency that has endeavored to draft the law to cover all of Thai TK.263
One of the main challenges for legislating a sui generis law
protecting Thai TK is designing a protection system covering all areas of TK since the
issue of TK is dynamic and relates to a wide range of subject areas. It contains
plentiful knowledge resulting from creativity and constant improvements that have
been used and passed on from generation to generation over a long period of time.
258 The Thai Patent Act Section 56
259 The Thai Patent Act Section 62
260 The Thai Patent Act Section 65bis
261 The Thai Patent Act Section 65septies
262 Karin, supra note 202.
263 Panamas, supra note 5.
79
In the sense of the DIP, TK includes local cultural arts (indigenous
or local performances, crafting, manual workmanships and other significant native
traditions), traditional or native nutrition (native foods and beverages), traditional
medicine (formulae and texts on traditional medicine, medicinal herbs and medicinal
knowledge derived from traditional practitioners) and traditional agriculture
(traditional knowledge in agriculture, such as agricultural devices, local technology
for harvesting and native pesticide control).264
The expression of folklore included
artistic, literary, music, manual work and ritual while the genetic resources include
plants, animals and micro-organisms.265
Another obstacle for the drafting of legislation on the protection of
TK in Thailand is the areas to be protected are involved with several government
agencies and some agencies may lack the understanding of the IP and TK protection.
Thus, since the meetings of the Focus Group of the Government agencies, NGOs and
related agencies in Thailand on 2nd and 26th May B.E. 2549 (2006) have been to
work on the drafting of the Thai Traditional Knowledge Protection Act B.E…
concerning the protection of the Thai TK but has yet to be developed as appropriately
as it should.266
Referring to the Focus Group meeting, in order to be successful in
drafting a sui generis law for protection of TK in Thailand, the research of Thai TK
shall be divided into 2 different research projects.267
The first project is the study of a
conceptual framework of Thai TK and other case studies relating to Thai TK. This
project would be mostly based on documentary research to study the definition,
classification and most importantly, the protection of TK in different countries
including PIC, MAT and BS principles and also to study the existing laws for
protection of particular TK in Thailand. The second project is the fieldwork study. At
264
Id.
265
Id.
266
Id.
267 Focus Group meeting of the Government agencies, NGOs and related agencies in
Thailand on 22nd
August B.E. 2550 (2007) on drafting of the Thai Traditional
Knowledge Protection Act B.E…
80
this stage, the results of study from the first project will be presented to the Focus
Groups for discussion.
In addition, the definition and scope of Thai TK to be protected
shall be clearly express in the Act. However, such an established definition should
include all TK within Thailand while omitting any TK under other existing laws.
Furthermore, there has been an aspect that Thai TK should be
separated into 2 types; national knowledge and local knowledge.268
• National knowledge shall be any knowledge that is generally
used in Thailand. The government shall have authority to announce a certain
national knowledge without the need of registration, however the notification
of such knowledge for database recordation is required.
• Local knowledge shall be the knowledge existing in a particular
locality within Thailand which shall be registered under that Act in order to
obtain the protection.
Lastly, the PIC, MAT and BS with the rights of local communities
to participate in negotiating the benefits-sharing and following up on the use of Thai
TK shall be included in the Act in order to provide effective protection with respect to
local communities who own the particular knowledge.
In 2007, the draft regulation on the Thai Traditional Knowledge
Protection Act B.E… has been disclosed aiming at protecting Thai TK from
unlawfully exploitation and preventing the use of TK for commercial purposes
without equitable share of benefits to the owner.269
Later, the DIP together with the
Focus Group organized the official conferences on drafting the law for the protection
268
Id.
269 The draft of the promotion of the Thai Traditional Knowledge Protection Act
B.E…., http://ip.hrdi.or.th/(X(1)S(rxeps4x1h0i3ouindtcwncgy))/download/PRB/09.
pdf (last visited May 25, 2015).
81
of Thai TK.270
Unfortunately, these issues seemed to take a rather long time and were
unlikely to be finalized within the foreseeable future. Therefore, currently, Thai TK is
still spread around the country without specific laws protecting such knowledge.
At the present moment, only Thai PGRs and traditional medicine
are the TK or Thai local intelligence that has been protected by sui generis laws
which are the Thailand Plant Varieties Protection Act B.E. 2542 (1999) and the
Protection and Promotion of Thai Traditional Medicine Intelligence B.E. 2542 (1999).
4.4 Comparison of Protection of Traditional Knowledge and Plant Genetic
Resources between India and Thailand
4.4.1 TK and PGRs Management on Access and Benefit-Sharing
In the recent past, the significance and usefulness of TK and PGRs
for the development of new product has been increasingly emphasized due to the fact
that TK and PGRs has the potential of being transformed into commercial benefits,
providing useful leads for development of product and process for the benefit of
mankind. They can be used in many areas, including crop protection, drug
development, the production of specialized chemicals, or in industrial processing.271
The valuable leads provided by existing TK save time, money and investment of
modern biotechnology in a research and product development.272
However, TK and PGRs are being used without the authorization of
the creators and holders of TK without legitimate control and proper share of
270 รายงานฉบบสมบ รณ โครงการยกรางพระราชบญญต ค มครองภ ม ปญญาทองถ นไทยพ .ศ. … (Complete Report on drafting of the Thai Traditional Knowledge Protection Act
B.E… Project), available at https://www.ipthailand.go.th/index.php?option=com_
docman&view=docman&Itemid=369 (last visited June 26, 2015). 271
Department of the Environment, Australian Government, The Nagoya Protocol -
Convention on Biological Diversity, available at http://www.environment.gov.au/
topics/science-and-research/australias-biological-resources/nagoya-protocol-conven
tion-biological (last visited April 11, 2015). 272
Vishwas, supra note 12.
82
benefits.273
Therefore, finding practical methods to control and share the benefits
occurring from the use of TK and PGRs has been of particular concern to countries
rich in biodiversity including India and Thailand.
4.4.1.1 Accessing TK and PGRs
The BDA of India established a three-tiered structure for
implementing its provisions; the NBA, the SBBs and the BMCs which are
respectively at the national level, state level and local level institutions for
implementing the Act.274
Each of the BMCs will prepare the People’s Biodiversity
Register which contains information about the biological resources and associated
knowledge at a local level and will help identify where the biological resources are
from and control access where the benefits will be provided to the local biodiversity
fund maintained by BMCs.275
This institutional structure gives opportunities to local
communities to participate in managing their own biological resources to regulate the
exploitation of the biological resources in India.
On the other hand, the Thai PVP Act provides that accessing
a local domestic plant variety for commercial interest requires authorization from the
local government organizations, farmers’ group or a co-operative to which the
certificate of registration of the local domestic plant variety is granted, provided that
approval of the Commission shall be first obtained. While, accessing general domestic
plant and wild plant varieties for commercial interest requires the permission from the
competent official.
273
Id.
274 Research and Information System for Developing Countries India Habitat Centre,
“National Study on ABS Implementation in India” Commissioned by the ABS
Capacity Development Initiative in collaboration with the Government of India,
available at http://www.abs-initiative.info/fileadmin/media/Knowledge_Center/
Pulications/ABS_Dialogue_042014/National_study_on_ABS_implementation_in_Ind
ia_20140716.pdf (last visited April 18, 2015). 275
National Biodiversity Authority, FAQ, available at http://nbaindia.org/content/19/
16/1/faq.html (last visited April 12, 2015).
83
4.4.1.2 Benefit-Sharing
The BDA covers all practices related to access and benefit-sharing
of genetic resources and associated knowledge including accessing process and
procedures, restriction of access, terms and conditions for ensuring equitable share of
benefits and procedure to revoke agreements. According to the BDA, the NBA has
the full authority to check for misappropriation of its biological resources and
discharge all decisions pertaining access and benefit-sharing including PIC processes,
approval for access and transfer of biological resources and scientific research results,
fixing criteria for benefit- sharing, and several other matters related to access and
benefit-sharing.276
While granting approval for access, the NBA will impose terms and
conditions to secure equitable sharing of benefits and will establish a guideline with
the specific details of the benefit-sharing formula in an official gazette on a case-to-
case basis.277
However, it also decentralizes. The time period and method of benefits
to be shared will be decided based on MAT and conditions between the applicant, the
BMCs, and relevant stakeholders including local communities who own specific
biological resources and related knowledge. This creates bargaining power for local
communities who own specific biological resources and promotes participation of
local communities in access and sustainable use pertaining to biological resources and
equitable sharing of benefits.
The monetary benefits will be deposited in the National Biodiversity
Fund which will be used for preservation, conservation and development of areas. In
the case that the utilization of biological resources or related knowledge was accessed
from a specific individual or groups or organizations, the benefits may be provided
directly to those individuals or groups. Moreover, if the applicant fails to comply with
276 K. Venkataraman, Access and benefit sharing and the Biological Diversity Act of
India: A progress report, 10 Asian Biotechnology and Development Review, 69-80
(2008). 277
Id.
84
the conditions of the agreements granted or causes any damage to biological
resources, the local communities may call on the BMCs or the NBA on the account of
overriding public interest or protection of environment and conservation of biological
diversity.278
The NBA may order the SBBs and BMCs to restrict or prohibit access or
revoke the access or approval granted and if there is any damage caused, the NBA
may assess the damage caused and take steps to recover such damage.279
On the other hand, the benefit-sharing agreement under the Thai
PVP Act for accessing protected local domestic plant varieties for commercial interest
shall be made in the name of the community by the local government organization,
farmers’ group or a co-operative to which the certificate of registration of the local
domestic plant variety is granted. The benefits shall be calculated into a percentage
and distributed to the people who conserve or develop the plant variety, the
community, and the local government organization or the farmers’ group that signs
the benefit-sharing agreement.
For the general domestic plant and wild plant varieties, a profit-
sharing agreement shall be made through the competent official at the time of
obtaining permission to access such varieties. The profits derived shall be remitted to
the Plant Varieties Protection Fund following the agreed terms in the benefit-sharing
agreement.
Relatively, the Thai PVP Act seems to ignore the participation of
farmers and local communities since they cannot directly take part in the
consideration and negotiation of the benefit-sharing agreement. Additionally,
Thailand is still lacking mechanisms and a specific institution that would monitor and
follow up the use of accessed biological resources and related knowledge, especially
for commercial purposes. Unlike the benefit-sharing agreement under the BDA of
India which is mutually agreed between the applicant, the BMCs, and relevant
stakeholders including local together with the full authority of the NBA to oversee the
278
The Biological Diversity Rules, 2004 Rule 15 279
Id.
85
misappropriation of its biological resources and discharge all decisions pertaining to
access and benefit-sharing.280
This has strengthened the protection of biological
resources and related knowledge in India and as a result, India has become one of
the most successful countries in protecting their own TK and PGRs.
4.4.2 Farmers’ Rights and Communities’ Rights
Under the PPVFR Act, the definition and scope of farmers’ rights
and communities’ rights including farmers’ varieties have been clearly expressed.
This facilitates the identification of the actual farmers that would be given the
privilege and rights under the PPVFR Act. Accordingly, farmers who have bred or
developed a new variety are entitled for registration and protection in the same
manner as breeders. And if they have engaged in the conservation, improvement
through selection and preservation of genetic resources of landraces and wild relatives
of economic plants, they shall be entitled for recognition and reward through the
National Gene Fund if such materials have been used as donor of genes in the
varieties registered.
The PPVFR Act also entitles farmers to save, use, sow, resow,
exchange, share and most importantly, to sell their farm produce including seeds of a
variety protected under the Act. Likewise, if breeders want to use farmers’ varieties
for creating EDVs, they must obtain prior consent of the farmers or communities who
have preserved or developed such variety.
The Thai PVP Act recognizes and protects the rights of farmers and
local communities in respect of their participation in improving, conserving, and
making use of PGRs. Farmers and local communities, as a group of people registered
280 ววธวงศทพย, แนวทางการค มครองภ ม ปญญาทองถ นของไทย:ศ กษาเปรยบเทยบประเทศไทยก บประเทศอ นเดย, 87 วารสารส ทธ ปร ทศน, 336, 323-344 (2557) (Vivit Vongthip, The
Guiding Principle to the Protection of Traditional Knowledge in Thailand: A
Comparative Study between Thailand and India, 87 Suthiparithat Journal, 336,
323-344 (2014).
86
as a community under the Act, may register their local domestic plant varieties
existing only in a particular locality which has been conserved or developed
exclusively by a particular community. However, it has been claimed that the
qualification to register a domestic plant variety is hardly met since the possibility of a
plant variety existing in only a particular place is highly unlikely. Usually, it scatters
throughout various places resulting from the free exchange of plant materials and
knowledge among various communities. Therefore, the difficulty in identifying a
specific community that has originally conserved or developed a particular domestic
plant variety that is eligible for registering its variety has emerged.
Despite, the Thai PVP Act furnishes the farmers’ privilege by
allowing farmers to cultivate and propagate the protected new plant variety from the
propagating material made by themselves. Though it does not permit them to
exchange, share or sell the protected new plant including the seeds of a protected
variety which is an important ingredient for conservation of plant varieties. On the
other hand, exchanging, sharing or selling of the protected new plant by farmers could
be considered as an act of commercial purpose which infringes the rights of the holder
of a new plant variety. To conclude, the farmers’ privilege granted under the Thai
PVP Act is different from the farmers’ rights granted under the PPVFR Act of India
and still does not provide effective enforcement. Thus, Thailand is regarded as lacking
of adequate regulations to protect farmers’ rights and communities’ rights.281
4.4.3 Traditional Knowledge and Plant Genetic Resources
Management
Generally, TK is often held collectively by communities rather than
by individual owners. It is usually transmitted from generation to generation generally
281 กฤชฤทธา , ส ทธ เกษตรกรในการอน รกษและเขาถงพนธ พ ช: ศกษาเปรยบเทยบกฎหมาย สาธารณรฐอ นเดยและราชอาณาจก รไทย(2556) (วทยานพนธปรญญานตศาสตรมหาบ ณฑตคณะ นตศาสตรมหาวทยาล ยธรรมศาสตร ) (Krit Ritta, Farmers’ Rights in Conserving and
Accessing to Plant Varieties: Comparative study between Indian law and Thai
law (2013) (LL.M. thesis, Thammasat University)).
87
within the community or families in oral form without any adequate
documentation.282
In 2001, India has established the TKDL to protect its TK from
exploitation through bio-piracy and unpatentable inventions. The TKDL has made
Indian TK available by documenting it electronically and classifying it using modern
classification systems to facilitate the patent examiners in access of information
related to prior art before granting a patent in the area of TK to prevent the grant of
wrong patents.
While the law for the protection of Thai TK is being promulgated,
the DIP has enacted the regulation concerning the establishment of databases on Thai
local intelligence dated 7 November B.E.2545 (2002).283
It generally laid down the
regulations and procedures in the recordation of Thai TK.284
The recordation is
performed by the DIP aiming to invite people or groups of people who conserve,
reserve or develop Thai TK to notify and register information of their TK as a
reference databank and to promote the use of the registered TK information. This
helps prevent redundancy and overlapping of TK as it collects all kinds of TK
obtained in Thailand.285
According to this regulation, the TK that may be recorded is the
knowledge of the local communities in the sector of food and beverage production;
the products derived from medicinal herbs; products derived from waste materials and
products made from wood, stone, metal, glass, ceramic, earth, leather and other
similar materials.286
In addition, the expression of folklore can also be recorded such
282 Vishwas, supra note 12.
283 Panamas, supra note 5.
284 Chavalit, supra note 231.
285 “กรมทร พยส นทางปญญายกเล กขอร บบร การขอม ลภ ม ปญญาทองถ นไทย” (“Department of
Intellectual Property repealed the regulation concerning the establishment of
databases on Thai local intelligence”), available at http://www.manager.co.th/iBiz
Channel/ViewNews.aspx?NewsID=9580000033634 (last visited June 25, 2015). 286
Panamas, supra note 5.
88
as folk tales and poems; folk songs and music; folk dances and drama along with
native art, sculptures, costumes and the patterns designed in local textiles.287
Nevertheless, with regard to the notification, it only provides a
procedure for recording the Thai TK and collecting information of them as a reference
database without establishing any rights of the holders. The statistics of Thai TK
Notifications are shown in the table below;
Table 4.2: Statistics of Thai Traditional Knowledge Notifications
Year Grand Local Knowl edge Folklore
Total Total Bangkok Provincial Total Bangkok Provincial
2013 71 71 6 65 0 0 0
2012 83 83 7 76 0 0 0
2011 47 47 1 46 0 0 0
2010 70 70 0 70 0 0 0
2009 808 792 91 701 16 3 13
2008 118 117 5 112 1 0 1
2007 134 118 13 105 16 0 16
2006 200 199 13 186 1 0 1
2005 350 348 11 337 2 0 2
2004 1,767 1,744 36 1,708 23 0 23
2003 - - - - - - -
Total 1,881 1,845 147 1,698 36 3 33
Courtesy of Department of Intellectual Property, Ministry of Commerce
(Source: http://www.ipthailand.go.th/index.php?option=com_docman&view=
docman&Itemid=370)
However in March 2015, the Notification of the DIP has been
repealed and the Thai TK notification system has also been withdrawn. This is
because presently, Thailand still has no proper sui generis law for protection of all
287
Id.
89
TK.288
Some of existing sui generis laws only provide for protection of specific types
of TK under the supervision of different institutions.289
For example, the traditional
Thai medicinal intelligence is under the supervision of the Ministry of Public Health,
where the plant varieties are under the supervision of the Ministry of Agriculture and
Cooperatives. Therefore, the DIP has considered that it is better to have each of the
institutions to directly oversee relating TK under its specific sui generis law including
the registration of relating TK, preparing a TK database, etc.
As a result, currently Thailand has no central database for the
overseeing of all TK as a whole. Instead, local knowledge is usually scattered among
many different institutions such as the Department of Agricultural Extension,
Department of Thai Traditional and Complementary Medicine, Department of
National Parks, Wildlife and Plant Conservation and National Center for Genetic
Engineering and Biotechnology (BIOTEC), leading to redundancy and overlapping of
the TK. Each of the above institutions works individually to oversee different kinds of
resources and knowledge which does not provide a collaborative function for
supervision of Thai TK. This may lead to bio-piracy and unsustainable use of the
resources and knowledge derived from Thailand. Therefore, the need for a national
central database to archive Thai TK including Thai traditional medicine has been
highlighted.
288 “กรมทร พยส นทางปญญายกเล กขอร บบร การขอม ลภ ม ปญญาทองถ นไทย” (“Department of
Intellectual Property repealed the regulation concerning the establishment of
databases on Thai local intelligence”), supra note 285.
289 Id.
90
CHAPTER 5
CONCLUSIONS AND RECOMMENDATIONS
In Thailand, there are two major sui generis laws directly addressing the
protection of TK and PGRs; the Thailand Plant Varieties Protection Act B.E. 2542
and Thai Traditional Medicine Intelligence Act B.E. 2542 which neither provide a
functional system nor effective enforcement when comparing to the Indian sui generis
laws and system. To develop an effective sui generis system regarding the protection
of TK and PGRs, Thailand has various alternatives such as those suggested by Indian
laws and system. Each contains more specific details as follows.
5.1 Management of Access and Benefit-Sharing
For access and benefit-sharing management in Thailand, the State,
provincial and local institutions that systematize the collaboration between each of the
communities in Thailand should be established to encourage the participation of
farmers and local communities in negotiating benefit-sharing. However, the Ministry
of Agriculture and Cooperatives should be the primary agency to oversee the TK and
PGRs and facilitate benefit-sharing on behalf of the communities since farmers and
local communities alone may not be fully prepared to be able to properly negotiate
with companies or organizations.
Furthermore, Thailand is still lacking mechanisms that would monitor and
follow up the use of accessed biological resources and related knowledge, especially
for commercial purposes. The established institution at the State level could
potentially ensure that communities’ right of participation are properly promoted and
respected. In this case, if the applicants fail to comply with the conditions of the
agreements or cause any damage to biological recourses, the local communities may,
through appointed institution, oppose or deny the access. And if there is any damage
caused, the appointed institution, together with the affected communities, may assess
the damage caused and take steps to recover such damage.
91
5.2 Protection of Farmers’ Rights and Communities’ Rights
The development of TK and PGRs protection in Thailand should not only
seek to prevent bio-piracy but also recognize the rights of owners who protect,
develop and preserve their TK and PGRs. Therefore, the granting of rights that
empower farmers and communities to promote their TK and PGRs to control the use
and benefits from the commercial exploitation is recommended.290
To start with, the definition and scope of a ‘farmer’, ‘community’, ‘rights
of farmers’ and ‘rights of communities’ to be protected under the Thai PVP Act
should be clearly expressed to identify the actual farmers and communities that would
be provided protection and benefits. The given definition shall be specific and must
not create any confusion. Also, the rights provided shall be collective rights over their
TK and PGRs with a participation of farmers and local communities in the setting of
proper terms and conditions of access and benefit-sharing.
Furthermore, the Thai PVP Act should clearly permit farmers to
exchange, share or sell the protected new plant varieties including seeds to encourage
development and conservation of plant varieties in order to bring about biological
diversity.
5.3 Establishment of a central database for Traditional Knowledge
Currently, Thailand has no sector or institution for overseeing all of the
TK as a whole. Instead, the local knowledge usually scatters in many institutions
leading to redundancy and overlapping of Thai TK. Furthermore, each of the
institution usually works individually to oversee different kinds of knowledge and
resources which do not provide collaborative function for supervision of Thai TK.
290 Hanamshet Kritika et al., Traditional knowledge protection, available at http://
www.slideshare.net/AbhishekSingh337/intellectual-and-traditional-knowledge-of-
india-ppt (last visited April 15, 2015).
92
The establishment of a national central database to collect and archive
Thai TK including Thai traditional medicine is suggested. It shall be a one-stop
service center collecting all information related to Thai TK. In this case, a special
institute, for example, a National Mission on Traditional Knowledge, may be
established to directly supervise and be responsible for all national TK in an
organized way. The established institute should support initiatives at different levels
including State level, provincial level and local level and also coordinate with other
related institutions such as the Ministries of Science and Technology, Public Health,
Agriculture, and Commerce as well as NGOs and private sectors for the purpose of
unity.291
For the established TK database, it could be an important source of
reference for all Thais to access national TK for the purpose of studying, researching
and development of the existing TK. A searchable database can be used as evidence
of prior art by patent examiners when accessing patent applications. This follows the
Indian concept of their TKDL which has been successful in protecting their TK and
PGRs.
291
Vishwas, supra note 12.
93
REFERENCES
1. Books and Book Articles
1.1 English
Abbott Ryan, M.D., J.D., and M.T.O.M. WIPO. Documenting Traditional Medical
Knowledge. <http://www.wipo.int/export/sites/www/tk/en/resources/pdf/medi
cal_tk.pdf> (accessed March 4, 2015).
Anderson Neil O., editor. Flower Breeding and Genetics: Issues, Challenges and
Opportunities for the 21th Century. Dordrecht: Springer 2007.
Brahmi, Pratibha., Saxena, Sanjeev., and Dhillon, B. S., “The Protection of Plant
Varieties and Farmers’s Right Act of India.” Current Science, no. 86, 2004:
392-398.
Carrizosa, Santiago., Brush, Stephen B., Wright, Brian D., and Mcguire, Patrick E.,
editor. Accessing Biodiversity and Sharing the Benefits: Lessons from
Implementing the Convention on Biological Diversity. Germany:
medienHaus Plump GmbH, 2004.
Chouhan, Vishwas Kumar. “Protection of traditional knowledge in India by patent:
Legal Aspect.” Journal of Humanities and Social Science (JHSS), no. 3,
2012: 35-42.
Egede, Edwin., and Sutch, Peter. The Politics of International Law and
International Justice. Edinburgh: CPI Group (UK), 2013.
Fedder, Bevis. Marine Genetic Resources, Access and Benefit Sharing: Legal and
Biological Perspectives. New York: Routledge, 2013.
Fink, Carsten. “What are intellectual property rights?.” Intellectual Property and
the WTO, 2004.
Goldstein, Paul., and Straus, Joseph., editor. Intellectual Property in Asia: Law,
Economics, History and Politics. Heldeiberg: Springer 2009.
Hammer, K., and Teklu,Y. “Plant Genetic Resource: Selected Issues From Genetic
Erosion to Genetic Engineering.” Journal of Agriculture and Rural
Development in the Tropics and Subtropics, no.1, 2008: 15-50.
94
Heath, Christopher., and Kamperman, Sanders Anselm., editor. Intellectual Property
& Free Trade Agreements. Oregon: Bloomby, 2007.
Kuanpoth, Jakkrit. “Protection of Thai Traditional Knowledge in the Face of
Globalization: Balancing Mechanism between CBD and TRIPS.” Thailand
Law Journal, 2009. https://www.thailawforum.com/articles/Legal-Protection-
Of-Traditinal-Knowledge.html (accessed July 26, 2015).
Kudngaongarm, Panamas. “Thai Traditional Medicine Protection (Part I).”
Thailand Law Journal, no. 14, 2011. http://www.thailawforum.com/articles/
Thai-traditional-medicine-protection-part1.html (accessed March 21, 2015).
Lertdhamtewe, Pawarit. “Thailand’s Plant Protection Regime: A Case Study in
Implementing TRIPS.” Journal of Intellectual property law & practice,
no.7, 2012: 186-193.
Levy, Ryan D., and Green, Spencer. “Pharmaceuticals and Biopiracy How the AIA
May Inadvertently Reduce the Misappropriation of Traditional Medicine,
University of Miami Law School.” University of Miami Business Law
Review, 2015. http://repository.law.miami.edu/cgi/viewcontent.cgi?article=
1251&context=umblr (accessed June 25, 2015).
Litaay, Theofransus. Falk, Ian., Wallace, Ruth., and Ndoen, Marthen L., editor.
Managing Biosecurity Across Borders. London: Springer 2011.
Malbon, Justin., and Lawson, Charles., editor. Interpreting and implementing the
TRIPS agreement: Is it fair?. Massachusetts: Edward Elgar, 2008.
Malik, C.P., Wadwani, Chitra., and Kaur, Bravneet., editor. Crop Breeding and
Biotechnology. Jaipur: Pointer Publishers, 2009.
Melendez-Ortiz, Ricardo., and Roffe, Pedro., editor. Intellectual Property and
Sustainable Development: Development Agendas in a Changing World.
Massachusetts: Edward Elgar, 2009.
The Protection of Plant Varieties and Farmers’ Right Act, 2001. New Delhi:
Universal Law Publishing, 2010.
Robinson, Daniel F. Confronting Biopiracy: Challenges, Cases and International
Debates. New York: Taylor&Francis 2010.
Sateesh, M. K. Bioethics and Biosafety. New Delhi: I.K. International Publishing
House, 2008.
95
Sople, Vinod V. Managing intellectual property: The strategic imperative.
Prentice- Hall of India, 2006.
Tripathi, S K. “Traditional knowledge: Its significance and implication.” Indian
Journal of Traditional Knowledge, no. 2, 2003: 99-106.
Tronchetti, Fabio. The Exploitation of Natural Resources of the Moon and other
Celestial Bodies: A Proposal for a Legal Regime. Boston: Martinus Nijhoff,
2009.
Venkataraman, K. “Access and Benefit Sharing and the Biological Diversity Act of
India: A progress report.” Asian Biotechnology and Development Review,
no. 3, 2008: 69-80.
Wong, Tzen., and Dutfield, Graham., editor. Intellectual Property and Human
Development: Current Trends and Future Scenarios. New York:
Cambridge University, 2011.
1.2 Thai
วงศทพย, ววธ. “แนวทางการค มครองภ ม ปญญาทองถ นของไทย: ศ กษาเปรยบเทยบประเทศไทยก บ
ประเทศอ นเดย.” วารสารส ทธ ปร ทศน, no.87, 2557:323-344.(Vongthip,Vivit. “The
Guiding Principle to the Protection of Traditional Knowledge in Thailand: A
Comparative Study between Thailand and India.” Suthiparithat Journal, no.
87, 2014:323-344.
2. Articles and Reports
2.1 English
Adhikari, Kamalesh. “Protection of Farmers’ Rights over Plant Varieties in Southeast
Asian Countries.” Southeast Asian Council for Food Security And Fair Trade.
2008.
Andrews, B. “Explaining and Defining Traditional Knowledge Terminology.”
National Biodiversity Authority. https://absch.cbd.int/api/v2013/documents/
96
08DAF499-1F70-3DA3-9887-4D56521D3D8D/attachments/TK_TERMINO
LOGY.pdf (accessed March 20, 2015).
“CBD Access & Benefit-Sharing Guidelines and NAPPRA Quarantine Regulations.”
Paper presented at Face2Face Summit. United States National Arboretum,
Washington, D.C., 2012. <https://www.publicgardens.org/files/files/Summit_
bios.pdf> (accessed June 20, 2015).
Gupta, V.K., “Traditional Knowledge Digital Library.” Paper presented at the Sub-
Regional Experts Meeting in Asia on Intangible Cultural Heritage:
Safeguarding and Inventory-Making Methodologies, Bangkok, Thailand, 13-
16 December 2005.
Hirwade, Mangala Anil. Protecting Traditional Knowledge Digitally: A Case Study of
TKDL. https://eprints.rclis.org/14020/1/TKDL_paper.pdf (accessed June 23,
2015).
International Council for Science. Report from the ICSU Study Group on Science and
Traditional Knowledge. 2002. http://www.icsu.org/publications/reports- and-
reviews/science-traditional-knowledge/Science-traditional-knowledge.pdf
(accessed March 4, 2015).
International Institute for Sustainable Development (IISD). “Sustainable
Development: From Brundtland to Rio 2012.” Background paper, 2010.
http://www.un.org/wcm/webdav/site/climatechange/shared/gsp/docs/GSP1-
6_Background%20on%20Sustainable%20Devt.pdf (accessed February 28,
2015).
Koonan, Sujith. Developing Country Sui Generis Options: India’s sui generis system
of plant variety protection. 2014. https://www.quno.org/sites/default/
files/resources/QUNO%20India%20-%20plant%20variety%20protection%20-
%202014.pdf (accessed March 16, 2015).
Lertdhamtewe, Pawarit. “Implementing the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement): A Case Study of Thailand’s
Plant Protection Regime.” ANZSIL–SCIL Research Symposium on
International Economic Law. 2011. https://www.academia.edu/1205715/
Implementing_the_TRIPS_Agreement_A_Case_Study_of_Thailands_Plant_
Protection_Regime (accessed June 20, 2015).
97
Ministry of Agriculture, Government of India. Protection of Plant Varieties and
Farmers’ Right Authority. http://plantauthority.gov.in/pdf/G_Brochure_
English_pdf (accessed May 16, 2015).
Mishra, Anupam., Misra, A.K., and Borthakur, Nirmali. Role of Organizations in
Protecting Plant Varieties and Farmers’ Rights. http://www.kiran.nic.in/pdf/
publications/ppv_barapani.pdf (accessed May 20, 2015).
A Project of the Levin Institute - The State University of New York. International
Law and Organizations. http://www.globalization101.org/uploads/File/
Inter/interall.pdf (accessed February 28, 2015).
Ramanna, Anitha. Environment and Production Technology Division “India’s Plant
Variety and Farmers’ Rights Legislation: Potential Impact on Stakeholder
access to Genetic Resources.” EPTD Discussion Paper. 2003.
http://ageconsearch.umn.edu/bitstream/16105/1/dp020096.pdf (accessed
March 17, 2015).
Ramanna, Anitha. The Fridtjof Nansen Institute. “Farmers’ Rights in India: A Case
Study.” FNI Report. 2006. http://fni.no/doc&pdf/FNI-R0606.pdf (accessed
March 17, 2015).
Research and Information System for Developing Countries India Habitat Centre.
“National Study on ABS Implementation in India.” The ABS Capacity
Development Initiative in collaboration with the Government of India. 2014.
http://www.abs-initiative.info/fileadmin/media/Knowledge_Center/
Pulications/ABS_Dialogue_042014/National_study_on_ABS_implementation
_in_India_20140716.pdf (accessed April 11, 2015).
The Secretariat of the Convention on Biological Diversity. Convention on Biological
Diversity: The Nagoya Protocol on Access and Benefit-sharing. 2011.
https://www.cbd.int/abs/infokit/revised/web/factsheet-nagoya-en.pdf (accessed
March 3, 2015).
The Secretariat of the Convention on Biological Diversity. Introduction to Access and
Benefit-sharing. 2010. https://www.cbd.int/abs/infokit/brochure-en.pdf
(accessed May 8, 2015).
Shenoy, Yeshwanth. “An Introduction to the Biological Diversity Act, 2002.”
National Conference on Biodiversity, Development and Poverty Alleviation,
98
May 22, 2010. http://www.upsbdb.org/pdf/Souvenir2010/11.pdf (accessed
March 5, 2015).
Timmermans, Karin. “Trips, CBD and Traditional medicines: Concepts and
questions.” Report of an ASEAN Workshop on the TRIPS agreement and
Traditional Medicine, Jakarta, 13-15 February, 2001.
Union for Ethical BioTrade. Access and Benefit Sharing (ABS): Basic Information
Sheet. 2010. http://ethicalbiotrade.org/dl/benefit-sharing/UEBT%20ABS%20
Basic%20Info.pdf (accessed February 28, 2015).
World Commission on Environment and Development. “Our common future.” Report
of the World Commission on Environment and Development. 1987.
World Intellectual Property Organization. Intellectual Property and Genetic
Resources, Traditional Knowledge, and Folklore. http://www.wipo.int/
edocs/pubdocs/en/ intproperty/450/wipo_pub_l450gtf.pdf (accessed March 4,
2015).
World Intellectual Property Organization. Intellectual Property and Genetic
Resources, Traditional Knowledge and Traditional Cultural Expressions: An
Overview. 2015. http://www.wipo.int/edocs/pubdocs/en/tk/933/wipo_pub_
933.pdf (accessed March 8, 2015).
2.2 Thai
กรมทร พยสนทางปญญา. รายงานฉบ บสมบ รณ โครงการยกรางพระราชบ ญญ ต ค มครองภ ม ปญญาท
องถ นไทยพ .ศ.... (Department of Intellectual Property. Complete Report on
drafting of the Thai Traditional Knowledge Protection Act B.E. … Project).
https://www.ipthailand.go.th/index.php?option=com_docman&view=docman
&Itemid=369 (accessed June 26, 2015).
ทองสมา, ภ ทรนทร. การประช มเพ อเผยแพรขอต ดส นใจจากการประช มสม ชชาภาคอน ส ญญาวาดวย
ความหลากหลายทางชวภาพ สม ยท 12. (Tongsima, Pattarin. A meeting for
disseminate the decisions from the 12th
Meeting of the Conference of the
Parties to the Convention on Biological Diversity (COP 12)). http://chm-thai.
99
onep.go.th/chm/Meeting/2015/feb23-24/doc/20150223_003.pdf (accessed July
2, 2015).
3. Academic References
3.1 English
Lemeire, Saskia. “Biopiracy.” Faculteit Rechtsgeleerdheid, Universiteit Gent, 2012.
<http://lib.ugent.be/fulltxt/RUG01/002/060/813/RUG01-002060813_2013_
0001_AC.pdf> (accessed February 25, 2015).
3.2 Thai
เจรญวรยะธรรม, สชาดา. การค มครองผ ทรงส ทธ และส ทธ ของผ ทรงส ทธ ในภ ม ปญญาทองถ น.
วทยานพนธปรญญานตศาสตรมหาบ ณฑต คณะนตศาสตร สถาบ นบ ณฑตพ ฒนบรหาร
ศาสตร, 2556. (Charoenviriyatham, Suchada. Protection of person
entitled and the rights of ownership in traditional knowledge. LL.M. thesis,
National Institute of Development Administration, 2013).
ฤทธา, กฤช. ส ทธ เกษตรกรในการอน ร กษและเขาถ งพ นธ พ ช: ศ กษาเปรยบเทยบกฎหมายสาธารณร ฐ
อ นเดยและราชอาณาจ กรไทย. วทยานพนธปรญญานตศาสตรมหาบ ณฑต คณะนตศาสตร
มหาวทยาล ยธรรมศาสตร, 2556. (Rittha, Krit. Farmers’s rights in conserving and
accessing to plant varieties: comparative study between India law and Thai
law. LL.M. thesis, Thammasat University, 2013).
ลมปจ นทรา, พชร.การค มครองภ ม ปญญาทองถ นภายใตกฎหมายของประเทศไทย : เปรยบเทยบก บ
ความตกลงระหวางประเทศ. วทยานพนธปรญญานตศาสตรมหาบ ณฑต คณะนตศาสตร
มหาวทยาล ยธรรมศาสตร, 2550. (Limjantra, Pachara. The Protection of
Traditional Knowledge by Laws of Thailand: Compared with International
Agreements. LL.M. thesis, Thammasat University, 2007).
100
อนภ, มานะช ย. พ นธกรณของประเทศไทยในการเขารวมเปนภาคพ ธสารนาโงยาวาดวยการเขาถ ง
ทร พยากรพ นธ กรรมและการแบงปนผลประโยชนทเก ดข นจากการใชประโยชนทร พยากร
พ นธ กรรมอยางเทาเทยมและเปนธรรมค .ศ.2010, วทยานพนธปรญญานตศาสตร
มหาบ ณฑตคณะนตศาสตรมหาวทยาล ยธรรมศาสตร , 2556. (Onpu Manachai,
Obligations of Thailand as a Party to The Nagoya Protocol on Access to
Genetic Resources and the Fair and Equitable Sharing of Benefits Arising
from their Utilization, 2010. LL.M. thesis, Thammasat University, 2013).
4. Electronic Media
4.1 English
“About the Nagoya Protocol.” <https://www.cbd.int/abs/about/> (accessed March 2,
2015).
“Access and Benefit Sharing (ABS)”. <https://www.cbd.int/cop/cop11/doc/cop-11-
media-press-brief-abs.pdf> (accessed May 11, 2015).
“Access and Benefit Sharing (ABS) in the Union.” <http://ethicalbiotrade.org/abs/>
(accessed February 28, 2015).
ASEAN Intellectual Property Association. “IP Protection in Thailand.”
<https://aseanipa.org/index.php/members/thailand1/197-ipguidesthailand/562-
ip-protection-thailand> (accessed June 26, 2015).
Assam State Biodiversity Board. “Preparation of People’s Biodiversity Register
(PBR).” <http://asbb.gov.in/preparation.html> (accessed May 31, 2015).
“Biodiversity of India: A wiki resources for Indian Biodiversity.” <https://www.bio
diversityofindia.org/> (accessed March 4, 2015).
“Biopiracy, TRIPS and the Patenting of Asia’s Rice Bowl: A Collective NGO
situationer on IPRs on rice.” <https://www.grain.org/article/entries/27-
biopiracy-trips-and-the-patenting-of-asia-s-rice-bowl> (accessed June 23,
2015).
Bärlund, Kaj. United Nations Economic Commission for Europe. “Sustainable
Development - Concept and Action.” <http://www.unece.org/oes/nutshell/
101
2004-2005/focus_sustainable_development.html> (accessed February 28,
2015).
Cabinet Decision. “Ratification of Nagoya Protocol on Access and Benefit Sharing by
India.” <http://pib.nic.in/newsite/erelease.aspx?relid=88149> (accessed June
21, 2015).
Committee on Trade and Environment Council for Trade-Related Aspects of
Intellectual Property Rights. “Protection of Biodiversity and Traditional
Knowledge – The Indian Experience.” <http://commerce.nic.in/ip_c_w_
198.htm> (accessed March 4, 2015).
“The Contents of Farmers’ Rights.” <http://www.farmersrights.org/about/fr_contents.
html > (accessed May 13, 2015).
The Convention on Biological Diversity. “Parties to the Nagoya Protocol.”
<https://www.cbd.int/abs/nagoya-protocol/signatories/> (accessed June 21,
2015).
Council of Scientific and Industrial Research [CSIR]. “Traditional Knowledge Digital
Library (TKDL).”<https://www.csir.res.in/External/Utilities/Frames/career/
main_page1.asp?a=tkdl_topframe.htm&b=tkdlleft.htm&c=..%2F..%2F..%2FH
eads%2FTKDL%2Fmain.htm> (accessed June 24, 2015).
“Definitions of Traditional Knowledge.” <http://nafaforestry.org/forest_home/docu
ments/TKdefs-FH-19dec06.pdf> (accessed March 7, 2015).
Department of the Environment, Australian Government. “The Nagoya Protocol -
Convention on Biological Diversity.” <http://www.environment.gov.au/
topics/science-and-research/australias-biological-resources/nagoya-protocol-
convention-biological> (accessed April 11, 2015).
Embassy of the United States, New Delhi, India. “Introduction to Patents.”
<https://newdelhi.usembassy.gov/iprpatents.html> (accessed March 21, 2015).
Embassy of the United States, New Delhi, India. “Introduction to Plant Varieties and
Farmers Right.” <https://newdelhi.usembassy.gov/iprplantfarm.html>
(accessed May 20, 2015).
“EU trade pact ʻrisks surge in seed pricesʼ: Experts say Thai farmers will fall deeper
into debt.” <http://www.bangkokpost.com/print/323402/> (accessed June 25,
2015).
102
Farmers’ Rights: Resource pages for decision-makers and practitioners. “Farmers’
Rights in the International Treaty on Plant Genetic Resources for Food and
Agriculture.” <http://www.farmersrights.org/about/fr_in_itpgrfa.html>
(accessed May 12, 2015).
Farmers’ Rights: Resource pages for decision-makers and practitioners. “Two
approaches to Farmers’ Rights.” <http://www.farmersrights.org/about/fr_
contents_1.html> (accessed May 13, 2015).
Hanamshet, Kritika., Abinash, Sahoo., Singh, Abhishek A.P., Clyde, Vincent., and
Priyanka, Yadav. “Traditional Knowledge Protection.” <http://www.slide
share.net/AbhishekSingh337/intellectual-and-traditional-knowledge-of-india-
ppt> (accessed April 15, 2015).
Institute for the Advanced Study of Sustainability Traditional Knowledge, United
Nations University. “International Treaty on Plant Genetic Resources
(ITPGRFA).” <http://www.unutki.org/default.php?doc_id=54> (accessed
March 1, 2015).
“International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGR).” <http://www.cambia.org/daisy/KeyOrgs/1236/418/424/425.html>
(accessed March 1, 2015).
Interntional Union for the Protection of New Varieties of Plants. “Members.”
<http://www.upov.int/members/en/> (accessed June 19, 2015).
Kuanpoth, Jakkrit. “Major issues in the Thai patent system.” <https://www.thailaw
forum.com/ articles/jakpat1.html> (accessed June 25, 2015).
Lertdhamtewe, Pawarit. “Asian Approaches to International Law: Focusing on Plant
Protection Issues.”<https://www.academia.edu/2397939/Asian_Approaches_
to_International_Law_Focusing_on_Plant_Protection_Issues> (accessed June
20, 2015).
Ministry of Commerce and Industry, Government of India. “Protecting Traditional
Knowledge: Why it is important.” <http://commerce.nic.in/wtoapril2002.htm>
(accessed March 21, 2015).
Mumba, Luke E., and Marandu, Wilson. “Traditional Knowledge and Plant Genetic
Resources Guidelines.” <http://naturaljustice.org/wp-content/uploads/pdf/
SanBioGuidelines.pdf> (accessed March 21, 2015).
103
National Biodiversity Authority. “FAQ.” <http://nbaindia.org/content/19/16/1/faq.
html> (accessed April 12, 2015).
Philippidis, Alex. “Nagoya Protocol’s Rules for Genetic Resources Pose Challenges
for U.S. Drug Developers.” <http://www.genengnews.com/analysis-and-
insight/nagoya-protocol-s-rules-for-genetic-resources-pose-challenges-for-u-s-
drug-developers/77899449/> (accessed June 21, 2015).
“The Protection of Plant Varieties and Farmers Rights Act, 2001.” <http://papers.
ssrn.com/sol3/papers.cfm?abstract_id=2208399> (accessed May 16, 2015).
Runguphan, Titima. “Biopiracy in Asia: A case study of India and Thailand.” <http://
www.researchgate.net/publication/29835623_Biopiracy_in_Asia a_case_
study_of_India_and_Thailand> (accessed February 25, 2015).
The Secretariat of the Convention on Biological Diversity. “Traditional Knowledge
and the Convention on Biological Diversity.” <https://www.cbd.int/
traditional/intro.shtml> (accessed March 5, 2015).
Taylor, Prue. “The common heritage of mankind: A bold doctrine kept within strict
boundaries.” In Encyclopedia of Sustainability: The Law and Politics of
Sustainability. 2011. <http://wealthofthecommons.org/essay/common-
heritage-mankind-bold-doctrine-kept-within-strict-boundaries> (last visited
March 10, 2015).
Thailand Law. “Basics of Thai Patent Act.” <https://www.thailandlaw.org/basics-of-
thai-patent-act.html> (accessed March 4, 2015).
“TKDL Outcomes against bio-piracy.”<http://www.tkdl.res.in/tkdl/langdefault/
common/Outcome.asp> (accessed March 22, 2015).
“Traditional Knowledge Digital Library.” <http://en.wikipedia.org/wiki/Traditional_
Knowledge_Digital_library> (accessed March 21, 2015).
Traditional Knowledge Digital Library. “FAQ.” <http://www.tkdl.res.in/tkdl/
langdefault/common/Faq.asp?GL=Eng> (accessed March 21, 2015).
“The UPOV System: Summary of Presentation – part 2.” <http://lawandpolicy
module.bioversityinternational.org/fileadmin/bioversityDocs/Policy_module/
Policy_Module_2005/Session6/session6c-the_UPOV_System.pdf> (accessed
June 20, 2015).
104
Uttasart, Chavalit. “The relevance of traditional knowledge to intellectual property
law.” < https://www.aippi.org/download/commitees/232/GR232thailand.pdf >
(accessed June 27, 2015).
World Intellectual Property Organization. “About the Traditional Knowledge Digital
Library.” <http://www.wipo.int/meetings/en/2011/wipo_tkdl_del_11/about_
tkdl.html> (accessed March 21, 2015).
World Intellectual Property Organization. “Traditional Knowledge and Intellectual
Property - Background Brief.” <http://www.wipo.int/pressroom/en/briefs/tk_
ip.html> (accessed March 21, 2015).
4.2 Thai
“กรมทร พยส นทางปญญายกเล ก ขอร บบร การขอม ลภ ม ปญญาทองถ นไทย .” (“Department of
Intellectual Property repealed the regulation concerning the establishment of
databases on Thai local intelligence.” <http://www.manager.co.th/iBiz
Channel/ViewNews.aspx?NewsID=9580000033634> (accessed June 25,
2015.)
5. Other Materials
The Agreement on Trade-Related Aspects of Intellectual Property Rights
The Biological Diversity Act, 2002
BIO president and CEO James C. Greenwood and his PhRMA counterpart, John J.
Castellani, wrote in a May 13, Letter to US Commerce Secretary Gary Locke.
The Convention on Biological Diversity
The Constitution of the Kingdom of Thailand B.E. 2540 (1997) and B.E. 2550 (2007)
The draft of the promotion of the Thai Traditional Knowledge Protection Act B.E…
Focus Group meeting of the Government agencies, NGOs and related agencies in
Thailand on 22nd
August B.E. 2550 (2007) on drafting of the Thai Traditional
Knowledge Protection Act B.E…
The International Treaty on Plant Genetic Resources for Food and Agriculture
The International Union for the Protection of New Varieties of Plants
105
Letter to the Chairman of International Convention for the Protection of New
Varieties of Plants UPOV 1991, 18 November 2013
Ministerial Regulation on Rules, Procedures and Conditions for collecting, procuring
or gathering general domestic plant varieties or wild plant varieties for the
purpose of variety development, education, experiment or research for
commercial interest and making a profit-sharing agreement B.E. 2553 (2010)
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable
Sharing of Benefits Arising from their Utilization to the Convention on
Biological Diversity
The Patent Act B.E.2522 (1979)
The Patents (Amendment) Act, 2005 (Act No.15 of 2005)
The Protection of Plant Varieties and Farmers’ Rights Act, 2001
Thailand Plant Varieties Protection Act B.E. 2542 (1999)
The Thai Traditional Medicine Intelligence Act B.E. 2542 (1999)
APPENDICES
106
APPENDIX A
THE PROTECTION OF PLANT VARIETIES
AND FARMERS’ RIGHTS ACT, 2001
The Gazette of India
EXTRAORODINARY PART II – Section 1
PUBLISHED BY AUTHORITY
No. 64] New Delhi, TUESDAY, OCTOBER 30, 2001/KARTIKA 8, 1923
Separate paging is given to this Part in order that it may be filed as a separate compilation
MINISTRY OF LAW, JUSTICE AND COMPANY
AFFAIRS (Legislative Department)
New Delhi, the 30th October, 2001/Kartika 8, 1923 (Saka)
The following Act of Parliament received the assent of the President on the 30th
October, 2001, and is hereby published for general information :-
THE PROTECTION OF PLANT VARIETIES AND FARMERS’
RIGHTS ACT, 2001
No. 53 OF 2001
[30th October, 2001]
An Act 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.
WHEREAS it is 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 new plant varieties;
AND WHEREAS for accelerated agricultural development in the country, it is
necessary to protect plant breeders’ rights to stimulate investment for research and
development, both in the public and private sector, for the development of new plant varieties;
AND WHEREAS such protection will facilitate the growth of the seed industry in
the country which will ensure the availability of high quality seeds and planting material to the farmers;
AND WHEREAS, to give effect to the aforesaid objectives, it is necessary to
undertake measures for the protection of the rights of farmers and plant breeders;
AND WHEREAS India, having ratified the Agreement on Trade Related Aspects
of Intellectual Property Rights should inter alia make provision for giving effect to sub-
paragraph (b) of paragraph 3 of article 27 in Part II of the said Agreement relating to
protection of plant varieties.
107
BE it enacted by Parliament in the Fifty second Year of the Republic of India as follows :-
CHAPTER I
PRELIMINARY
Short title, extent and
commencement.
Definitions
1. (1) This Act may be called the Protection of Plant Varieties
and Farmers’ Rights Act, 2001.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central
Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for
different provisions of this Act and any reference in any such provision to the commencement of this Act shall be
construed as a reference to the coming into force of that provision.
2. In this Act, unless the context otherwise requires –
(a) “Authority” means the Protection of Plant Varieties
and Farmers’ Rights Authority established under sub-section (I)
of section 3;
(b) “benefit sharing”, in relation to a variety, means such proportion of the benefit accruing to a breeder of such variety or
such proportion of the benefit accruing to the breeder from an agent or a licensee of such variety, as the case may be, for
which a claimant shall be entitled as determined by the Authority under section 26;
(c) “breeder” means a person or group of persons or a
farmer or group of farmers or any institution which has bred,
evolved or developed any variety;
(d) “Chairman” means the Chairman of the Tribunal.
(e) “Chairperson” means the Chairperson of the
Authority appointed under clause (a) of sub section (5) of
section 3;
(f) “convention country” means a country which has
acceded to an international convention for the protection of
plant varieties to which India has also acceded, or a country which has a law on protection of plant varieties on the basis of
which India has entered into an agreement for granting plant
breeders’ rights to the citizens of both the countries;
(g) “denomination”, in relation to a variety or its
propagating material or essentially derived variety or its
propagating material, means the denomination of such variety or its propagating material or essentially derived variety or its
propagating material, as the case may be expressed by means
108
of letters or a combination of letters and figures written in any language;
(h) “essential characteristics” means such heritable
traits of a plant variety which are determined by the expression of one or more genes of other heritable determinants that
contribute to the principal features, performance or value of the plant variety;
(i) “essentially derived variety”, in respect of a variety
(the initial variety), shall be said to be essentially derived from
such initial variety when it –
(i) is predominantly derived from such initial variety,
or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that results from the genotype or combination of genotypes of such initial variety;
(ii) is clearly distinguishable from such initial variety;
and
(iii) conforms (except for the differences which result
from the act of derivation) to such initial variety in the
expression of the essential characteristics that result from
the genotype or combination of genotype of such initial variety;
(j) “extent variety” means a variety available in India
which is -
(i) notified under section 5 of the Seeds Act, 1966; or
(ii) farmers; variety; or
(iii) a variety about which there is common knowledge;
or
(iv) any other variety which is in public domain;
(k) “farmers” means any person who -
(i) cultivates crops by cultivating the land himself; or
(ii) cultivates crops by directly supervising the
cultivation or land through any other person; or
(iii) conserves and preserves, severally or jointly, with
any other person any wild species or traditional varieties or
adds value to such wild species or traditional varieties through selection and identification of their useful properties;
(l) “farmers’ variety” means a variety which -
54 of 1966
109
(i) has been traditionally cultivated and evolved by the farmers in their fields; or
(ii) is a wild relative or land race or a variety about
which the farmers possess the common knowledge;
(m) “Gene Fund” means the National Gene Fund
constituted under sub-section (1) of section 45;
(n) “Judicial member: means a Member of the Tribunal
appointed as such under sub-section (1) of section 55 and
includes the Chairman;
(o) “Member” means a Judicial Member or a Technical
Member of the the Tribunal and includes the Chairman;
(p) “member” means a member of the Authority appointed under clause (b) of sub-section (5) of section 3 and includes the member-secretary;
(q) “prescribed” means prescribed by rules made under
this Act;
(r) “propagating material” means any plant or its component or part thereof including an intended seed or
seed which is capable or, or suitable for, regeneration into a
plant;
(s) “Register” means the National Register or Plant
Varieties referred to in section 13;
(t) “Registrar” means a Registrar or Plant Varieties
appointed under sub-section (4) of section 12 and includes
the Registrar-General;
(u) “Registrar-General” means the Registrar General of
Plant Varieties appointed under sub-section (3) of section
12;
(v) “Registry” means the Plant Varieties Registry referred
to in sub-section (1) of section 12;
(w) “regulations” means the regulations made by the
Authority under this Act;
(x) “seed” means a type of living embryo or propagule
capable of regeneration and giving rise to a plant which is
true to such type;
(y) “Tribunal” means the Plant Varieties Protection Appellate Tribunal established under section 54;
(z) “Technical member” means a Member of the Tribunal
who is not a Judicial Member;
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Establishment of Authority
(za) “variety” means a plant grouping except micro
organism within a single botanical taxon of the lowest
known rank, which can be -
(i) defined by the expression of the characteristics
resulting from a given genotype of that plant grouping;
(ii) distinguished from any other plant grouping by
expression of at least one of the said characteristics; and
(iii) considered as a unit with regard to its suitability for
being propagated, which remains unchanged after such propagation,
and includes propagating material of such variety, extant variety,
transgenic variety, farmers’ variety and essentially derived variety.
CHAPTER
II
PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS
AUTHORITY AND REGISTRY
Protection of Plant Varieties and Farmers’ Rights Authority
3. (1) The Central Government shall, by notification in the
Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority for the purposes of this Act.
(2) The Authority shall be a body corporate by the name
aforesaid, having perpetual succession and a common seal with
power to acquire, hold and dispose of properties, both movable and
immovable, and to contract, and shall by the said name sue and be sues.
(3) The head office of the Authority shall be at such place as
the Central Government may, by notification in the Official Gazette, specify and the Authority may, with the previous approval of the
Central Government, establish branch offices at other places in India.
(4) The Authority shall consist of a Chairperson and fifteen
members.
(5) (a) the Chairperson, to be appointed by the Central
Government, shall be a person of outstanding caliber and eminence
with long practical experience to the satisfaction of that Government especially in the field of plant varietal research or agricultural
development.
(b) the members of the Authority, to be appointed by the
Central Government, shall be as follows, namely :-
(i) the Agriculture Commissioner, Government of India,
111
Department of Agriculture & Cooperation, New Delhi, ex- officio;
(ii) the Deputy Director General incharge of Crop
Sciences, Indian Council of Agricultural Research, New Delhi, ex-officio;
(iii) the Joint Secretary incharge of Seeds, Government
of India, Department of Agriculture & Cooperation, New Delhi, ex-officio;
(iv) the Horticulture Commissioner, Government of
India, Department of Agriculture & Cooperation, New Delhi, ex-officio;
(v) the Director, National Bureau of Plant Genetic
Resources, New Delhi, ex-officio;
(vi) one member not below the rank of Joint Secretary to
the Government of India to represent the Department of Bio- technology, Government of India, ex-officio;
(vii) one member not below the rank of Joint Secretary to
the Government of India to represent the Ministry of Environment & Forests, Government of India, ex-officio;
(viii) one member not below the rank of Joint Secretary to
the Government of India to represent the Ministry of Law, Justice and Company Affairs, Government of India, ex-officio;
(ix) one representative from National or State level
farmers’ organization to be nominated by the Central Government;
(x) one representative from a tribal organization to be
nominated by the Central Government;
(xi) one representative from the seed industry to be
nominated by the Central Government;
(xii) one representative from an Agricultural University
to be nominated by the Central Government;
(xiii) one representative from National or State level women’s organization associated with agricultural activities to be nominated by the Central Government; and
(xiv) two representatives of State Governments on
rotation basis to be nominated by the Central Government.
(c) The Registrar-General shall be the ex-officio member-
secretary of the Authority.
(6) The term of office of the Chairperson and the manner of
filling the post shall be such as may be prescribed.
112
(7) The Chairperson shall appoint a Standing Committee
consisting of five members, one of whom shall be a member who is a
representative from a farmers’ organization, to advise the Authority
on all issues including farmers’ rights.
(8) The Chairperson shall be entitled to such salary and
allowances and shall be subject to such conditions of service in
respect of leave, pension, provident fund and other matters as may be prescribed. The allowances for non-official members for
attending the meeting of the Authority shall be such as may be
prescribed.
(9) The Chairperson may resign his office by giving notice
thereof in writing to the Central Government and on such
resignation being accepted, he shall be deemed to have vacated his office.
(10) On the resignation of the Chairperson or on the vacation
of the office of the Chairperson for any reason, the Central Government may appoint one of the members too officiate as Chairperson till a regular Chairperson is appointed in accordance with clause (a) of sub-section (5).
4. (1) The Authority shall meet at such time and place and
shall observe such rules of procedure in regard to the transaction of
business at its meetings [including the quorum at its meetings and
the transaction of business of its Standing Committee appointed under sub-section (7) of section 3] as may be prescribed.
(2) The Chairperson of the Authority shall preside at the
meetings of the Authority.
(3) If, for any reason the Chairperson is unable to attend
any meeting of the Authority, any member of the Authority chosen
by the members present shall preside at the meeting.
(4) All questions which come before any meeting of the
Authority shall be decided by a majority of the votes of the members
of the Authority present and voting and in the event of equality of votes, the Chairperson of the Authority or in his absence, the
person presiding shall have and exercise a second or casting vote.
(5) Every member who is in any way, whether directly,
indirectly or personally, concerned or interested in a matter to be decided at the meeting shall disclose the nature of his concern or interest and after such disclosure, the member, concerned or
interested, shall not attend that meeting.
(6) No act or proceeding of the Authority shall be invalid
merely by reason of -
(a) any vacancy in, or any defect in the constitution of
the Authority; or
Meetings of Authority
Committees of Authority
113
Officers and
other employees
of Authority
Chairperson to be Chief Executive.
General functions of Authority
Authentication of orders, etc. of Authority
Delegation
(b) any defect in the appointment of a person acting as the Chairperson or a member of the Authority; or
(c) any irregularity in the procedure of the Authority
not affecting the merits of the case.
5. (1) the Authority may appoint such committees as may be
necessary for the efficient discharge of its duties and performance of
its functions under this Act.
(2) The persons appointed as members of the committee
under sub-section (1) shall be entitled to receive such allowances or
fees for attending the meetings of the committee as may be fixed by
the Central Government.
6. Subject to such control and restriction as may be
prescribed, the Authority may appoint such officers and other employees as may be necessary for the efficient performance of its
functions and the method of appointment, the salary and allowances and other conditions of service of such other officers and employees of the Authority shall be such as may be prescribed.
7. The Chairperson shall be the Chief Executive of the
Authority and shall exercise such powers and perform such duties as may be prescribed.
8. (1) It shall be the duty of the Authority to promote, by
such measures as it thinks fit, the encouragement for the
development of new varieties of plants and to protect the rights of
the farmers and breeders.
(2) In particular, and without prejudice to the generality of the foregoing provisions, the measures referred to in sub-section (1)
may provide for -
(a) the registration of extant varieties subject to such
terms and conditions and in the manner as may be
prescribed;
(b) developing characterization and documentation of
varieties registered under this Act’
(c) documentation, indexing and cataloguing of farmers’
varieties;
(d) compulsory cataloguing facilities for all varieties of
plants;
(e) ensuring that seeds of the varieties registered under
this Act are available to the farmers and providing for
compulsory licensing of such varieties if the breeder of such varieties or any other person entitled to produce such variety under this Act does not arrange for production and sale of the
seed in the manner as may be prescribed;
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Power of Authority
Registry and offices thereof
(f) collecting statistics with regard to plant varieties, including the contribution of any person at any time in the evolution or development of any plant variety, in India or in
any other country, for compilation and publication;
(g) ensuring the maintenance of the Register.
9. All order and decisions of the Authority shall be
authenticated by the signature of the Chairperson or any other
member authorized by the Authority in this behalf.
10. The Authority may, by general or special order in writing,
delegate to the Chairperson, any member or officer of the Authority
subject to such conditions or limitations, if any, as may be specified
in the order, such of its powers and functions (except the power to
make regulations under section 95) under this Act as it may deem necessary.
11. In all proceedings under this Act before the Authority or
the Registrar, -
(a) the Authority or the Registrar, as the case may be,
shall have all the powers of a civil court for the purposes of
receiving evidence, administering oaths, enforcing the
attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the
examination of witnesses;
(b) the Authority or the Registrar may, subject to any
rule made in this behalf under this Act, make such orders as
to costs as it considers reasonable and any such order shall
be executable as a decree of a civil court.
Registry
12. (1) The Central Government shall establish, for the
purposes of this Act, a Registry which shall be known as the Plant
Varieties Registry.
(2) The head office of the Plant Varieties Registry shall be
located in the head office of the Authority, and for the purpose of
facilitating the registration of varieties, there may be established, at
such places, as the Authority may think fit, branch offices of the Registry.
(3) The Authority shall appoint a Registrar-General of Plant
Varieties who shall be entitled to such salary and allowances and
shall be subject to such conditions of service in respect of leave, pension, provident fund and such other matters as may be
prescribed.
(4) The Authority may appoint such number of Registrars as
it thinks necessary for registration of plant varieties under the
superintendence and direction of the Registrar-General under this Act and may make regulations with respect to their duties and
National Register of Plant
Varieties
115
jurisdiction.
(5) The terms of office and the conditions of service of the
Registrars shall be such as may be provided by regulations.
(6) The Authority may, by notification in the Official Gazette,
define the territorial limits within which a branch office of the Registry may exercise its functions.
(7) There shall be a seal of the Plant Varieties Registry.
13. (1) For the purposes of this Act, a Register called the
National Register of Plant Varieties shall be kept at the head office of
the Registry, wherein shall be entered the names of all the registered plant varieties with the names and addresses of their respective breeders, the rights of such breeders in respect of the
registered varieties, the particulars of the denomination of each registered variety, its seed or other propagating material along with
specification of salient features thereof and such other matters as may be prescribed.
(2) Subject to the superintendence and direction of the
Central Government, the Register shall be kept under the control
and management of the Authority.
(3) There shall be kept at each branch office of the Registry a
copy of the Register and such other documents as the Central
Government may, by notification in the Official Gazette, direct.
CHAPTER III
REGISTRATION OF PLANT VARIETIES AND ESSENTIALLY
DERIVED VARIETY
Application for registration
14. 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. (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.
Application
for
registration
Registrable
variety.
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(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 effect the criteria of novelty for such
variety;
(b) distinct, if it is clearly distinguishable by at least
one essential characteristic from any other variety whose
existence is a matter of common knowledge in any country at the time of filing of the application.
Explanation - For the removal of doubts, it is hereby
declared that the filing of an application for the granting of a breeder’s rights 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 rights 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 of 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 -
12 of
117
Persons who may make application
(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 to such variety of 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; 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. (1) 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 rights to make such application; or
(d) any farmers 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 therein individually or jointly with any
other person.
Compulsory variety denomination
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47 of 1999
17. (1) Every applicant 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 to treaty to which Indian has become a party, make regulations 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, a denomination assigned to a variety shall not be registered as a trade mark under that Act.
18. (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 organization in breeding, evolving or developing
the variety;
(f) be accompanies 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 :
Form of Application
119
Test to be
conducted
Acceptance of
application or amendment thereof.
Advertisement of application
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 application, or within such period
after making the application as may be prescribed, a proof of the rights to make the application.
19. (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 seeds 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 too 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. (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 or presenting his
case.
21. (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
120
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 the applicant; 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 given security for the cost of proceedings before him
and in default of such security being duly given any treat the
opposition or application, as the case may be, as abandoned.
Registrar to
consider
121
(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. 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. (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 accompanies 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
documents 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 authorization by the breeder of the 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 word “essentially derived variety” have
been substituted therein.
(8) When an essentially derived variety has been registered by
grounds of opposition
Registration of essentially derived variety
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Issue of
certificate of registration
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 the
seal of the Registry and send a copy thereof to the Authority and to
such other authority, as may be prescribed, for information.
CHAPTER
IV
DURATION AND EFFECT OF REGISTRATION AND BENEFIT
SHARING
24. (1) When an application for registration of a variety
(other than an essentially derived variety) has been accepted and
either -
(a) the application has not been opposed and the time of notice of opposition has expired; or
(b) the application has been opposed and the
opposition has been rejected,
the Registrar shall register the variety.
(2) On the registration of the variety (other than an
essentially derived variety), the Registrar shall issue to the applicant
a certificate of registration in the prescribed form and sealed with the seal of the Registry and send a copy thereof to the Authority for
denomination of benefit sharing and to such other authority, as may be prescribed, for information. The maximum time required by the Registrar for issuing the certificate of registration from the date
of filing of the application for registration of a variety shall be such as may be prescribed.
(3) Where registration of a variety (other than an essentially
derived variety), is not completed within twelve months from the date of the application by reason of default on the part of the
applicant, the Registrar may, after giving notice to the applicant in
the prescribed manner, treat the application as abandoned unless it
is completed within the time specified in that behalf in the notice.
(4) The Registrar may amend the Register or a certificate of
registration for the purpose of correcting a clerical error or an
obvious mistake.
(5) The Registrar shall have power to issue such directions to
protect the interests of a breeder against any abusive act committed
by any third party during the period between filing of application for
registration and decision taken by the Authority on such
application.
(6) The certificate of registration issued under this section or
sub-section (8) of section 23 shall be valid for nine years in the case
of trees and vines and six years in the case of other crops and may
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be reviewed and renewed for the remaining period on payment of
such fees as may be fixed by the rules made in this behalf subject to the condition that the total period of validity shall not exceed, -
(i) in the case of trees and vines, eighteen years from
the date of registration of the variety;
(ii) in the case of extant variety, fifteen years from the
date of the notification of that variety by the Central
Government under section 5 of the Seeds Act, 1966; and
(iii) in other cases, fifteen years from the date of
registration of the variety.
25. The Authority shall, within such intervals as it thinks
appropriate, publish the list of varieties which have been registered during that interval..
26. (1) On receipt of copy of the certificate of registration
under sub-section (8) of section 23 or sub-section (2) of section 24,
the Authority shall publish such contents of the certificate and
invite claims of benefit sharing to the variety registered under such
certificate in the manner as may be prescribed.
(2) On invitation of the claims under sub-section (1), any
person or group of persons or firm or governmental or non- governmental organization shall submit its claim of benefit sharing
too such variety in the prescribed form within such period, and accompanies with such fees, as may be prescribed :
Provided that such claim shall only be submitted by any –
(i) person or group of persons, if such person or every
person constituting such group is a citizen of India; or
(ii) firm or governmental or non-governmental
organization, if such firm or organization is formed or
established in India.
(3) On receiving a claim under sub-section (2), the Authority
shall send a copy of such claim to the breeder of the variety registered under such certificate and the breeder may, on receipt of
such copy, submit his opposition to such claim within such period
and in such manner as may be prescribed.
(4) The Authority shall, after giving an opportunity of being
heard to the parties, dispose of the claim received under sub-section
(2).
(5) While disposing of the claim under sub-section (4), the
Authority shall explicitly indicate in its order the amount of the benefit sharing, if any, for which the claimant shall be entitled and shall take into consideration the following matters, namely :-
Publication of list of varieties
Determination of benefit sharing by
Authority
124
(a) the extant and nature of the use of genetic material of
the claimant in the development of the variety relating to which the benefit sharing has been claimed.
(b) the commercial utility and demand in the market of
the variety relating to which the benefit sharing has been claimed.
(6) The amount of benefit sharing to a variety determined
under this section shall be deposited by the breeder of such variety
in the manner referred to in clause (a) of sub-section 45 in the
National Gene Fund.
(7) the amount of benefit sharing determined under this section shall, on a reference made by the Authority in the prescribed
manner, be recoverable as an arrear of land revenue by the District
Magistrate within whose local limits of jurisdiction the breeder liable
for such benefit sharing resides.
27. (1) The breeder shall be required to deposit such quantity
of seeds or propagating material including parental line seeds of
registered variety in the National Gene Bank as may be specified in
the regulations for reproduction purpose at the breeder’s expense
within such time as may be specified in that regulation.
(2) The seeds or propagating material or parental line seeds to
be deposited under sub-section (1) shall be deposited to the
National Gene Bank specified by the Authority.
28. (1) Subject to the other provisions of this Act, a certificate
of registration for a variety issued under this Act shall confer an
exclusive right on the breeder or his successor, his agent or licensee, to produce, sell, market, distribute, import or export the
variety :
Provided that in the case of an extant variety, unless a breeder
or his successor established his right, the Central Government, and in cases where such extant variety is notified for a State or for any
area thereof under section 5 of the Seed Act, 1966, the State Government, shall be deemed to be the owner of such right.
(2) A breeder may authorize any person to produce, sell,
market or otherwise deal with the variety registered under this Act
subject to such limitations and conditions as may be specified by
regulations.
(3) Every authorization under this section shall be in such
form as may be specified by regulations.
(4) Where an agent or a licensee referred to in sub-section (1)
becomes entitled to produce, sell, market, distribute, import or export a variety, he shall apply in the prescribed manner and with
the prescribed fees to the Registrar to register his title and the Registrar shall, on receipt of application and on proof of title to his satisfaction, register him as an agent or a licensee, as the case my
Breeder to deposit seeds or propagating
material
Registration to confer right
125
be, in respect of the variety for which he is entitled for such right,
and shall cause particulars of such entitlement and conditions or restrictions, if any, subject to which such entitlement is made, to be
entered in the Register :
Provided that when the validity of such entitlement is in
dispute between the parties, the Registrar may refuse to register the entitlement and refer the matter in the prescribed manner to the
Authority and withhold the registration of such entitlement until the right of the parties in dispute so referred to has been determined by the Authority.
(5) The Registrar shall issue a certificate of registration under
sub-section (4) to the applicant after such registration and shall enter in the certificate the brief conditions of entitlement, if any, in
the prescribed manner, and such certificate shall be the conclusive proof of such entitlement and the conditions or restriction thereof, if any.
(6) Subject to any agreement subsisting between the parties,
an agent or licensee of a right to a variety registered under sub-
section (4) shall be entitled to call upon the breeder or his successor thereof to take proceedings to prevent infringement thereof, and if
the breeder or his successor refuses or neglects to do so within
three months after being so called upon, such registered agent or
licensee may institute proceedings for infringement in his own name
as if he were the breeder, making the breeder or his successor a defendant.
(7) Notwithstanding anything contained in any other law, a
breeder or his successor so added as defendant shall not be liable
for any costs unless he enters an appearance and takes part in the
proceedings.
(8) Nothing in this section shall confer on a registered agent
of registered licensee of a variety any right to transfer such right
further thereof.
(9) Without prejudice to the registration under sub-section (4),
the terms of registration -
(a) may be varied by the Registrar as regards the variety in respect of which, or any condition or restriction subject to
which, it has effect on receipt of an application in the
prescribed manner of the registered breeder of such variety
for his successor;
(b) may be cancelled by the Registrar on the application in
the prescribed manner of the registered breeder of such
variety or his successor or of the registered agent or registered licensee of such variety;
(c) may be cancelled by the Registrar on the application in
the prescribed manner of any person other than the breeder,
his successor, the registered agent or the registered licensee or
126
any of the following grounds, namely :-
(i) that the breeder of a variety or his successor or
the registered agent or registered licensee of such variety, misrepresented, or failed to disclose, some fact material to the application for registration under sub-section (4) which if accurately represented or disclosed would have justified the refusal of the application for registration of the registered agent or registered licensee;
(ii) that the registration ought not to have been
effected having regard to the right vested in the applicant by virtue of a contract in the performance of which he is
interested;
(d) may be cancelled by the Registrar on the
application in the prescribed manner of the breeder of a registered variety or his successor on the ground that any
stipulation in the agreement between the registered agent or the registered licensee, as the case may be, and such
breeder or his successor regarding the variety for which such agent or licensee is registered is not being enforced or is not being complied with;
(e) may be cancelled by the Registrar on the
application of any person in the prescribed manner on the ground that the variety relating to the registration is no longer existing.
(10) The Registrar shall issue notice in the prescribed manner
of every application under this section to the registered breeder of a variety or his successor and to each registered agent or registered
licensee (not being the applicant) of such variety.
(11) The Registrar shall, before making any order under sub-
section (9), forward the application made in that behalf along with
any objection received by any party after notice under sub-section
(10) for the consideration of the Authority, and the Authority may, after making such inquiry as it thinks fit, issue such directions to the Registrar as it thinks fit and the Registrar shall dispose of the application in accordance with such directions.
29. (1) Notwithstanding anything contained in this Act, no
registration of a variety shall be made under this Act in cases where
prevention of commercial exploitation of such variety 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.
(2) The Central Government shall, by notification in the
Official Gazette, specify the genera or species for the purposes of
registration of varieties other than extant varieties and farmers’
varieties under this Act.
(3) Notwithstanding anything contained in sub-section (2) and
sub-sections (1) and (2) of section 15, no variety of any genera or
Exclusion of
certain
varieties.
127
Special
provisions relating to application for registration from
citizens of convention countries
species which involves any technology which is injurious to the life or health of human beings, animals or plants shall be registered
under this Act.
Explanation - For the purposes of this sub-section, the
expression “any technology” includes genetic use restriction technology and terminator technology.
(4) The Central Government shall not delete any genera or
species from the list of genera or species specified in a notification
issued under sub-section (2) except in the public interest.
(5) Any variety belonging to the genera or species excluded
under sub-section (4) shall not be eligible for any protection under
this Act.
30. Nothing contained in this Act shall prevent -
(a) the use of any variety registered under this Act by
any person using such variety for conducting experiment or
research; or
(b) the use of a variety by any person as an initial source
of variety for the purpose of creating other varieties;
Provided that the authorization of the breeder of a registered
variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly developed variety.
31. (1) With a view to the fulfillment of a treaty, convention
or arrangement with any country outside India which affords to
citizens of India similar privileges as granted to its own citizens, the Central Government may, by notification in the Official Gazette,
declare such country to be a convention country for the purposes of
this Act.
(2) Where a person has made an application for the granting
of a breeder’s rights to a variety or for entering such variety in the
official register of varieties in a convention country and that person, or any person entitled to make application on his behalf under
section 14 or section 23, makes an application for the registration of
such variety in India within twelve months after the date on which
the application was made in the convention country, such variety
shall, if registered under this Act, be registered as of the date on which the application was made in the convention country and that
date shall be deemed for the purposes of this Act to be the date of
registration.
(3) Where applications have been made for granting of a
breeder’s right to a variety, or for entering such variety in the official
register of varieties in two or more convention countries, the period of twelve months referred to in sub-section (2) shall be reckoned
from the date on which the earlier or earliest of those applications were made.
Researcher’s
rights
128
Provisions as to
reciprocity
Surrender of
certificate of registration
Revocation of
protection on certain grounds
(4) Nothing in this Act shall entitle the breeder of a
registered variety for infringement or rights other than protected
under this Act which took place prior to the date of application of
registration under this Act.
32. Where any country declared by the Central Government
in this behalf by notification in the Official Gazette under sub- section (1) of section 31 does not accord to citizens of India the
same rights in respect of the registration and protection of a variety, as it accords to its own nationals, no national of such country shall be entitled, either solely or jointly with any other person, to apply
for the registration of a variety or be entitled to get a variety registered under this Act.
CHAPTER
V
SURRENDER AND REVOCATION OF CERTIFICATE AND
RECTIFICATION AND CORRECTION OF REGISTER
33. (1) A breeder of a variety registered under this Act may, at
any time by giving notice in the prescribed manner to the Registrar
offer to surrender his certificate of registration.
(2) Where such an offer is made, the Registrar shall notify in
the prescribed manner every registered agent or registered licensee
relating to such certificate.
(3) Any of such agent or licensee may, within the prescribed
period after such notification, give notice to the Registrar or his
opposition to the surrender and where any such notice is given, the
Registrar shall intimate the contents of such notice to the breeder of such variety.
(4) If the Registrar is satisfied after hearing the applicant and
all the opponents, if desirous of being heard, that the certificate of registration may properly be surrendered, he may accept the offer and by order revoke the certificate of registration.
34. Subject to the provisions contained in this Act, the
protection granted to a breeder in respect of a variety may, on the
application in the prescribed manner of any person interested, be
revoked by the Authority on any of the following grounds, namely :-
(a) that the grant of the certificate of registration has
been based on incorrect information furnished by the applicant;
(b) that the certificate of registration has been granted to
a person who is not eligible for protection under this Act;
(c) that the breeder did not provide the Registrar with
such information, documents or material as required for registration under this Act;
129
(d) that the breeder has failed to provide an alternative
denomination of the variety which is the subject matter of the
registration to the Registrar in case where the earlier
denomination of such variety provided to the Registrar is not permissible for registration under this Act;
(e) that the breeder did not provide the necessary seeds or
propagating material to the person to whom compulsory
licence has been issued under section 47 regarding the
variety in respect of which registration certificate has been
issued to such breeder;
(f) that the breeder has not complied with the provisions
of this Act or rules or regulations made thereunder;
(g) that the breeder has failed to comply with the
directions of the Authority issued under this Act;
(h) that the grant of the certificate of registration is not in
the public interest :
Provided that no such protection shall be revoked unless the
breeder is given a reasonable opportunity to file objection and of
being heard in the matter.
35. (1) the Authority may, with the prior approval of the
Central Government, by notification in the Official Gazette, impose a fee to be paid annually, by every breeder of a variety, agent and
licensee thereof registered under this Act determined on the basis of benefit or royalty gained by such breeder, agent or licensee, as the case may be, in respect of the variety, for the retention of their
registration under this Act.
(2) If a breeder, agent or licensee fails to deposit the fee
referred to in sub-section (1) imposed upon him under that sub- section in the prescribed manner up to two consecutive years, the
Authority shall issue notice to such breeder, agent or licensee and on service of such notice if he fails to comply with the direction in the notice, the Authority shall declare all the protection admissible
under the registration certificate issued to such breeder or agent or licensee forfeited.
(3) the arrears of the fee imposed under sub-section (1) shall
be deemed to be the arrears of land revenue and shall be
recoverable accordingly.
36. (1) On an application made in the prescribed manner to
the Registrar by any person aggrieved, the Registrar may make such order as he may think fit for canceling or changing any certificate of registration issued under this Act on the ground of any
contravention of the provisions of this Act or failure to observe a condition subject to which such registration certificate is issued.
(2) Any person aggrieved by the absence or omission from the
Payment of annual fees and forfeiture
of registration in default
thereof
Power to
cancel or change registration
and to rectify the Register.
130
Alteration of denomination of a registered
variety.
Register of any entry, or by any entry made in the Register without
sufficient cause, or by any entry wrongly remaining on the Register,
may apply in the prescribed manner to the Registrar and the Registrar may make such order for making, expunging or varying
the entry as he may think fit.
(3) The Registrar may, in any proceeding under this section,
decide any question that may be necessary or expedient to decide in
connection with the rectification of the Register.
(4) The Registrar on his own motion may, after giving notice in the prescribed manner to the parties concerned and after giving
them an opportunity of being heard, make any order referred to in
sub-section (1) or sub-section (2).
37.(1) The Registrar may, on an application in the prescribed
manner by the breeder of a variety registered under this Act, -
(a) correct any error in the Register in the name,
address of description of such breeder of any other entry
relating to such variety;
(b) enter to the Register any change in the name,
address or description or such breeder;
(c) cancel the entry in the Register of the variety in
respect of which such application is made; and may make
any consequential amendment or alteration in the certificate of registration and for that purpose require the certificate of registration to be produced to him.
(2) The Registrar may, on application made in the prescribed
manner by a registered agent or a registered licensee of a variety
and after notice to the registered breeder of such variety, correct any
error or enter any change, in the name, address or description of such registered agent or registered licensee, as the case may be, in
the Register or certificate of registration issued under this Act.
38. (1) The breeder of a variety registered under this Act
may apply in the prescribed manner to the Registrar to delete any part or to add to or alter the denomination on such variety in any manner not substantially affecting the identity thereof, and the
Registrar may refuse leave or may grant it on such terms and subject to such limitations as he may think fit to avoid any conflict
with the rights of other breeders of the varieties registered under this Act.
(2) The Registrar may cause an application under this
section to be advertised in the prescribed manner in any case where
it appears to him that it is expedient so to do, and where he does so, if within the prescribed time from the date of the advertisement any person gives notice to the Registrar in the prescribed manner of
opposition to the application, the Registrar shall, after hearing the parties if so required, decide the matter.
Correction of Register.
131
Farmers’ rights.
(3) Where leave is granted under this section, the
denomination of the variety as altered shall be advertised in the
prescribed manner, unless the application has already been
advertised under sub-section (2).
CHAPTER VI
FARMERS’ RIGHTS
39. (1) Notwithstanding anything contained in this Act, -
(i) a farmer who has bred or developed a new variety
shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act;
(ii) the farmers’ variety shall be entitled for registration
if the application contains declaration as specified in clause
(h) of sub-section (1) of section 18;
(iii) a farmer who is engaged in the conservation of
genetic resources of land races and wild relatives of
economic plants and their improvement through selection
and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund.
Provided that material so selected and preserved has
been used as donors of genes in varieties registrable under
this Act;
(iv) a farmer shall be deemed to be entitled to save, use,
sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the
same manner as he was entitled before the coming into
force of this Act :
Provided that the farmer shall not be entitled to sell
branded seed of a variety protected under this Act.
Explanation : For the purposes of clause (iv), “branded seed”
means any seed put in a package or any other container and labeled
in a manner indicating that such seed is of a variety protected
under this Act.
(2) Where any propagating material of a variety registered
under this Act has been sold to a farmer or a group of farmers of
any organization of farmers, the breeder of such variety shall
disclose to the farmer or the group of farmers or the organization of
farmers, as the case may be, the expected performance under given conditions, and if such propagating material fails to provide such
performance under such given conditions, the farmer or the group
of farmers or the organization of farmers, as the case may be, may
claim compensation in the prescribed manner before the Authority
and the Authority, after giving notice to the breeder of the variety and after providing him an opportunity to file opposition in the
132
and after providing him an opportunity to file opposition in the
prescribed manner and after hearing the parties, may direct the
breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organization of farmers, as
the case may be.
40. (1) A breeder or other person making application for
registration of any variety under Chapter III shall disclose in the
application the information regarding the use of genetic material
conserved by any tribal or rural families in the breeding or
development of such variety.
(2) If the breeder or such other person fails to disclose any
information under sub-section (1), the Registrar may, after being
satisfied that the breeder or such person has willfully and
knowingly concealed such information, reject the application for registration.
41. (1) Any person or group of persons (whether actively
engaged in farming or not) or any governmental or non-
governmental organization may, on behalf of any village or local
community in India, file in any centre notified, with the previous
approval of the Central Government, by the Authority, in the Official Gazette, any claim attributable to the contribution of the people of
that village or local community, as the case may be, in the evolution
or any variety for the purpose of staking a claim on behalf of such
village or local community.
(2) Where any claim is made under sub-section (1), the
centre notified under that sub-section may verify the claim made by
such person or group of persons or such governmental or non- governmental organization in such manner as it deems fit, and if it is satisfied that such village or local community has contributed
significantly to the evolution of the variety which has been registered under this Act, it shall report its findings to the Authority.
(3) When the authority, on a report under sub-section (2) is
satisfied, after such inquiry as it may deem fit, that the variety with which the report is related has been registered under the provisions
of this Act, it may issue notice in the prescribed manner to the
breeder of that variety and after providing opportunity to such
breeder to file objection in the prescribed manner and of being
heard, it may subject to any limit notified by the Central
Government, by order, grant such sum of compensation to be paid to a person or group of persons or governmental or non-
governmental organization which has made claim under sub-section
(1), as it may deem fit.
(4) Any compensation granted under sub-section (3) shall
be deposited by the breeder of the variety in the Gene Fund.
(5) The compensation granted under sub-section (3) shall
be deemed to be an arrear of land revenue and shall be recoverable by the Authority accordingly.
Certain information to be given in application for
registration.
Rights of communities.
Protection of
133
Authorization of farmers’ variety
Exemption from
fees.
Gene Fund
42. Notwithstanding anything contained in this Act, -
(i) a right established under this Act shall not be
deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right; and
(ii) a relief which a court may grant in any suit for
infringement referred to in section 65 shall not be granted
by such court, nor any cognizance of any offence under this
Act shall be taken, for such infringement by any court
against a farmer who proves, before such court, that at the time of the infringement he was not aware of the existence
of the right so infringed.
43. Notwithstanding anything contained in sub-section (6)
of section 23 and section 28, where an essentially derived variety is derived from a farmers’ variety, the authorization under sub-section
(2) of section 28 shall not be given by the breeder of such farmers’ variety except with the consent of the farmers or group of farmers or
community of farmers who have made contribution in the
preservation or development of such variety.
44. A farmer or group of farmers or village community shall
not be liable to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made thereunder.
45. (1) The Central Government shall constitute a Fund to
be called the National Gene Fund and there shall be credited thereto –
(a) the benefit sharing received in the prescribed
manner from the breeder of a variety or an essentially
derived variety registered under this Act, or propagating material of such variety or essentially derived variety, as the
case may be;
(b) the annual fee payable to the Authority by way of
royalty under sub-section (1) of section 35;
(c) the compensation deposited in the Gene Fund
under sub-section (4) of section 41;
(d) the contribution from any national and
international organization and other sources.
(2) The Gene Fund shall, in the prescribed manner, be
applied for meeting -
(a) any amount to be paid by way of benefit sharing
under sub-section (5) of section 26;
innocent infringement.
134
Framing of
schemes, etc.
(b) the compensation payable under sub-section (3) of
section 41;
(c) the expenditure for supporting the conservation
and sustainable use of genetic resources including in-situ and ex-situ collections and for strengthening the capability
of the Panchayat in carrying out such conservation and
sustainable use;
(d) the expenditure of the scheme relating to benefit
sharing framed under section 46.
46. (1) The Central Government shall, for the purposes of
section 41 and clause (d) of sub-section (2) of section 45, frame, by notification in the Official Gazette, one or more schemes.
(2) In particular, and without prejudice to the generality of
the provisions of sub-section (1), the scheme may provide for all or
any of the following matters, namely :-
(a) the registration of the claims for the purposes of
section 41 under the scheme and all matters connected
with such registration;
(b) the processing of such claims for securing their
enforcement and matters connected therewith;
(c) the maintenance of records and registers in respect
of such claims;
(d) the utilization, by way of disbursal (including
apportionment) or otherwise, of any amounts received in
satisfaction of such claims;
(e) the procedure for disbursal or apportionment by the
Authority in the event of dispute regarding such claims;
(f) the utilization of benefit sharing for the purposes
relating to breeding, discovery or development of varieties;
(g) the maintenance and audit of accounts with respect
to the amounts referred to in clause (d).
CHAPTER VII
COMPULSORY LICENCE
47. (1) At any time, after the expiry of three years from the date of issue of a certificate of registration of a variety, any person interested may make an application to the Authority alleging that
the reasonable requirements of the public for seed or other
propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available
to the public at a reasonable price and pray for thee grant of a
compulsory licence to undertake production, distribution and sale
Power of Authority to make order
for compulsory licence in
certain circumstances
135
compulsory licence to undertake production, distribution and sale of the seed or other propagating material of that variety.
(2) Every application under sub-section (1) shall contain a
statement of the nature of the applicant’s interest together with such particulars as may be prescribed and the facts upon which the
application is based.
(3) The Authority, after consultation with thee Central Government, and if satisfied after giving an opportunity to the
breeder of such variety to file opposition and after hearing the
parties, on the issue that the reasonable requirements of the public
with respect to the variety have not been satisfied or that the seed
or other propagating material of the variety is not available to the public at a reasonable price, may order such breeder to grant a
licence to the applicant upon such terms and conditions as it may
deem fit and send a copy of such order to the Registrar to register
the title of such applicant as licensee under sub-section (4) of
section 28 on payment of such fees by the applicant as is referred
to in that sub-section.
48. In determining the question as to whether the
reasonable requirement of the public for seeds of a variety or its
propagating material as referred to in sub-section (1) or sub-section (3) of section 47, the Authority shall take into account-
(i) the nature of the variety, the time which ha elapsed
since the grant of the certificate of registration of the variety, price of the seed of the variety and the measures taken by the breeder or any registered licensee of the variety to meet the
requirement of the public; and
(ii) the capacity, ability and technical competence of the
applicant to produce and market the variety to meet the requirement of the public.
49. (1) If the breeder of a variety registered under this Act
in respect of which any application has been pending before the
Authority under section 47 makes a written request to the Authority on the ground that due to any reasonable factor, such breeder has
been unable to produce seed or other propagating material of the
variety on a commercial scale to an adequate extent till the date of
making such request, the Authority may, on being satisfied that the
said ground is reasonable, adjourn the hearing of such application for such period not exceeding twelve months in aggregate as it may
consider sufficient for optimum production of the seed or
propagating material of such variety, as the case may be, by such
breeder.
(2) No adjournment of the application under sub-section (1)
shall be granted unless the Authority is satisfied that the breeder of
the variety registered under this Act in respect of which such application is made, has taken immediate measures to meet the
reasonable requirements of the public for the seed or other propagating material of such variety.
When
requirement
of public deemed to
have not been satisfied.
Adjournment of application
for grant of compulsory licence.
136
Authority to settle terms and conditions of
licence.
Revocation of compulsory licence.
Modification of compulsory licence.
50. The Authority shall determine the duration of the compulsory licences granted under this Chapter and such duration may vary from case to case keeping in view the gestation periods and other relevant factors but in any case it shall not exceed the total remaining period of the protection of that variety and when a compulsory licence is granted thee prescribed authority shall, in the prescribed manner make available to the licensee of such compulsory licence, the reproductive material of the variety relating to such compulsory licence stored in the National Gene Bank or any other centre.
51. (1). The Authority shall, while determining the terms
and conditions of a compulsory licence under the provisions of this
Chapter, endeavour to secure-
(i) reasonable compensation to the breeder of the variety
relating to the compulsory licence having regard to the nature of the variety, the expenditure incurred by such breeder in breeding the variety or for developing it, and other relevant factors;
(ii) that the compulsory licensee of such variety
possesses the adequate means to provide to the farmers, the
seeds or other propagating material of such variety, timely
and at reasonable market price.
(2) No compulsory licence granted by the Authority shall
authorize the licensee to import the variety relating to such licence or any seed or other propagating material of such variety from abroad where such import would constitute an infringement of the rights of the breeder of such variety.
52. (1) The Authority, on its own motion or on application
from an aggrieved person made to it in the prescribed form, if it is
satisfied that a compulsory licensee registered under this Chapter has violated any terms or conditions of his licence or it is not appropriate to continue further such licence in public interest, may,
after giving such licensee an opportunity to file opposition and of being heard, make order to revoke such licence.
(2) When a licence is revoked under sub-section (1) by an
order of the Authority, the Authority shall send a copy of such order
to the Registrar to rectify the entry or correct the Register relating to such revocation and the Registrar shall rectify the entry or correct
the Register accordingly.
53. the Authority may, on its own motion or on
application from the licensee of a compulsory licence, after
providing the opportunity of being heard to the breeder of the variety registered under this Act relating to such compulsory
licence, it if considers, in public interest, so to do, modify, by order, such terms and conditions as it thinks fit and send a copy of such order to the Registrar to correct the entries and Register according
to such modification and the Registrar shall ensure such
Duration of compulsory licence.
137
Tribunal
Composition of
Tribunal.
corrections to be made accordingly.
CHAPTER
VIII
Plant Varieties Protection Appellate Tribunal
54. The Central Government may by notification in the
Official Gazette, establish a Tribunal to be known as the Plant Varieties Protection Appellate Tribunal to exercise the jurisdiction,
powers and authority conferred on it by or under this Act.
55. (1) The Tribunal shall consist of a Chairman and such
number of Judicial Members and Technical Members as the Central
Government may deem fit to appoint.
(2) A Judicial Member shall be a person who has for at least ten years held a judicial office in the territory of India or who has been a member of the Indian Legal Service and has held a post in
Grade-II of that Service or any equivalent or higher post for at least three years or who has been an advocate for at least twelve years.
Explanation – For the purposes of this sub-section –
(i) in computing the period during which a person has
held judicial office in the territory of India, there shall be
included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a tribunal or any post, under the
Union or a State, requiring special knowledge of law;
(ii) in computing the period during which a person has
been an advocate, there shall be included any period during
which the person has held judicial office or the office of a
member of a tribunal or any post, under the Union or a State,
requiring special knowledge of law after he became an advocate.
(3) A Technical Member shall be a person who is an eminent
agricultural scientist in the field of plant breeding and genetics and possesses an experience of at least twenty years to deal with plant
variety or seed development activity, or who has held the post in the Central Government or a State Government dealing with plant
variety or seed development equivalent to the Joint Secretary to the Government of India for at least three years and possesses special
knowledge in the field of plant breeding and genetics.
(4) The Central Government shall appoint a Judicial Member
of the Tribunal to be the Chairman thereof.
(5) The Central Government may appoint one of the Members
of the Tribunal to be the senior Member thereof.
(6) The senior Member or a Member shall exercise such of the
powers and perform such of the functions of the Chairman as may
be delegated to him by the Chairman by a general or special order in
138
writing.
56. (1) An Appeal shall be preferred to the Tribunal within
the prescribed period from any –
(a) order or decision of the Authority or Registrar,
relating to registration of a variety; or
(b) order or decision of the Registrar relating to
registration as an agent or a licensee of a variety; and
(c) order or decision of the Authority relating to claim
for benefit sharing; or
(d) order or decision of the Authority regarding
revocation of compulsory licence or modification of
compulsory licence; or
(e) order or decision of the Authority regarding payment of compensation, made under this Act or the rules
made thereunder.
(2) Every such appeal shall be preferred by a petition in
writing and shall be in such form and shall contain such particulars
as may be prescribed.
(3) The Tribunal in disposing of an appeal under this section
shall have the power to make any order which the Authority or the
Registrar could make under this Act.
57. (1) The Tribunal may, after giving both the parties to the
appeal an opportunity of being heard, pass such orders thereon as
it thinks fit.
(2) The Tribunal may, at any time within thirty days from
the date of the order, with a view to rectifying the mistake apparent
from the record, amend any order passed by it under sub-section
(1), and make such amendment if thee mistake is brought to its
notice by the appellant or the opposite party.
(3) In every appeal, the Tribunal may, where it is possible,
hear and decide such appeal within a period of one year from the date of filing of the appeal.
(4) The Tribunal shall send a copy of any order passed
under this section to the Registrar.
(5) The orders of the Tribunal under this Act shall be
executable as a decree of a civil court.
58. (1) The powers and functions of the Tribunal may be
executed and discharged by Benches constituted by the Chairman
of the Tribunal from among the Members thereof.
(2) A Bench shall consist of one Judicial Member and one
Appeal to
Tribunal.
Orders of
Tribunal
Procedure of Tribunal.
139
Transitional provision.
Technical Member.
(3) If the Members of a Bench differ in opinion on any point,
they shall state the point or points on which they differ, and the
case shall be referred to the Chairman for hearing on such point or points by one or more of the other Members and such point or
points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.
(4) Subject to the provisions of this Act, the Tribunal shall
have power to regulate it own procedure and the procedure of
Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at
which thee Benches shall hold their sittings.
(5) The Tribunal shall, for the purpose of discharging its
functions, have all the powers which are vested in the Registrar under section 11, and any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections
193 and 228 and for the purpose of section 196 of the Indian Penal Code, and the Tribunal shall be deemed to be a civil court for all the
purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(6) Not withstanding anything contained in any other
provisions of this Act or in any other law for the time being in force,
no interim order (whether by way of injunction or stay or any other
manner) shall be made on, or in, any proceedings relating to an
appeal unless-
(a) copies of such appeal and of all documents in
support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to
be made; and
(b) opportunity is given to such party to be heard in
the matter.
59. Notwithstanding anything contained in this Act, till the
establishment of the Tribunal under section 54, the Intellectual
Property Appellate Board established under section 83 of thee Trade Marks Act, 1999 shall exercise the jurisdiction, powers and
authority conferred on the Tribunal under this Act subject to the modification that in any Bench of such Intellectual Property Appellate Board constituted for the purposes of this section, for the
Technical Member referred to in sub-section (2) of section 84 of the said Trade Marks Act, the Technical Member shall be appointed
under this Act and he shall be deemed to be the Technical Member for constituting the Bench under the said sub-section (2) of section 84 for the purposes of this Act.
45 of 1860.
2 of 1974.
47 of 1999
140
Grants by Central Government
Authority Fund
CHAPTER IX
FINANCE, ACCOUNTS AND AUDIT
60. The Central Government may, after due appropriation
made by Parliament by law in this behalf, make to the Authority
grants and loans of such sums of money as the Central Government may think fit for being utilized for the purposes of this Act.
61. (1) There shall be constituted a fund to be called the
Protection of Plant Varieties Authority Account and there shall be
credited thereto –
(a) all grants and loans made to the Authority by the
Central Government under secti0n 60;
(b) all fees received by the Authority and the
Registrars except the annual fee determined on the basis of
benefit or royalty under sub-section (1) of section 35;
(c) all sums received by the Authority from such
other sources as may be decided upon the Central Government.
(2) The Protection of Plant Varieties Authority Account shall
be applied for meeting -
(a) the salaries, allowances and other remuneration
of the Chairperson, officers and other employees of the Authority and allowances, if any, payable to the members;
(b) the other expenses of the Authority in connection
with the discharge or its functions and for purposes of this Act.
62. (1) The Authority shall prepare a budget, maintain
proper accounts and other relevant records (including the accounts
and other relevant records of the Gene Fund) and prepare an annual statement of accounts in such form as may be prescribed by
the Central Government in consultation with the Comptroller and
Auditor-General of India.
(2) The accounts of the Authority shall be audited by the
Comptroller and Auditor-General of India at such intervals as may
be specified by him and any expenditure incurred in connection with such audit shall be payable by the Authority to the Comptroller and Auditor-General of India.
(3) The Comptroller and Auditor-General of India and any
other person appointed by him in connection with the audit of the
accounts of the Authority shall have the same rights and privileges and authority in connection with such audit as the Comptroller and
Auditor-General of India generally has in connection with the audit
of the Government accounts and, in particular, shall have the right
Budget, accounts and
audit.
141
to demand the production of books, accounts, connected vouchers
and other documents and papers and to inspect any of the offices of the Authority.
(4) The accounts of the Authority as certified by the
Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report
thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.
63. The Chairperson shall exercise such financial and
administrative powers over the functions of the Authority as may be prescribed :
Provided that the Chairperson shall have the authority to
delegate such his financial and administrative powers as he may
think fit to a member or any other officer of the Authority subject to the condition that the member or such other officer shall, while exercising such delegated powers, continue to be under the
direction, control and supervision of the Chairperson.
CHAPTER X
INFRINGEMENT, OFFENCES, PENALTIES AND PROCOEDURE
64. Subject to the provisions of this Act, a right established
under this Act is infringed by a person –
(a) who, not being the breeder of a variety registered
under this Act or a registered agent or a registered licensee of that variety, sells, exports, imports or produces such variety without the permission of its breeder or within the scope of a registered licence or registered agency without permission of the registered licensee or registered agent, as the case may be;
(b) who uses, sells, exports, imports or produces
any other variety giving such variety, the denomination
identical with or deceptively similar to the denomination of a variety registered under this Act in such manner as to
cause confusion in the mind of general people in identifying
such variety so registered.
65. (1) No suit –
(a) for the infringement of a variety registered under
this Act; or
(b) relating to any right in a variety registered under
this Act,
shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit..
Financial and administrative powers of
Chairperson.
Infringement.
Suit for infringement, etc.
142
Relief in suits
for infringement
Opinion of scientific adviser
Prohibition to apply denomination of
a registered variety.
(2) For the purposes of clause (a) and (b) of sub-section
(1), “District Court having jurisdiction” shall mean the District Court
within the local limits of whose jurisdiction the cause of action
arises.
66. (1) The relief which a court may grant in any suit for
infringement referred to in section 65 includes an injunction and at
the option of the plaintiff, either damages or a share of the profits.
(2) The order of injunction under sub-section (1) may
include an ex parte injunction or any interlocutory order for any of
the following matters, namely :-
(a) discovery of documents;
(b) preserving of infringing variety or documents or
other evidence which are related to the subject matter of the
suit;
(c) attachment of such property of the defendant which the court deems necessary to recover damages, costs or other pecuniary remedies which may be finally awarded
to the plaintiff.
67. (1) When the court has to form an opinion upon any
question of fact or a scientific issue, such court may appoint an
independent scientific adviser to suggest it or to inquire into and
report upon the matter to enable it to form the desired opinion.
(2) The scientific adviser may be paid such remuneration
or expenses as the court may fix.
Offences, penalties and procedure
68. (1) No person other than the breeder of a variety
registered under this Act or a registered licensee or a registered
agent thereof shall use the denomination of that variety in the
manner as may be prescribed.
(2) A person shall be deemed to apply the denomination of a
variety registered under this Act who -
(a) applies it to the variety itself; or
(b) applies it to any package in or with which the
variety is sold, or exposed for sale, or had in possession such package for sale or for any purpose of trade or production; or
(c) places, encloses or annexes the variety which is
sold, or exposed for sale, or had in possession for sale or for any purpose of trade or production, in or with any package or other thing to which the denomination of such variety
registered under this Act has been applied; or
143
Meaning of falsely applying denomination of
a registered variety.
(d) uses the denomination of such variety registered
under this Act in any manner reasonably likely to lead to
the belief that the variety or its propagating material in
connection with which it is used is designated or described by that denomination; or
(e) in relation to the variety uses such denomination
in any advertisement, invoice, catalogue, business letter,
business paper, price list or other commercial document
and such variety is delivered to a person in pursuance of a
request or order made by reference to the denomination as
so used.
(3) A denomination shall be deemed to be applied to a
variety whether it is woven in, impressed on, or otherwise worked into, or annexed or affixed to, such variety or to any package or other thing.
69. (1) A person shall be deemed to falsely apply the
denomination of a variety registered under this Act who, without the
assent of the breeder of such variety, -
(a) applies such denomination or a deceptively similar
denomination to any variety or any package containing
such variety;
(b) uses any package bearing a denomination which is
identical with or deceptively similar to the denomination of such variety registered under this Act, for the purpose of
packing, filing or wrapping therein any variety other than such variety registered under this Act.
(2) Any denomination of a variety registered under this Act
falsely applied as mentioned in sub-section (1), is in this Act
referred to as false denomination.
(3) In any prosecution for falsely applying a denomination
of a variety registered under this Act the burden of providing the
assent of the breeder of such variety shall lie on the accused.
70. (1) any person who –
(a) applies any false denomination to a variety; or
(b) indicates the false name of a country or place or
false name and address of the breeder of a variety registered under this Act in the course of trading such variety,
shall unless he proves that he acted, without intend to defraud, be punishable with imprisonment for a term which shall not be less
than three months but which may extend to two years, or with fine which shall not be less than fifty thousand rupees but which may
extend to five lakh rupees, or with both.
Penalty for applying false denomination, etc.
144
No offence in certain cases
71. Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or production or any variety to which any false denomination is applied or to which an indication of the country or place in which such variety was made or produced or the name and address of the breeder of such variety registered under this Act has been falsely made, shall, unless he proves -
(a) that having taken all reasonable precautions
against committing an offence against this section, he had
at the time of commission of the alleged offence no reason to suspect the genuineness of the denomination of such variety or that any offence had been committed in respect
of indication of the country or place in which such variety registered under this Act, was made or produced or the
name and address of the breeder of such variety;
(b) that, on demand by or on behalf of the
prosecutor, he gave all the information in his possession
with respect to the person from whom he obtained such
variety; or
(c) that otherwise he had acted innocently,
be punishable with imprisonment for a term which shall not be less
than six months but which may extend to two years, or with fine
which shall not be less than fifty thousand rupees but which may
extend to five lakh rupees, or with both.
72. Whoever makes any representation with respect to the
denomination of a variety or its propagating material or essentially derived variety or its propagating material not being variety or its
propagating material or essentially derived variety or its propagating
material registered under this Act, to the effect that it is a variety or
its propagating material or essentially derived variety or its
propagating material registered under this Act or otherwise
represents any variety, or its propagating material, or essentially derived variety or its propagating material not registered under this
Act to the effect that it is registered under this Act shall be
punishable with imprisonment for a term, which shall not be less
than six months but which may extend to three years, or with the
fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with both.
73. Whoever having already been convicted of an offence
under this Act is again convicted of such offence shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than one year but which may extend to three years, or with fine which shall not be less than two lakh rupees but which may extend to twenty lakh rupees, or with both.
74. The provisions of this Act relating to offences shall be
subject to the right created as recognized by this Act and no act or
omission shall be deemed to be an offence under the provisions of
Penalty for selling varieties to
which false denomination is applied, etc.
Penalty for
falsely representing a variety as registered.
Penalty for
subsequent offence.
145
Exemption of
certain persons employed in ordinary course
of business.
Procedure where invalidity of registration is
pleaded by the accused.
Offences by companies.
this Act if such act or omission is permissible under this Act.
75. Where a person accused of an offence under this Act
proves that in the ordinary course of his employment, he has acted
without any intention to commit the offence and having taken all reasonable precautions against committing the offence charged, he had, at the time of the commission of the alleged offence, no reason
to suspect the genuineness of the act so charged as an offence and on demand made by or on behalf of the prosecutor, he gave all the
information in his possession with respect to the persons on whose behalf the offence was committed, he shall be acquitted.
76. (1) Where the offence charged under this Act is in
relation to a variety or its propagating material or essentially derived
variety or its propagating material registered under this Act and the
(2) If the accused proves to the court that he had made
such application within the time so limited or within such further time as the court for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such
application for rectification.
(3) If within a period of three months or within such
extended time as may be allowed by the court, the accused fails to
apply to the Registrar for rectification of the Register, the court shall
proceed with the case as if the registration were valid.
(4) Where before institution of a complaint of an offence
referred to in sub-section (1), any application for the rectification of the Register concerning the registration of the variety or its
propagating material or essentially derived variety or its propagating
material, as the case may be, in question on the ground of invalidity
of such registration has already been properly made to and is
pending before the Registrar, the court shall stay the further proceedings in the prosecution pending the disposal of the
application aforesaid and shall determine the charge against the
accused in conformity with the result of the application for
rectification.
77. (1) If the person committing an offence under this Act is
a company, the company as well as every person in charge of, and
responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished
accordingly.
Provided that nothing contained in this sub-section shall
render any such person liable to any punishment, if he proves that
the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such
offence.
(2) Notwithstanding anything contained in sub-section (1),
here an offence under this Act has been committed by a company
and it is proved that the offence has been committed with the
146
consent or connivance of, or that the commission of the offence is
attributable to any neglect on the part of any director, manager,
secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that
offence and shall be liable to be proceeded against and punished
accordingly.
Explanation - For the purposes of this section –
(a) “company” means any body corporate and
includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner
in the firm.
CHAPTER
XI
MISCELLANEOUS
78. Notwithstanding anything contained in this Act, the
Authority or the Registrar shall -
(a) not disclose any information relating to the
registration of a variety or any application relating to the registration of a variety under this Act, which it considers
prejudicial to the interest of the security of India; and
(b) take any action regarding the cancellation of
registration of such varieties registered under this Act
which the Central Government may by notification in the
Official Gazette specify in the interest of the security of
India.
Explanation - For the purposes of this section, the
expression “security of India” means any action necessary for the
security of India which relates to the use of any produce of any
variety registered under this Act directly or indirectly for the
purposes of war or military establishment or for the purposes of war
or other emergency in international relations.
79. Where a denomination of a variety or its propagating
material or essentially derived variety or its propagating material
registered under this Act has been applied to the variety or its
propagating material or essentially derived variety or its propagating material, as the case may be, on sale or in the contract for sale of
such variety or its propagating material or essentially derived variety
or its propagating material, as the case may be, the seller shall be
deemed to warrant that the denomination is a genuine
denomination and not falsely applied, unless the contrary is expressed in writing signed by or on behalf of the seller and
delivered at the time of the sale of the variety or its propagating
material or essentially derived variety or its propagating material, as
the case may be, or contract to and accepted by the buyer.
Protection of security of
India.
Implied
warranty on
sale of registered
variety, etc.
147
Document open
to public
inspection.
Report of Authority to be placed before
Parliament,
80. If a person who is a party to a proceeding under this Act (not being a proceeding in a court) dies pending the proceeding, the Authority or the Registrar, as the case may be, may, on request, and on proof to the satisfaction of such Authority or Registrar, of the transmission of the interest of the deceased person, substitute in the proceedings his successor in interest in his place, or, if the Authority or the Registrar is of opinion that the interest of the deceased person is sufficiently represented by the surviving party, permit the proceedings to continue without the substitution of his successor in interest.
81. The registered agent or the registered licensee of a
variety or its propagating material or essentially derived variety or
its propagating material registered under this Act may institute appropriate proceedings in the court under this Act on behalf of the breeder of such variety or its propagating material or essentially
derived variety or its propagating material, as the case may be, if such agent or licensee has been authorized in the prescribed
manner by such breeder for doing so.
82. (1) A copy of any entry in the Register, or of any
document issued under this Act purporting to be certified by the
Authority or the Registrar and sealed with the seal of such Authority
or Registrar, as the case may be, shall be admitted in evidence in all
courts and in all proceedings without further proof or production of the original.
(2) A certificate purporting to be under the hand of the
Authority or the Registrar, as the case may be, as to any entry, matter or things that such Authority or Registrar is authorized by this Act or the rules to make or do shall be prima facie evidence of
the entry having been made, and of the content thereof, or of the matter or things having been done or not done.
83. The Authority or the Registrar or any officer working
under the Authority or the Registrar, as the case may be, shall not, in any legal proceedings, be compelled to produce the Register or any other document in its or his custody, the content of which can
be proved by the production of a certified copy issued under this Act in the prescribed manner or to appear as a witness to prove the
matter therein recorded unless by order of the court made for special cause.
84. Any person may, on an application to the Authority or
the Registrar, as the case may be, and on payment of such fees as
may be prescribed, obtain a certified copy of any entry in the
Register or any other document in any proceedings under this Act
pending before such Authority or Registrar or may inspect such
entry or document.
85. The Central Government shall cause to be placed
before both House of Parliament once a year a report regarding the performance of the Authority under this Act.
Death of party to a
proceedings.
Right of registered agent and the registered licensee to institute suit.
Evidence of
entry in Register, etc.,
and things done by the Authority and
the Registrar.
Authority, Registrar and other officers not compellable to production of Register, etc.
148
Government to
be bound.
Proceedings
before Authority or Registrar.
Protection of
action taken in good faith.
Bar of jurisdiction.
Members and staff of Authority, etc.,
to be public servants.
Exemption from tax on wealth
and income.
Act to have
overriding effect.
Power of Central
Government to give directions
Power to remove
difficulties.
86. The provisions of this Act shall be binding on the Government.
87. All proceedings before the Authority or the Registrar,
as the case may be, relating to registration of variety or essentially derived variety, registration of agent, registration of licence or
registration of compulsory licensing under this Act shall be deemed to be judicial proceedings within the meaning of sections 193 and
228, and for the purpose of section 196 of the Indian Penal Code and the Authority or the Registrar, as the case may be, shall be deemed to be a civil court for the purposes of section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973.
88. No suit, prosecution or other legal proceeding shall lie
against the Central Government, or against the Chairperson, or members, or the Registrar or any person acting under such Government, Authority or Registrar under the provisions of this Act, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule, regulation, scheme or order made thereunder.
89. No civil court shall have jurisdiction in respect of any
matter which the Authority or the Registrar or the Tribunal is
empowered by or under this Act to determine.
90. The Chairperson, members, officers and other
employees of the Authority and the Registrar-General and the officers and other employees working under him shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.
91. Notwithstanding anything contained in the Wealth-tax
Act, 1957, the Income-tax Act, 1961, or any other enactment for the time being in force relating to tax on wealth, income, profits or
gains, the Authority shall not be liable to pay wealth-tax, income-
tax or any other tax in respect of its wealth, income, profits or gains
derived.
92. the provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any
order law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
93. The Central Government may give direction to the
Authority as it may think necessary in the public interest for the execution of all or any of the functions of the Authority under any
provision of this Act or rules and regulations made thereunder.
94. (1) If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not
inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty :
149
Provided that no order shall be made under this section
after the expiry of two years from the date of commencement of this Act.
(2) Every order made under sub-section (1) shall be laid
before each House of Parliament.
95. (1) The Authority may, with the previous approval of
the Central Government, by notification in the Official Gazette,
make regulations consistent with this Act and the rules made
thereunder to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of
the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a) duties and jurisdiction of the Registrars under
sub-section (4) of section 12;
(b) the term of office and the conditions of service of
the Registrars under sub-section (5) of section 12;
(c) the criteria of distinctiveness, uniformity and
stability for registration of extant variety under sub-
section (2) of section 15;
(d) the manner in which a single and distinct
denomination to a variety shall be assigned by the
applicant under sub-section (1) of section 17;
(e) the matter governing the assignment of
denomination to a variety under sub-section (2) of section 17;
(f) the time within which the Registrar may require
the applicant to propose another denomination under sub-section (3) of section 17;
(g) the form of application under clause (d) of sub-
section (1) of section 18;
(h) the standards for evaluating seed during tests
under sub-section (1) of section 19;
(i) the quantity of seeds or propagating material
including parental line seeds to be deposited by a breeder
and the time to be specified under sub-section (1) of section 27;
(j) the limitations and conditions subject to which a
breeder may authorize a person to produce, sell, market or otherwise deal with variety under sub-section (2) of section 28;
(k) the form for authorization under sub-section (3)
Power to make regulations.
150
of section 28.
96. (1) The Central government may, by notification in
the Official Gazette, make rules to carry out the provisions of this
Act.
(2) In particular, and without prejudice to the generality
of the foregoing power, such rules may provide for all or any of the
following matters, namely :-
(i) the term of office of the Chairperson and the
manner of filling the post under sub-section (6) of section 3;
(ii) the salary and allowances of the Chairperson and
his conditions of service in respect of leave, pension, provident fund and other matters and the allowances for
non-official members for attending the meeting under sub- section (8) of section 3;
(iii) the time and place of meetings of the Authority
and the rules of procedure in regard to the transaction of business at its meetings [including the quorum at its
meetings and the transaction of business of its Standing
Committee appointed under sub-section (7) of section 3]
under sub-section (1) of section 4;
(iv) the control and restriction regarding appointment
of the officers and other employees of the Authority and the method of such appointment, salary and allowances and other conditions of service under section 6;
(v) the powers and duties of the Chairperson under
section 7;
(vi) the terms and conditions subject to which and the
manner in which the measures referred to in sub-section (1)
of section 8 may provide for the registration of new extant varieties under clause (a) of sub-section (2) of that section;
(vii) the manner for arranging production and sale of
the seed under clause (e) of sub-section (2) of section 8;
(viii) the order by the Authority or the Registrar as to
costs under clause (b) of section 11;
(ix) the salary and allowances of Registrar-General of
Plant Varieties and the conditions of service in respect of his leave, pension, provident fund and other matters under sub-
section (3) of section 12;
(x) the matter to be included in the National Register
of Plant Varieties under sub-section (1) of section 13;
(xi) the manner of authorizing a person under clause
(e) of sub-section (1) of section 16;
Power of
Central Government
to make rules.
151
(xii) the fees under clause (g) and the other particulars under clause (i) which shall accompany the application
under sub-section (1) of section 18;
(xiii) the form of application under the proviso to sub-
section (1) of section 18;
(xiv) the period within which after making application a
proof of the right to make the application is to be furnished under sub-section (3) of section 18;
(xv) the fees to be deposited by the applicant under
sub-section (2) of section 19;
(xvi) the manner and method of conducting the tests
under sub-section (3) of section 19;
(xvii) the manner of advertising application, conditions
or limitations and specifications of variety for registration
including its photographs or drawings under sub-section (1)
of section 21;
(xviii) the manner of giving notice and the fees payable
therefor under sub-section (2) of section 21;
(xix) the manner of sending counter-statement under
sub-section (4) of section 21;
(xx) the manner of submitting evidence and the time
within which such evidence may be submitted under sub- section (6) of section 21;
(xxi) the documents and fees under sub-section (1) and
the tests to be conducted and the procedure to be followed under sub-section (3) of section 32;
(xxii) the form of a certificate of registration and the
other authority to which a copy thereof shall be sent under sub-section (8) of section 23;
(xxiii) the form of a certificate of registration and the
other authority to which a copy thereof and the maximum
time for issuing the certificate of registration under sub-
section (2) of section 24;
(xxiv) the manner of giving notice to the applicant
under sub-section (3) of section 24;
(xxv) the fees for review and renewal under sub-section
(6) of section 24;
(xxvi) the contents of the certificate and the manner of
publishing such contents and inviting claim of benefits
sharing under sub-section (1) of section 26;
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(xxvii) the form for submitting claims of benefit sharing and the fees to be accompanied therewith under sub-section (2) of section 26;
(xxviii) the matter in which and the time within which
opposition to claims shall be submitted under sub-section (3) of section 26;
(xxix) the manner of making reference under sub-
section (7) of section 26;
(xxx) the manner of making an application for
registration for title and the fees to be accompanied therewith under sub-section (4) of section 28;
(xxxi) the manner of referring the disputes regarding
registration of entitlement under the proviso to sub-section (4) of section 28;
(xxxii) the manner to enter into a certificate the brief
conditions of entitlement under sub-section (5) of section
28;
(xxxiii) the manner of making an application for
varying the terms of registration under clause (a) of sub-
section (9) of section 28;
(xxxiv) the manner of making an application by the
registered breeder and certain other for cancellation of terms of registration under clause (b) of sub-section (9) of section 28;
(xxxv) the manner of application by any person other
than the breeder, his successor, the registered agent or the registered licensee for cancellation of terms of registration
under clause (c) of sub-section (9) of section 28;
(xxxvi) the manner of application for cancellation of
the terms of registration under clause (d) of sub-section (9)
of section 28;
(xxxvii) the manner of application for cancellation of
the terms of registration under clause (e) of sub-section (9)
of section 28;
(xxxviii) the manner of issuing notice to the registered
breeder of a variety or his successor or to each registered agent or registered licensee (not being the applicant) under
sub-section (10) of section 28;
(xxxix) the manner of giving notice to the Registrar
under Sub-section (1) of section 33;
(xl) the manner of notifying to the registered agent or
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registered under sub-section (2) of section 33;
(xli) the period within which the notice of opposition
under sub-section (3) of sub-section 33 may be given;
(xlii) the manner of making application under section
34;
(xliii) the manner of depositing fee under sub-section
(2) of section 35;
(xliv) the manner of making application under sub-
section (1) of section 36;
(xlv) the manner of applying to the Registrar under
sub-section (2) of section 36;
(xlvi) the manner of giving notice under sub-section
(4) of section 36;
(xlvii) the manner of application under sub-section (1)
of section 37;
(xlviii) the manner of making application under sub-
section (2) of section 37;
(xlix) the manner to apply to the Registrar under sub-
section (1) of section 38;
(l) the manner of advertising application and to give
notice to the Registrar, and the time from the date of the advertisement within which a person may give such notice under sub-section (2) of section 38;
(li) the manner of advertising the denomination of the
variety under sub-section (3) of section 38;
(lii) the manner of recognition and reward from Gene
Fund under clause (iii) of sub-section (1) of section 39;
(liii) the manner of claiming compensation and filing
of opposition under sub-section (2) of section 39;
(liv) the manner of issuing notice and filing objection
under sub-section (3) of section 41;
(lv) the manner of receiving benefit sharing under
clause (a) of sub-section (1) of section 45;
(lvi) the manner of applying Gene Fund under sub-
section (2) of section 45;
(lvii) the particulars to be contained in the
application under sub-section (2) of section 47;
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(lviii) the authority and the manner in which such authority shall make available to the compulsory licensee
the reproduction material of the variety under section 50;
(lix) the form for making application under sub-
section (1) of section 52;
(lx) the period within which an appeal shall be
preferred under sub-section (1) of section 56;
(lxi) the form of petition and the particulars which
such petition shall contain under sub-section (2) of section
56;
(lxii) the form for preparing annual statement of
accounts under sub-section (1) of section 62;
(lxiii) the financial and administrative powers which
the Chairperson shall exercise under section 63;
(lxiv) the manner of using the denomination of a
variety under sub-section (1) of section 68;
(lxv) the manner of authorizing registered agent or
registered licensee under section 81;
(lxvi) the manner of issuing certified copy of content of
Register or any other document under section 83;
(lxvii) the fees payable for obtaining a certified copy of,
or to inspect, any entry in the Register or any other document under section 84;
(lxviii) any other matter which is to be, or may be,
prescribed or in respect of which this Act makes no
provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary for the
proper implementation of this Act.
97. Every rule and every regulation and every scheme
made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a
total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or regulation or scheme or both House agree that the rule or
regulation or scheme should not be made, the rule or regulation or scheme shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation or
scheme.
SUBHASH C. JAIN
Secretary to the Government of India
Rules, regulations and schemes to be laid before Parliament.
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APPENDIX B
THE BIOLOGICAL DIVERSITY ACT, 2002
MINISTRY OF LAW AND JUSTICE (Legislative Department)
New Delhi, the 5th February, 2003/Magha 16, 1924 (Saka)
The following Act of Parliament received the assent of the President on the
5th February, 2003, and is hereby published for general information:
THE BIOLOGICAL DIVERSITY ACT, 2002
No. 18 OF 2003
An Act to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.
WHEREAS India is rich in biological diversity and associated traditional and contemporary knowledge system relating thereto.
AND WHEREAS India is a party to the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992;
AND WHEREAS the said Convention came into force on the 29th December, 1993;
AND WHEREAS the said Convention reaffirms the sovereign rights of the States over their biological resources;
AND WHEREAS the said Convention has the main objective of conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of utilization of genetic resources;
AND WHEREAS it is considered necessary to provide for conservation, sustainable utilization and equitable sharing of the benefits arising out of utilization of genetic resources and also to give effect to the said Convention.
BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:–
CHAPTER - I
Preliminary
1. Short title, extent and commencement
(1) This Act may be called the Biological Diversity Act, 2002. (2) It extends to the whole of India.
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(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
2. Definitions
In this Act, unless the context otherwise requires,–
(a) "benefit claimers" means the conservers of biological resources, their
byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application;
(b) "biological diversity" means the variability among living organisms from
all sources and the ecological complexes of which they are part, and includes diversity within species or between species and of eco-systems;
(c) "biological resources" means plants, animals and micro-organisms or
parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value, but does not include human genetic material;
(d) "bio-survey and bio-utilization" means survey or collection of species,
subspecies, genes, components and extracts of biological resource for any purpose and includes characterization, inventorisation and bioassay;
(e) "Chairperson" means the Chairperson of the National Biodiversity
Authority or, as the case may be, of the State Biodiversity Board; (f) "commercial utilization" means end uses of biological resources for
commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping;
(g) "fair and equitable benefit sharing" means sharing of benefits as
determined by the National Biodiversity Authority under section 2 1; (h) "local bodies" means Panchayats and Municipalities, by whatever
name called, within the meaning of clause (1) of article 243B and clause (1) of article 243Q of the Constitution and in the absence of any Panchayats or Municipalities, institutions of self-government
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constituted under any other provision of the Constitution or any Central
Act or State Act; (i) "member" means a member of the National Biodiversity Authority or a
State Biodiversity Board and includes the Chairperson; (j) "National Biodiversity Authority" means the National Biodiversity
Authority established under section 8; (k) "prescribed" means prescribed by rules made 1 under this Act;
(l) "regulations" means regulations made under this Act;
(m) "research" means study or systematic investigation of any biological
resource or technological application, that uses biological systems, living organisms or derivatives thereof to make or modify products or processes for any use;
(n) "State Biodiversity Board" means the State Biodiversity Board
established under section 22; (o) "sustainable use" means the use of components of biological diversity
in such manner and at such rate that does not lead to the long-term decline of the biological diversity thereby maintaining its potential to meet the needs and aspirations of present and future generations;
(p) "value added products" means products which may contain portions or
extracts of plants and animals in unrecognizable and physically inseparable form.
CHAPTER - II
Regulation of Access to Biological Diversity
Certain persons not to undertake Biodiversity related activities without approval of National Biodiversity Authority
3. (1) No person referred to in sub-section (2) shall, without previous
approval of the National Biodiversity Authority, obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization.
(2) The persons who shall be required to take the approval of the National
Biodiversity Authority under sub-section (1) are the following, namely:
(a) a person who is not a citizen of India;
(b) a citizen of India, who is a non-resident as defined in clause (30) of section 2 of the Income-tax Act, 196 1;
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(c) a body corporate, association or organization-
(i) not incorporated or registered in India; or
(ii) incorporated or registered in India under any law for the time being in force which has any non-Indian participation in its share capital or management.
Results of research not to be transferred to certain persons without approval of National Biodiversity Authority
4. No person shall, without the previous approval of the National
Biodiversity Authority, transfer the results of any research relating to any biological resources occurring in, or obtained from, India for monetary consideration or otherwise to any person who is not a citizen of India or citizen of India who is non-resident as defined in clause (30) of section 2 of the Income-tax Act, 1961 or a body corporate or organization which Is not registered or incorporated in India or which has any non-Indian participation in its share capital or management.
Explanation.- For the purposes of this section, "transfer" does not include publication of research papers or dissemination of knowledge in any seminar or workshop, if such publication is as per the guidelines issued by the Central Government.
Sections 3 and 4 not to apply to certain collaborative research projects
5.(1) The provisions of sections 3 and 4 shall not apply to collaborative
research projects involving transfer or exchange of biological resources or information relating thereto between institutions, including Government sponsored institutions of India, and such institutions in other countries, if such collaborative research projects satisfy the conditions specified in sub-section (3).
(2) All collaborative research projects, other than those referred to in sub-
section (1) which are based on agreements concluded before the commencement of this Act and in force shall, to the extent the provisions of agreement are inconsistent with the provisions of this Act or any guidelines issued under clause (a) of sub-section (3), be void.
(3) For the purposes of sub-section (1), collaborative research projects
shall-
(a) conform to the policy guidelines issued by the Central
Government in this behalf; (b) be approved by the Central Government.
Application for intellectual property rights not to be made without approval of National Biodiversity Authority
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6.(1) No person shall apply for any intellectual property right, by whatever name called, in or outside India for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application.
Provided that if a person applies for a patent, permission of the National Biodiversity Authority may be obtained after the acceptance of the patent but before the seating of tile patent by the patent authority concerned:
Provided further that the National Biodiversity Authority shall dispose of the application for permission made to it within a period of ninety days from the date of receipt thereof.
(2) The National Biodiversity Authority may, while granting the approval
under this section, impose benefit sharing fee or royalty or both or impose conditions including the sharing of financial benefits arising out of the commercial utilization of such rights.
(3) The provisions of this section shall not apply to any person making an
application for any right under any law relating to protection of plant varieties enacted by Parliament.
(4) Where any right is granted under law referred to in sub-section (3), the
concerned authority granting such right shall endorse a copy of such document granting the right to the National Biodiversity Authority.
Prior intimation to State Biodiversity Board for obtaining biological resource for certain purposes
7. No person, who is a citizen of India or a body corporate, association or
organization which is registered in India, shall obtain any biological resource for commercial utilization, or bio-survey and bio-utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board concerned:
Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims, who have been practicing indigenous medicine.
CHAPTER - III
National Biodiversity Authority
Establishment of National Biodiversity Authority
8.(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established
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by the Central Government for the purposes of this Act, a body to be
called the National Biodiversity Authority. (2) The National Biodiversity Authority shall be a body corporate by the
name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued.
(3) The head office of the National Biodiversity Authority shall be at
Chennai and the National Biodiversity Authority may, with the previous approval of the Central Government, establish offices at other places in India.
(4) The National Biodiversity Authority shall consist of the following
members,
(a) a Chairperson, who shall be an eminent person having adequate knowledge and experience in the conservation and sustainable use of biological diversity and in matters relating to equitable sharing of benefits, to be appointed by the Central Government;
(b) three ex officio members to be appointed by the Central
Government, one representing the Ministry dealing with Tribal Affairs and two representing the Ministry dealing with Environment and Forests of whom one shall be the Additional Director General of Forests or the Director General of Forests;
(c) seven ex officio members to be appointed by the Central
Government to represent respectively the Ministries of the Central Government dealing with –
(i) Agricultural Research and Education; (ii) Biotechnology; (iii) Ocean Development; (iv) Agriculture and Cooperation; (v) Indian Systems of Medicine and Homoeopathy; (vi) Science and Technology; (vii) Scientific and Industrial Research;
(d) five non-official members to be appointed from amongst
specialists and scientists having special knowledge of, or experience in, matters relating to conservation of biological diversity, sustainable use of biological resources and equitable sharing of benefits arising out of the use of biological resources, representatives of industry, conservers, creators and know ledge-holders of biological resources.
Conditions of service of Chairperson and members 9. The term of office and conditions of service of the Chairperson and the
other members other than ex officio members of the National Biodiversity Authority shall be such as may be prescribed by the Central Government.
Chairperson to be Chief Executive of National Biodiversity Authority
10. The Chairperson shall be the Chief Executive of the National
Biodiversity Authority and shall exercise such powers and perform such duties, as may be prescribed.
Removal of members
11. The Central Government may remove from the National Biodiversity
Authority any member who, in its opinion, has-
(a) been adjudged as an insolvent; or
(b) been convicted of an offence which involves moral turpitude; or
(c) become physically or mentally incapable of acting as a member; or
(d) so abused his position as to render his continuance in office detrimental to the public interest; or
(e) acquired such financial or other interest as is likely to affect prejudicially his functions as a member.
Meetings of National Biodiversity Authority 12. (1) The National Biodiversity Authority shall meet at such time and place
and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be prescribed.
(2) The Chairperson of the National Biodiversity Authority shall preside at
the meetings of the National Biodiversity Authority. (3) If for any reason the Chairperson is unable to attend any meeting of the
National Biodiversity Authority, any member of the National Biodiversity Authority chosen by the members present at the meeting shall preside at the meeting.
(4) All questions which come before any meeting of the National
Biodiversity Authority shall be decided by a majority of votes of the members present and voting and in the event of equality of votes, the Chairperson or, in his absence, the person presiding, shall have and exercise a second or casting vote.
(5) Every member who is in any way, whether directly, indirectly or personally, concerned or interested in a matter to be decided at the meeting shall disclose the nature of his concern or interest and after such disclosure, the member concerned or interested shall not attend that meeting.
(6) No act or proceeding of the National Biodiversity Authority shall be
invalidated merely by reason of-
(a) any vacancy in, or any defect in the constitution of, the National Biodiversity Authority; or
(b) any defect in the appointment of a person acting as a member;
or
(c) any irregularity in the procedure of the National Biodiversity Authority not affecting the merits of the case.
Committees of National Biodiversity Authority
13. (1) The National Biodiversity Authority may constitute a committee to deal
with agro-biodiversity. Explanation- For the purposes of this sub-section, "agro-biodiversity" means
biological diversity, of agriculture related species and their wild relatives. (2) Without prejudice to the provisions of sub-section (1), the National
Biodiversity Authority may constitute such number of committees as it deems fit for the efficient discharge of its duties and performance of its functions under this Act.
(3) A committee constituted under this section shall co-opt such number of
persons, who are not the members of the National Biodiversity Authority, as it may think fit and the persons so co-opted shall have the right to attend the meetings of the committee and take part in its proceedings but shall not have the right to vote.
(4) The persons appointed as members of the committee under
sub-section (2) shall be entitled to receive such allowances or fees for attending the meetings of the committee as may be fixed by the Central Government.
Officers and employees of National Biodiversity Authority
14.(1) The National Biodiversity Authority may appoint such officers and other
employees as it considers necessary for the efficient discharge of its functions under this Act.
(2) The terms and conditions of service of such officers and other employees of the National Biodiversity Authority shall be such as may be specified by regulations.
Authentication of orders and decisions of National Biodiversity Authority
15. All orders and decisions of the National Biodiversity Authority shall be
authenticated by the signature of the Chairperson or any other member authorized by the National Biodiversity Authority in this behalf and all other instruments executed by the National Biodiversity Authority shall be authenticated by the signature of an officer of the National Biodiversity Authority authorized by it in this behalf.
Delegation of powers
16. The National Biodiversity Authority may, by general or special order in
writing, delegate to any member, officer of the National Biodiversity Authority or any other person subject to such conditions, if any, as may be specified in the order, such of the powers and functions under this Act (except the power to prefer an appeal under section 50 and the power to make regulations under section 64) as it may deem necessary.
Expenses of National Biodiversity Authority to be defrayed out of the Consolidated Fund of India
17. The salaries and allowances payable to the members and the
administrative expenses of the National Biodiversity Authority including salaries, allowances and pension payable to, or in respect of, the officers and other employees of the National Biodiversity Authority shall be defrayed out of the Consolidated Fund of India.
CHAPTER - IV
Functions and Powers of the National Biodiversity Authority
Functions and powers of National Biodiversity Authority
18.(1) It shall be the duty of the National Biodiversity Authority to regulate activities referred to in sections 3, 4 and 6 and by regulations issue guidelines for access to biological resources and for fair and equitable benefit sharing.
(2) The National Biodiversity Authority may grant approval for undertaking
any activity referred to in sections 3, 4 and 6.
(3) The National Biodiversity Authority may-
(a) advise the Central Government on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilization of biological resources;
(b) advise the State Governments in the selection of areas of biodiversity importance to be notified under sub-section (1) of section 37 as heritage sites and measures for the management of such heritage sites;
(c) perform such other functions as may be necessary to carry out the provisions of this Act.
(4) The National Biodiversity Authority may, on behalf of the Central
Government, take any measures necessary to oppose the grant of intellectual property rights in any country outside India on any biological resource obtained from India or knowledge associated with such biological resource which is derived from India.
CHAPTIER - V
Approval by the National Biodiversity Authority Approval by National Biodiversity Authority for undertaking certain activities
19.(1) Any person referred. to in sub-section (2) of section 3 who intends to
obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization or transfer the results of any research relating to biological resources occurring in, or obtained from, India, shall make application in such form and payment of such fees as may be prescribed, to the National Biodiversity Authority.
(2) Any person who intends to apply for a patent or any other form of
intellectual property protection whether in India or outside India referred to in sub-section (1) of section 6, may make an application in such form and in such manner as may be prescribed to the National Biodiversity Authority.
(3) On receipt of an application under sub-section (1) or sub-section (2),
the National Biodiversity Authority may, after making such enquiries as it may deem fit and if necessary after consulting an expert committee constituted for this purpose, by order, grant approval subject to any regulations made in this behalf and subject to such terms and conditions as it may deem fit, including the imposition of charges by way of royalty or for reasons to be recorded in writing, reject the application:
Provided that no such order for rejection shall be made without giving an opportunity of being heard to the person affected.
(4) The National Biodiversity Authority shall give public notice of every approval granted by it under this section.
Transfer of biological resource or knowledge
20.(1) No person who has been granted approval under section 19 shall
transfer any biological resource or knowledge associated thereto which is the subject matter of the said approval except with the permission of the National Biodiversity Authority.
(2) Any person who intends to transfer any biological resource or
knowledge associated thereto referred to in sub-section (1) shall make an application in such form and in such manner as may be prescribed to the National Biodiversity Authority.
(3) On receipt of an application under sub-section (2), the National
Biodiversity Authority may, after making such enquiries as it may deem fit and if necessary after consulting an expert committee constituted for this purpose, by order, grant approval subject to such terms and conditions as it may deem fit, including the imposition of charges by way of royalty or for reasons to be recorded in writing, reject the application:
Provided that no such order for rejection shall be made without giving an opportunity of being heard to the person affected.
(4) The National Biodiversity Authority shall give public notice of every
approval granted by it under this section. Determination of equitable benefit sharing by National Biodiversity Authority
21.(1) The National Biodiversity Authority shall while granting approvals under
section 19 or section 20 ensure that the terms and conditions subject to which approval is granted secures equitable sharing of benefits arising out of the use of accessed biological resources, their by-products, innovations and practices associated with their use and applications and knowledge relating thereto in accordance with mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers.
(2) The National Biodiversity Authority shall, subject to any regulations
made in this behalf, determine the benefit sharing which shall be given effect in all or any of the following manner, namely:
(a) grant of joint ownership of intellectual property rights to the
National Biodiversity Authority, or where benefit claimers are identified, to such benefit claimers;
(b) transfer of technology;
(c) location of production, research and development units in such areas which will facilitate better living standards to the benefit claimers;
(d) association of Indian scientists, benefit claimers and the local people with research and development in biological resources and bio-survey and bio-utilization;
(e) setting up of venture capital fund for aiding the cause of benefit claimers;
(f) payment of monetary compensation and non-monetary benefits to the benefit claimers as the National Biodiversity Authority may deem fit.
(3) Where any amount of money is ordered by way of benefit sharing, the
National Biodiversity Authority may direct the amount to be deposited in the National Biodiversity Fund:
Provided that where biological resource or knowledge was a result of access from specific individual or group of individuals or organizations, the National Biodiversity Authority may direct that the amount shall be paid directly to such individual or group of individuals or organizations in accordance with the terms of any agreement and in such manner as it deems fit.
(4) For the purposes of this section, the National Biodiversity Authority
shall, in consultation with the Central Government, by regulations, frame guidelines.
CHAPTER - VI
State Biodiversity Board
Establishment of State Biodiversity Board
22.(1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established by that Government for the purposes of this Act, a Board for the State to be known as the (name of the State) Biodiversity Board.
(2) Notwithstanding anything contained in this section, no State
Biodiversity Board shall be constituted for a Union territory and in relation to a Union territory, the National Biodiversity Authority shall exercise the powers and perform the functions of a State Biodiversity Board for that Union territory:
Provided that in relation to any Union territory, the National Biodiversity Authority may delegate all or any of its powers or functions under this sub-section to such person or group of persons as the Central Government may specify.
(3) The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and he sued.
(4) The Board shall consist of the following members, namely:
(a) a Chairperson who shall be an eminent person having adequate
knowledge and experience in the conservation and sustainable use of biological diversity and in matters relating to equitable sharing of benefits, to he appointed by the State Government;
(b) not more than five ex officio members to be appointed by the
State Government to represent the concerned Departments of the State Government;
(c) not more than five members to be appointed from amongst experts in matters relating to conservation of biological diversity, sustainable use of biological resources and equitable sharing of benefits arising out of the use of biological resources.
(5) The head office of the State Biodiversity Board shall be at such place
as the State Government may, by notification in the Official Gazette, specify.
Functions of State Biodiversity Board
23. The functions of the State Biodiversity Board shall be to–
(a) advise the State Government, subject to any guidelines issued by the
Central Government, on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of the benefits arising out of the utilization of biological resources;
(b) regulate by granting of approvals or otherwise requests for commercial
utilization or bio-survey and bio-utilization of any biological resource by Indians;
(c) perform such other functions as may he necessary to carry out the
provisions of this Act or as may be prescribed by the State Government.
Power of State Biodiversity Board to restrict certain activities
24.(1) Any citizen of India or a body corporate, organization or association
registered in India intending to undertake any activity referred to in section 7 shall give prior intimation in such form as may be prescribed by the State Government to the State Biodiversity Board.
(2) On receipt of an intimation under sub-section (1), the State Biodiversity
Board may, in consultation with the local bodies concerned and after
making such enquires as it conservation, may deem fit, by order, prohibit or restrict any such activity if it is of opinion that such activity is detrimental or contrary to the objectives of conservation and sustainable use of biodiversity or equitable sharing of benefits arising out of such activity:
Provided that no such order shall be made without giving an opportunity of being heard to the person affected.
(3) Any information given in the form referred to in sub-section (1) for prior
intimation shall be kept confidential and shall not be disclosed, either intentionally or unintentionally, to any person not concerned thereto.
Provisions of sections 9 to 17 to apply with modifications to State Biodiversity Board
25. The provisions of sections 9 to 17 shall apply to a State Biodiversity
Board and shall have effect subject to the following modifications, namely:
(a) references to the Central Government shall be construed as
references to the State Government; (b) references to the National Biodiversity Authority shall be
construed as references to the State Biodiversity Board;
Provisions of sections 9 to 17 to apply with modifications to State Biodiversity Board.
(c) reference to the Consolidated Fund of India shall be construed
as reference to the Consolidated Fund of the State.
CHAPER - VII
Finance, Accounts and Audit of National Biodiversity Authority
Grants or loans by the Central Government
26. The Central Government may, after due appropriation made by Parliament by law in this behalf, pay to the National Biodiversity Authority by way of grants or loans such sums of money as the Central Government may think fit for being utilized for the purposes of this Act.
Constitution of National Biodiversity Fund
27.(1) There shall be constituted a Fund to be called the National Biodiversity
Fund and there shall be credited thereto --
(a) any grants and loans made to the National Biodiversity Authority under section 26;
(b) all charges and royalties received by the National Biodiversity Authority under this Act; and
(c) all sums received by the National Biodiversity Authority from such other sources as may be decided upon by the Central Government.
(2) The Fund shall be applied for–
(a) channeling benefits to the benefit claimers; (b) conservation and promotion of biological resources and
development of areas from where such biological resources or knowledge associated thereto has been accessed;
(c) socio-economic development of areas referred to in clause (b) in consultation with the local bodies concerned.
Annual report of National Biodiversity Authority
28. The National Biodiversity Authority shall prepare, in such form and at
such time each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and furnish, to the Central Government, before such date as may be prescribed, its audited copy of accounts together with auditors report thereon.
Budget accounts and audit
29.(1) The National Biodiversity Authority shall prepare a budget, maintain
proper accounts and other relevant records (including the accounts and other relevant records of the National Biodiversity Fund) and prepare an annual statement of account in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the National Biodiversity Authority shall be audited by
the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the National Biodiversity Authority to the Comptroller and Auditor-General of India.
(3) The Comptroller and Auditor-General of India and any other person
appointed by him in connection with the audit of the accounts of the National Biodiversity Authority shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the National Biodiversity Authority.
(4) The accounts of the National Biodiversity Authority as certified by the Comptroller and Auditor- General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government.
Annual Report to be laid before parliament
30. The Central Government shall cause the annual report and auditor's
report to be laid, as soon as may be after they are received, before each House of Parliament.
CHAPTER - VIII
Finance, Accounts and Audit of State Biodiversity Board
Grants of money by State Government to State Biodiversity Board
31. The State Government may, after due appropriation made by the State Legislature by law in this behalf, pay to the State Biodiversity Board by way of grants or loans such sums of money as the State Government may think fit for being utilized for the purposes of this Act.
Constitution of State Biodiversity Fund
32.(1) There shall be constituted a Fund to be called the State Biodiversity
Fund and there shall be credited thereto-
(a) any grants and loans made to the State Biodiversity Board under section 31;
(b) any grants or loans made by the National Biodiversity Authority; (c) all sums received by the State Biodiversity Board from such
other sources as may be decided upon by the State Government.
(2) The State Biodiversity Fund shall be applied for-
(a) the management and conservation of heritage sites; (b) compensating or rehabilitating any section of the people
economically affected by notification under sub-section (1) of section 37;
(c) conservation and promotion of biological resources; (d) socio-economic development of areas from where such
biological resources or knowledge associated thereto has been accessed subject to any order made under section 24, in consultation with the local bodies concerned;
(e) meeting the expenses incurred for the purposes authorized by this Act.
Annual report of State Biodiversity Board
33. The State Biodiversity Board shall prepare, in such form and at such time in each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year, and submit a copy thereof to the State Government.
Audit of accounts of State Biodiversity Board
34. The accounts of the State Biodiversity Board shall be maintained and
audited in such manner as may, in consultation with the Accountant-General of the State, be prescribed and the State Biodiversity Board shall furnish, to the State Government, before such date as may be prescribed, its audited copy of accounts together with auditor's report thereon.
Annual Report of State Biodiversity Board to be laid before State Legislature
35. The State Government shall cause the annual report and auditor's
report to be laid, as soon as may be after they are received, before the House of State Legislature.
CHAPTER - IX
Duties of the Central and the State Governments
Central Government to develop National strategies plans. Etc., for conservation, etc., of biological diversity
36.(1) The Central Government shall develop national strategies, plans,
programmes for the conservation and promotion and sustainable use of biological diversity including measures for identification and monitoring of areas rich in biological resources, promotion of in situ, and ex situ, conservation of biological resources, incentives for research, training and public education to increase awareness with respect to biodiversity.
(2) Where the Central Government has reason to believe that any area
rich in biological diversity, biological resources and their habitats is being threatened by overuse, abuse or neglect, it shall issue directives to the concerned State Government to take immediate ameliorative measures, offering such State Government any technical and other assistance that is possible to be provided or needed.
(3) The Central Government shall, as far as practicable wherever it deems
appropriate, integrate the conservation, promotion and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.
4) The Central Government shall undertake measures,-
(i) wherever necessary, for assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimize such effects and where appropriate provide for public participation in such assessment;
(ii) to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology likely to have adverse impact on the conservation and sustainable use of biological diversity and human health.
(5) The Central Government shall endeavour to respect and protect the
knowledge of local people relating to biological diversity, as recommended by the National Biodiversity Authority through such measures, which may include registration of such knowledge at the local, State or national levels, and other measures for protection, including sui generis system.
Explanation:-For the purposes of this section,–
(a) "ex situ conservation” means the conservation of components of
biological diversity outside their natural habitats; (b) "in situ conservation" means the conservation of ecosystems
and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.
Biodiversity heritage sites
37.(1) Without prejudice to any other law for the time being in force, the State
Government may, from time to time in consultation with the local bodies, notify in the Official Gazette, areas of biodiversity importance as biodiversity heritage sites under this Act.
(2) The State Government, in consultation with the Central Government,
may frame rules for the management and conservation of all the heritage sites.
(3) The State Government shall frame schemes for compensating or
rehabilitating any person or section of people economically affected by such notification.
Power of Central Government to notify threatened species
38. Without prejudice to the provisions of any other law for the time being
in force, the Central Government, in consultation with the concerned State Government, may from time o time notify any species which is on the verge of extinction or likely to become extinct in the near future as a threatened species and prohibit or regulate collection thereof for any
purpose and take appropriate steps to rehabilitate and preserve those species.
Power of Central Government to designate repositories
39.(1) The Central Government may, in consultation with the National
Biodiversity Authority, designate institutions as repositories under this Act for different categories of biological resources.
(2) The repositories shall keep in safe custody the biological material
including voucher specimens deposited with them. (3) Any new taxon discovered by any person shall be notified to the
repositories or any institution designated for this purpose and he shall deposit the voucher specimens with such repository or institution.
Power of Central Government to exempt certain biological resources
40. Notwithstanding anything contained in this Act, the Central
Government may, in consultation with the National Biodiversity Authority, by notification in the Official Gazette, declare that the provisions of this Act shall not apply to any items, including biological resources normally traded as commodities.
CHAPTER - X
Biodiversity Management Committees
Constitution of Biodiversity Management Committee
41.(1) Every local body shall constitute a Biodiversity Management Committee within its area for the purpose of promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals and microorganisms and chronicling of knowledge relating to biological diversity.
Explanation.- For the purposes of this sub-section,–
(a) "cultivar" means a variety of plant that has originated and
persisted under cultivation or was specifically bred for the purpose of cultivation;
(b) "folk variety" means a cultivated variety of plant that was developed, grown and exchanged informally among farmers;
(c) “landrace” means primitive cultivar that was grown by ancient farmers and their successors.
(2) The National Biodiversity Authority and the State Biodiversity Boards
shall consult the Biodiversity Management Committees while taking any decision relating to the use of biological resources and knowledge
associated with such resources occurring within the territorial jurisdiction of the Biodiversity Management Committee.
(3) The Biodiversity Management Committees may levy charges by way of
collection fees from any person for accessing or collecting any biological resource for commercial purposes from areas falling within its territorial jurisdiction.
CHAPTER - XI Local,
Biodiversity Fund
Grants to Local Biodiversity Fund
42. The State Government may, after due appropriation made by State Legislature by law in this behalf, pay to the Local Biodiversity Funds by way of grants or loans such sums of money as the State Government may think fit for being utilized for the purposes of this Act.
Constitution of Local Biodiversity Fund
43.(1) There shall be constituted a Fund to be called the Local Biodiversity
Fund at every area notified by the State Government where any institution of self-government is functioning and there shall be credited thereto-
(a) any grants and loans made under section 42; (b) any grants or loans made by the National Biodiversity Authority; (c) any grants or loans made by the State Biodiversity Boards; (d) fees referred to in sub-section (3) of section 41 received by the
Biodiversity Management Committees; (e) all sums received by the Local Biodiversity Fund from such other
sources as may be decided upon by the State Government. Application of Local Biodiversity Fund
44.(1) Subject to the provisions of sub-section (2), the management and the
custody of the Local Biodiversity Fund and the purposes for which such Fund shall be applied, be in the manner as may be prescribed by the State Government.
(2) The Fund shall be used for conservation and promotion of biodiversity
in the areas falling within the jurisdiction of the concerned local body and for the benefit of the community in so far such use is consistent with conservation of biodiversity.
Annual Report of Biodiversity Management Committees
45. The person holding the custody of the Local Biodiversity Fund shall
prepare, in such form and during each financial year at such time as
may be prescribed, its annual report, giving a full account of its activities during the previous financial year, and submit a copy thereof to the concerned local body.
Audit of accounts of Biodiversity Management Committees
46. The accounts of the Local Biodiversity Fund shall be maintained and
audited in such manner as may, in consultation with the Accountant-General of the State, be prescribed and the person holding the custody of the Local Biodiversity Fund shall furnish, to the concerned local body, before such date as may be prescribed, its audited copy of accounts together with auditor's report thereon.
Annual report, etc, of the Biodiversity Management Committee to be submitted to district Magistrate
47. Every local body constituting a Biodiversity Management Committee
under sub-section (1) of section 41, shall cause, the annual report and audited copy of accounts together with auditor's report thereon referred to in sections 45 and 46, respectively and relating to such Committee to be submitted to the District Magistrate having jurisdiction over the area of the local body.
CHAPTER - XII
Miscellaneous
National Biodiversity Authority to be bound by the directions given by Central Government
48.(1) Without prejudice to the foregoing provisions of this Act, the National
Biodiversity Authority shall, in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time.
Provided that the National Biodiversity Authority shall, as far as practicable, be given opportunity to express its views before any direction is given under this sub-section.
(2) The decision of the Central Government whether a question is one of
policy or not shall be final. Power of State Government to give Directions
49.(1) Without prejudice to the foregoing provisions of this Act, the State
Biodiversity Board shall, in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy as the State Government may give in writing to it from time to time:
Provided that the State Biodiversity Board shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub-section.
(2) The decision of the State Government whether a question is one of
policy or not shall be final. Settlement of disputes between State Biodiversity Boards
50.(1) If a dispute arises between the National Biodiversity Authority and a
State Biodiversity Board, the said Authority or the Board, as the case may be, may prefer an appeal to the Central Government within such time as ma be prescribed.
(2) Every appeal made under sub-section (1) shall be in such form as may
be prescribed by the Central Government. (3) The procedure for disposing of an appeal shall be such as may be
prescribed by the Central Government:
Provided that before disposing of an appeal, the parties shall be given a reasonable opportunity of, being heard.
(4) If a dispute arises between the State Biodiversity Boards, the Central
Government shall refer the same to the National Biodiversity Authority. (5) While adjudicating any dispute under sub-section (4), the National
Biodiversity Authority shall be guided by the principles of natural justice and shall follow such procedure as may be prescribed by the Central Government.
(6) The National Biodiversity Authority shall have, for the purposes of
discharging its functions under this section, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of the following matters, namely–
(a) summoning and enforcing the attendance of any person and
examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or
documents;
(e) reviewing its decisions; dismissing an application for default or deciding it ex parte;
(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(h) any other matter which may be prescribed. (7) Every proceeding before the National Biodiversity Authority shall be
deemed to be a judicial proceeding within the meaning of sections 193
and 228, and for the purpose of section 196, of the Indian Penal Code and the National Biodiversity Authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXV1 of the Code of Criminal Procedure, 1973.
Members, officers, etc., of National Biodiversity Authority and State Biodiversity Board deemed to be public servants
51. All members, officers and other employees of the National Biodiversity
Authority or the State Biodiversity Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions, of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code.
Appeal
52. Any person, aggrieved by any determination of benefit sharing or order
of the National Biodiversity Authority or a State Biodiversity Board under this Act, may file an appeal to t ' he High Court within thirty days from the date of communication to him, of the determination or order of the National Biodiversity Authority or the State Biodiversity Board, as the case may be:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal-within the said period, allow it to be filed within a further period not exceeding sixty days.
Execution of determination or order
53. Every determination of benefit sharing or order made by the National
Biodiversity Authority or a State Biodiversity Board under this Act or the order made by the High Court in any appeal against any determination or order of the National Biodiversity Authority or a State Biodiversity Board shall, on a certificate issued by any officer of the National Biodiversity Authority or a State Biodiversity Board or the Registrar of the High Court, as the case may be, be deemed to be decree of the civil court and shall be executable in the same manner as a decree of that court.
Explanation.- For the purposes of this section and section 52, the expression “State Biodiversity Board" includes the person or group of persons to whom the powers or functions under sub-section (2) of section-22 have been delegated under the proviso to that sub-section and the certificate relating to such person or group of persons under this section shall be issued by such person or group of persons, as the case may be.
Protection of action taken in good faith
54. No suit, prosecution or other legal proceedings shall lie against the Central Government or the State Government or any officer of the Central Government or the State Government or any member, officer or employee of the National Biodiversity Authority or the State Biodiversity Board for anything which is in good faith done or intended to he done under this Act or the rules or regulations made thereunder.
Penalties
55.(1) Whoever contravenes or to or abets the contravention of the provisions
of section 3 or section 4 or section 6 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds tend lakh rupees such fine may commensurate with the damage caused, or with both.
(2) Whoever contravenes or attempts to contravene or abets the
contravention of the provisions of section 7 or any order made under sub-section (2) of section 24 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.
Penalty for contravention of directions or orders of Central government, State government, National Biodiversity Authority and State Biodiversity Boards
56. If any person contravenes any direction given or order made by the
Central Government, the State Government, the National Biodiversity Authority or the State Biodiversity Board for which no punishment has been separately provided under this Act, he shall be punished with a fine which may extend to one lakh rupees and in case of a second or subsequent offence, with fine which may extend to two lakh rupees and in the case of continuous contravention with additional fine which may extend to two lakh rupees everyday during which the default continues.
Offences by companies
57.(1) Where an offence or contravention under this Act has been committed
by a company, every person who at the time the offence or contravention was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence or contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.
(2) Notwithstanding anything contained in sub-section (1), where an offence or contravention under this Act has been committed by a company and it is proved that the offence or contravention has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence or contravention and shall be liable to be proceeded against and punished accordingly.
Explanation. -For the purposes of this section,–
(a) "company" means any body corporate and includes a firm or
other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm.
Offences to be cognizable and non-bailable
58. The offences under this Act shall be cognizable and non-bailable.
Act to have effect in addition to other Acts
59. The provisions of this Act shall be in addition to, and not in derogation
of, the provisions in any other law, for the time being in force, relating to forests or wildlife.
Power of Central Government to giver directions to State Government
60. The Central Government may give directions to any State Government
as to the carrying into execution in the State of any of the provisions of this Act or of any rule or regulation or order made thereunder.
Cognizance of offences
61. No Court shall take cognizance of any offence under this Act except on
a complaint made by–
(a) the Central Government or any authority or officer authorized in this behalf by that Government; or
(b) any benefit claimer who has given notice of not less than thirty
days in the prescribed manner, of such offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid.
Power of Central Government to make rules
62.(1) The Central Government may' by notification in the Official Gazette,
make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for A or any of the following matters, namely:–
(a) terms and conditions of service of the Chairperson and
members under section 9; (b) powers and duties of the Chairperson under section 10; (c) procedure under sub-section (1) of section 12 in regard to
transaction of business at meetings, (d) form of application and payment of fees for undertaking certain
activities under sub-section (1) of section 19; (e) the form and manner of making an application under sub-section
(2) of section 19; (f) form of application and the manner for transfer of biological
resource or knowledge under sub-section (2) of section 20; (g) form in which, and the time of each financial year at which, the
annual report of the National Biodiversity Authority shall be prepared and the date before which its audited copy of accounts together with auditor's report thereon shall be furnished under section 28;
(h) form in which the annual statement of account shall be prepared under subsection (1) of section 29;
(i) the time within which and the form in which, an appeal may be preferred, the procedure for disposing of an appeal and the procedure for adjudication, under section 50;
(j) the additional matter in which the National Biodiversity Authority may exercise powers of the civil court under clause (h) of sub-section (6) of section 50;
(k) the manner of giving notice under clause (b) of section 61; (l) any other matter which is to be, or may be, prescribed, or in
respect of which provision is to be made, by rules. (3) Every rule made under this section and every regulation made under
this Act shall be laid, as soon as may he after it is made, before each House of Parliament, while it Is in session or a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following. The session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
Power of State Government to make rules
63.(1) The State Government may, by notification in the Official Gazette,
make rules for carrying out the purposes of this Act.
power, such rules may provide for all or any of the following matters, namely:–
(a) the other functions to be performed by the State Biodiversity
Board under clause (c) of section 23; (b) the form in which the prior intimation shall be given under
sub-section (1) of section 24; (c) the form in which, and the time of each financial year at which,
the annual report shall be prepared under section 33; (d) the manner of maintaining and auditing the accounts of the
State Biodiversity Board and the date before which its audited copy of the accounts together with auditor's report thereon shall be furnished under section 34;
(e) management and conservation of national heritage sites under section 37;
(f) the manner of management and custody of the Local Biodiversity Fund and the purposes for which such Fund shall be applied under sub-section (1) of section 44;
(g) the form of annual report and the time at which such report shall be prepared during each financial year under section 45;
(h) the manner of maintaining and auditing the accounts of the Local Biodiversity Fund and the date before which its audited copy of the accounts together with auditor's report thereon shall be furnished under section 46;
(i) any other matter which is to be, or may be, specified. (3) Every rule made by the State Government under this section shall he
laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.
Power of remove difficulties
64. The National Biodiversity Authority shall, with the previous approval of
the Central Government, by notification in the Official Gazette, make regulations for carrying out the purposes of this Act.
Power to remove difficulties
65.(1) If any difficulty arises in giving effect to the provisions of this Act, the
Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be,
after it is made, before each House of Parliament.
SUBHASH C.
JAIN Secretary to the Government of India
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APPENDIX C
PLANT VARIETIES PROTECTION ACT, B.E. 2542 (1999)*
BHUMIBOL ADULYADEJ, REX.
Given on the 14th
Day of November B.E. 2542;
Being the 54th
Year of the Present Reign.
His Majesty King Bhumibol Adulyadej is graciously pleased to
proclaim that:
Whereas it is expedient to have the law on plant varieties protection;
Whereas this Act contains certain provisions relating to the restriction of
rights and liberties of the people, which section 29 in conjunction with section
48 and section 50 of the Constitution of the Kingdom of Thailand allow to be
done by virtue of law;
Be it, therefore, enacted by the King, by and with the advice and consent
of the National Assembly, as follows:
Section 1. This Act shall be called the “Plant Varieties Protection
Act, B.E. 2542 (1999)”.
Section 2. This Act shall come into force as from the day following
the date of its publication in the Government Gazette. *
Section 3. In this Act,
“plant” means a living organism in the kingdoms of plants and shall
include mushroom and seaweed but exclude other micro-organisms;
“plant variety” means a plant grouping of similar or identical genetic
and botanical characteristics, with particular features which are uniform, stable
and distinct from other grouping in the same species of plant and shall include
trees the propagation of which is conducive to the plant grouping of the
aforesaid features;
*
Tentative translation by Dr. Pinai Nanakorn, legal officer of the Foreign Law
Division of the Office of the Council of State. The translation is prepared in the
translator’s own capacity on a gratuitous basis and as the translator’s favour to
the Department of Agriculture and the Office of the National Plant Varieties
Protection, Ministry of Agriculture and Co-operatives for their presentation to
UPOV. The translator, however, reserves full copyrights in this translation. The
translator’s permission must strictly be obtained for use of this literary work for any
purpose other than for official use by the aforesaid agencies. *
Published in Government Gazette, Vol. 116, Part 118a, dated 25 November 1999.
183
“local domestic plant variety” means a plant variety which exists only in
a particular locality within the Kingdom and has never been registered as a new
plant variety and which is registered as a local domestic plant variety under this
Act;
“wild plant variety” means a plant variety which currently exists or used
to exist in the natural habitat and has not been commonly cultivated;
“general domestic plant variety” means a plant variety originating or
existing in the country and commonly exploited and shall include a plant
variety which is not a new plant variety, a local domestic plant variety or a wild
plant variety;
“genetic material” means the chemical material defining particular
features of a living organism and capable of being a pattern for self-model and
of passing to its next generation.
“genetic modification” means a process for the permanent combination
of a genetic material originating from a living organism, be it a natural, induced
or synthesized genetic material, with the initial genetic material of a given
plant, thereby resulting in a characteristic unfound in its natural setting;
“genotype” means the overall genetic data defining the expression of
characteristics of a living organism in conjunction with its environment;
“propagating material” means a plant or any part thereof capable of
producing a new plant by an ordinary agricultural means;
“breeder” means a person who has bred or developed a variety and, as a
consequence thereof, obtained a new plant variety;
“locality” means a group of people residing and commonly inheriting
and passing over culture continually and registered under this Act;
“Commission” means the “Plant Variety Protection Commission;
“competent official” means a person appointed by the Minister for the
execution of this Act;
“Director-General” means the Director-General of the Department of
Agriculture;
“Minister” means the Minister having charge and control of the
execution of this Act.
Section 4. The Minister of Agriculture and Cooperatives shall have
charge and control of the execution of this Act and shall have the power to
appoint competent officials, issue Ministerial Regulations prescribing fees not
exceeding the rate attached hereto and prescribing other activities and issue
Notifications for the execution of this Act.
The Ministerial Regulations and Notifications shall come into force
upon its publication in the Government Gazette.
184
CHAPTER I
Plant Variety Protection Commission
Section 5. There shall be a Plant Variety Protection Commission
consisting of Permanent Secretary of the Ministry of Agriculture and
Cooperatives as Chairman, Secretary-General of the Consumer Protection
Board, Director-General of the Department of Internal Trade, Director-General
of the Department of Intellectual Property, Director-General of the Department
of Fisheries, Director-General of the Royal Forest Department, Director-
General of the Department of Agriculture Extension, Director of the National
Genetic Engineering and Biological Technology, Director of the Institute of
Thai Traditional Medicine, Director of the Botanic Gardens Organisation, and
twelve qualified members appointed by the Council of Ministers as members,
provided that six must be appointed from farmers, one from academics in the
field of plant variety breeding in educational institutions, one from academics
in the field of natural resources conservation in educational institutions, two
from representatives of non-governmental organisations not seeking profit
whose activities are related to agriculture and natural resource conservation,
and two from representatives of associations whose objects involve the
breeding and propagation of plant varieties, as members and Director-General
of the Department of Agriculture as member and secretary.
Qualified members who are farmers must have experience in the
conservation, development or exploitation of plant varieties and shall be
selected from the nomination made by agricultural groups, clubs, associations,
farmers' groups or agricultural co-operatives of all regions, and there shall be at
least one member from each region.
Qualified members from non-governmental organisations not seeking
profit and whose activities are related to agriculture and natural resource
conservation under paragraph one shall be selected from the nomination made
by such non-governmental organisations.
The selection of qualified members shall be in accordance with the rules
and procedure prescribed in the Ministerial Regulation.
Section 6. The Commission shall have the following powers and duties:
(1) to submit recommendations to the Minister on the issuance of
Ministerial Regulations and Notifications under this Act,
(2) to consider and decide appeals against orders of the Director-General
under section 25 and section 26;
(3) to give opinions or advice to the Minister with regard to the
execution of this Act;
185
(4) to prescribe regulations with regard to the studies, experimentation,
research, breeding or development of or into plant varieties from local domestic
plant varieties, general domestic plant varieties and wild plant varieties or any
part thereof;
(5) to prescribe regulations with regard to the management of the Plant
Varieties Protection Fund;
(6) to lay down rules and procedure for giving special remuneration to
State employees or officials who have bred new plant varieties for the agencies
to which they are attached;
(7) to determine agencies or institutions to be authorised to examine and
appraise biological and environmental safety impacts;
(8) to perform such other acts as prescribed by law to be under the
responsibility of the Commission.
Section 7. A qualified member shall hold office for a term of two years.
The outgoing qualified member may be re-appointed but may not serve
for more than two consecutive terms.
Section 8. In addition to the vacation of office upon the expiration of the
term under section 7, a qualified member vacates office upon:
(1) death;
(2) resignation;
(3) becoming a bankrupt;
(4) being an incompetent or a quasi-incompetent person;
(5) having been imprisoned by a final judgment to a term of
imprisonment, except for an offence committed through negligence or a petty
offence.
In the case where the qualified member vacates office before the
expiration of term, the Council of Minister shall appoint other person to fill the
vacancy, but if less than ninety days remain in the term of office of the
qualified member, such appointment may be omitted. The person who is
appointed to fill the vacancy shall be in office for the remaining term of the
person he replaces.
Section 9. At a meeting of the Commission, the presence of not less
than one-half of the total number of members is required to constitute a
quorum.
If the Chairman is not present at the meeting or is unable to perform the
duty, the members present shall elect one among themselves to preside over the
meeting.
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A decision of the meeting shall be by a majority of votes. Each member
shall have one vote. In the case of an equality of votes, the presiding chairman
shall have an additional vote as a casting vote.
In the case where a member is directly or indirectly interested in any
particular matter, that member shall not attend the meeting.
Section 10. In the performance of duties under this Act, the Commission
has the power to appoint a sub-committee for performing such act as entrusted
by the Commission.
A sub-committee under paragraph one shall have the same powers and
duties as those of the Commission in respect of the matter entrusted.
Section 10 shall apply mutatis mutandis to a meeting of a sub-
committee.
CHAPTER II
Plant Varieties
Section 11. A plant variety under this Act shall be of the following
descriptions:
(1) being of uniformity in the particular features of the variety in respect
of shape and appearance or in respect of other characteristics resulting from the
expression of the genotype specific to such plant variety;
(2) being stable in the particular features of the variety which are
capable of expressing such particular features in every cycle of the production
of the propagating material of such plant;
(3) having the particular features distinct from other varieties in respect
of shape or appearance, or having any characteristic resulting from the
expression of the genotype distinct from other plant.
The description of a plant variety under (1) shall not apply to a wild
plant variety.
CHAPTER III
Protection of New Plant Varieties
Section 12. A plant variety capable of registration as a new plant variety
under this Act shall be of the following descriptions:
(1) being a plant variety the propagating material of which has not been
exploited, whether by means of sale or distribution in any manner whatsoever,
in or outside the Kingdom by the breeder or with the breeder’s consent for
more than one year prior to the date of filing the application;
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(2) being distinct from other plant varieties existing on the date of filing
the application, provided that such distinctness is related to the feature
beneficial to the cultivation, consumption, pharmacy, production or
transformation, including the distinctness from the following plant varieties:
(a) plant varieties already registered and protected, whether in or
outside the Kingdom, prior to the date of filing the application;
(b) plant varieties in respect of which application for registration
has been made in the Kingdom and which will subsequently have been
registered.
Section 13. No registration under this Act shall be made of a new plant
variety having a severely adverse impact, directly or indirectly, on
environment, health or public welfare.
A new plant variety derived from genetic modification may be
registered as a new plant variety only upon a successful result of a safety
appraisal with regard to environment, health or public welfare conducted by the
Department of Agriculture or other agency or institution designated by the
Commission, in accordance with the rules and procedure prescribed in the
Ministerial Regulation.
Section 14. The Minister, with the approval of the Commission, may by
publication in the Government Gazette designate any particular type of plant as
a new plant to which protection is to be afforded and any particular type of
plant as being important to national security.
Section 15. An applicant for registration of a new plant variety shall be
a breeder with the following qualifications:
(1) being of Thai nationality or being a juristic person having a head
office in Thailand;
(2) being of the nationality of a country allowing Thai nationals or
juristic persons having head offices in Thailand to apply for protection in that
country;
(3) being of the nationality of a country which is a party to an
international convention or agreement on the protection of plant varieties to
which Thailand is also a party;
(4) having a domicile or carrying out real and effective industry or
business in Thailand or in a country which is a party to an international
convention or agreement on the protection of plant varieties to which Thailand
is also a party.
Section 16. The right to apply for protection of a new plant variety the
breeding of which was made by an employee or a contractor hired to work
under a contract of employment or a contract of hire for the purpose of
breeding a new plant variety shall vest in the employer or the hirer, as the case
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may be, unless otherwise provided in the contract. In this connection, in
registering the new plant variety, the employer or the hirer must also possess
the qualifications under (1), (2), (3) or (4) of section 15.
The right to apply for protection of a plant variety the breeding of which
was made by a State official in the performance of official duties shall vest in
the agency to which that official is attached.
If the employer, the hirer or the agency to which the State official is
attached receives benefit from the breeding of the new plant variety, that
employee, contractor or State official shall be rewarded special remuneration in
addition to his normal wages or salaries, as the case may be.
The entitlement to the special remuneration under paragraph three shall
be in accordance with the rules and procedure prescribed by the Commission.
Section 17. If several persons have jointly bred or developed a new
plant variety, these persons shall have the right to apply for registration thereof
jointly.
In the case where any joint breeder refuses to make a joint application
for registration or cannot be contacted or does not meet the qualifications set
forth in section 15, other joint breeder(s) may apply for registration of that new
plant variety jointly bred in his or their own names.
The joint breeder who fails to join the application for registration may,
at any time before the issuance of a certificate of registration of the new plant
variety, submit an application for joining the former application. Upon receipt
of the latter application, the competent official shall conduct an inquiry as to
the applicant’s eligibility therefor. For this purpose, the competent official shall
notify the date of inquiry, and furnish a copy of the application to the
applicants and the joining applicant.
In conducting the examination under paragraph three, the competent
official may summon the applicants and the joining applicant to give
statements or explanations or furnish documents or evidence for the purpose of
consideration. The competent official shall, upon completion of the
examination, submit his opinion to the Director-General. When the Director-
General has made a decision, it shall be notified to the applicants and the
joining applicant.
Section 18. In the case where several breeders have individually bred or
developed a new and identical plant variety without having done so jointly, the
person who first files an application for the protection of the new plant variety
shall have the right of priority.
If the applications for registration of the new plant variety under
paragraph one are filed on the same day, the applicants shall agree as to
whether the rights thereto shall vest solely in one applicant or in several
applicants jointly. If such an agreement cannot be reached within the time
specified by the Director-General, the parties shall bring an action to the Court
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within ninety days as from the date of the expiration of the time specified by
the Director-General. If no such action is brought to the Court within such
time, those persons shall be deemed to have abandoned the applications for
registration of the new plant variety.
Section 19. The application for registration of a new plant variety shall
be in accordance with the rules and procedure prescribed in the Ministerial
Regulation.
An application shall have the following particulars:
(1) the name of the new plant variety and particulars of essential features
of the new plant variety;
(2) the name of the breeder participating in the breeding or developing
the new plant variety;
(3) details showing the origin of the new plant variety or the genetic
material used in the breeding of the variety or in the development of the new
plant variety, including its breeding process, provided that details enabling
clear comprehension of such process shall also be included;
(4) a statement that the propagating material of the new plant variety in
respect of which the application for registration has been filed and the genetic
material used in the breeding or in the development of the new plant variety
under (3) will be furnished to the competent official for the purpose of
examination thereof within the time specified by the competent official;
(5) an profit-sharing agreement in the case where a general domestic
plant variety or a wild plant variety or any part thereof has been used in the
breeding of the variety for a commercial purpose.
(6) other items of particulars as prescribed in the Ministerial Regulation.
Section 20. The person who has filed an application for registration of a
new plant variety outside the Kingdom may, if an application is filed for
registration of that new plant variety in the Kingdom within one year as from
the date of the first filing of the application outside the Kingdom, make a
request for having the date of first filing of the application for registration of
the new plant variety outside the Kingdom specified as the date of filing of the
application for registration of the new plant variety in the Kingdom, provided
that the country in which the first filing of the application has been made grants
the similar right to Thai nationals and the applicant is of the nationality of such
country.
The competent official may order the applicant under paragraph one to
furnish a copy of the application for registration of the new plant variety filed
in the foreign country together with its translation into Thai or other evidence
within the time prescribed which shall not be less than ninety days.
Section 21. In considering an application for registration of a new plant
variety, the competent official shall examine the following:
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(1) examination of the compliance of the application with section 19;
(2) examination as to the plant variety’s conformity with the description
set out in section 11, its being of the descriptions specified in section 12, its
freedom from prohibitions under section 13 paragraph one and its having the
successful result of the appraisal under section 13 paragraph two.
Provided that this shall be in accordance with the rules and procedure
prescribed in the Ministerial Regulation.
If there incurs any cost in the examination of that plant variety, the
applicant for registration shall pay the actual cost to the competent official
within sixty days as from the date of the receipt of the notification thereof by
the competent official. In the case where the applicant fails to make payment
within the specified time, the applicant shall be deemed to have abandoned the
application.
Section 22. When the competent official has made an examination
under section 21, the competent official shall prepare and submit an
examination report to the Director-General.
When the Director-General has considered the examination report of the
competent official under paragraph one and is of the opinion that the
application for registration of the new plant variety is in compliance with
section 19, the Director-General shall, within thirty days as from the date of the
receipt of the report, make an order for the publication of such application at
the actual expense of the applicant in accordance with the rules and procedure
prescribed in the Ministerial Regulation.
Section 23. Any person who considers that he has a better right than the
applicant for registration of a new plant variety or that the application for
registration of a new plant variety is not in compliance with section 12, section
13, section 15, section 16 or section 20 may submit an objection to the
competent official within ninety days as from the date of the publication under
section 22.
Upon receipt of the objection under paragraph one, the competent
official shall furnish a copy thereof to the applicant. The applicant shall submit
a counter-objection within ninety days as from the date of the receipt of the
copy. If the applicant fails to submit the counter-objection within such period
of time, the application for registration of the new plant variety shall be deemed
as having been abandoned.
The objection and counter-objection shall be accompanied by supporting
documents.
Section 24. For the purpose of the consideration of the objection and
counter-objection, the person addressing the objection and the person
addressing the counter-objection may give additional evidence or statements, in
accordance with the Regulation prescribed by the Director-General.
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The Director-General shall have a decision on the objection and counter-
objection under paragraph one within sixty days as from the date of the receipt
thereof from the competent official.
Section 25. In the case where the Director-General gives a decision that
the person addressing the objection has the better right than the applicant for
registration of the new plant variety, the Director-General shall give an order
rejecting the application for registration thereof. The applicant shall have the
right to appeal to the Commission against the order of the Director-General
within ninety days as from the date of the receipt of the notification of the
Director-General’s order.
In the case where the applicant fails to appeal against the order of the
Director-General or has made an appeal but the Commission makes a decision
affirming the decision of the Director-General, if the person addressing the
objection files an application for registration of the new plant variety within
one hundred and eighty days as from the date of the receipt of the notification
of the Director’s order or the Commission’s decision, as the case may be, it
shall be deemed that the person addressing the objection files the application
for registration on the day the initial applicant has filed the application and it
shall also be deemed that the publication of the application for registration of
the new plant variety filed by the initial applicant is the publication of the
application filed by the person addressing the objection.
Section 26. In the case where the Director-General gives a decision that
the person addressing the objection has no right in the new plant variety in
question, the Director-General shall reject such objection.
The person addressing the objection shall have the right to appeal to the
Commission against the order of the Director-General within ninety days as
from the date of the receipt of the notification of the Director-General’s order.
The Commission shall have a decision on the appeal within ninety days
as from the date of the receipt thereof.
Section 27. When the Commission has made a decision under section 25
or section 26, the applicant for registration of the new plant variety or the
person addressing an objection thereto, as the case may be, shall, if dissatisfied
with the decision of the Commission, have the right to bring an action before
the Court within sixty days as from the date of the receipt of the notification of
the decision. If no such action is brought within such period of time, the
decision of the Commission shall be deemed final.
In the case where the Court gives a final order or judgment that the
person addressing the objection duly has the right in the new plant variety,
section 25 paragraph two shall apply mutatis mutandis.
Section 28. If it appears that the application for registration of the new
plant variety is not in compliance with section 12, section 13, section 15,
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section 16, section 19 or section 20, the Director-General shall give an order
rejecting the application and the competent official shall notify the order to the
applicant and to the person addressing the objection in the case where such
objection has been made under section 23.
If the rejection of the application for registration of the new plant variety
occurs after the publication under section 22, the rejection order shall be
published and section 22 shall apply mutatis mutandis.
Section 29. When the Director-General has thoroughly considered the
examination report of the competent official and the registration process and
finds no hindrance to the registration of the new plant variety, the Director-
General shall give an order for the registration thereof.
The applicant shall pay the fee for the issuance of a certificate of
registration of the new plant variety within sixty days as from the date of the
receipt of the notification thereof. If the applicant fails to pay the fee within the
specified time, it shall be deemed that the application is abandoned.
Upon payment by the applicant of the fee under paragraph two, the
competent official shall effect the registration of the new plant variety and issue
a certificate of registration thereof to the applicant within seven days as from
the date of the receipt of the fee. If the applicant fails to make payment of the
fee within the time specified, the application shall be deemed to have been
abandoned.
A certificate of registration of a new plant variety shall be in
accordance with the form prescribed in the Ministerial Regulation.
Section 30. The Director-General shall publish in the Government
Gazette new plant varieties registered under this Act.
Section 31. The certificate of registration of a new plant variety shall be
valid for the following terms:
(1) in respect of the plant which is capable of giving such fruits as
expected of the specific features of the variety after the cultivation of its
propagating material within the period of not over two years: twelve years;
(2) in respect of the plant which is capable of giving such fruits as
expected of the specific features of the variety after the cultivation of its
propagating material within the period of over two years: seventeen years;
(3) in respect of the plant which is of tree-based utilisation and capable
of giving fruits in accordance with the specific features of the variety after the
cultivation of its propagating material within the period of over two years:
twenty seven years.
The term of the certificate of registration of the new plant variety under
paragraph one shall commence as from the date of its issuance.
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Section 32. The person to whom a certificate of registration of a new
plant variety is issued is the right holder of such new plant variety.
The right holder of the new plant variety may authorise any person to
use his rights in his new plant variety or may assign such rights to other
persons.
In the case where several persons are joint-right holders, the assignment
of rights or the authorisation of the use of rights may be made only with the
consent of all right holders.
The assignment of rights or the authorisation of the use of rights Funder
paragraph two shall be made in writing and registered with the competent
official in accordance with the rules, procedure and conditions prescribed in the
Ministerial Regulation.
Section 33. The right holder of a new plant variety has the exclusive
right to produce, sell or distribute in any manner, import, export or possess for
the purpose of any of the said acts the propagating material of the new plant
variety.
The provisions of paragraph one shall not apply to the following
circumstances:
(1) the act relating to a protected new plant variety without an intention
to use it as propagating material;
(2) the education, study, experiment or research relating to a protected
new plant variety for the purpose of breeding or developing plant varieties;
(3) the act relating to a protected new plant variety committed in good faith;
(4) the cultivation or propagation by a farmer of a protected new plant
variety from the propagating material made by himself, provided that in the
case where the Minister, with the approval of the Commission, publishes that
new plant variety as promoted plant variety, its cultivation or propagation by a
farmer may be made in the quantity not exceeding three times the quantity
obtained;
(5) the act relating to a protected new plant variety for non-commercial
purpose;
(6) the sale or distribution by any means, importation or exportation of,
or having in possession for the purpose of any of the aforesaid activities, the
propagating material of the protected new plant variety which has been
distributed by the right holder or with the right holder's consent.
Section 34. In a sale or distribution of the propagating material of a new
plant variety, the right holder of the new plant variety shall display a mark on
the propagating material of the new plant variety, its container or package.
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The mark under paragraph one shall be in accordance with the form
prescribed by the Director-General.
Section 35. The registration of the transfer of the rights in a new plant
variety by way of inheritance shall be in accordance with the rules and
procedure prescribed in the Ministerial Regulation.
Section 36. When necessity arises for the prevention of diseases, the
promotion of health, the maintenance of public welfare, the preservation and
conservation of environment and biological diversity or for other public
interest, the Minister, with the approval of the Commission, has the power to
issue a Notification prohibiting the production, sale, distribution in any manner,
importation or exportation of new plant varieties for the period of time
specified in the Notification.
For the purposes of the national security, the maintenance of nutritious
stability, the prevention of monopoly or for the purpose of other public
interests, the Minister, with the approval of the Commission, has the power to
issue a Notification authorising general members of the public to do the acts
specified in section 33 paragraph one, provided that appropriate remuneration
shall be paid to the right holder of a new plant variety. Such Notification shall
also specify therein the term of the authorisation and the rates of remuneration.
If, after action has been taken under paragraph two, it appears that the
circumstance under paragraph two cannot be effectively prevented or
alleviated, the Minister, with the approval of the Commission, may revoke the
certificate of registration of that new plant variety.
Section 37. Upon the expiration of three years as from the date of the
registration of a new plant variety, other persons may file an application with
the Director-General for authorisation of the use of the rights under section 33
paragraph one if it appears at the time of such application that there has been
no sale of the propagating material of that new plant variety or the sale thereof
has been made in the quantity insufficient for the need of the people within the
Kingdom or at exorbitant prices unless the right holder can prove that the lack
of sale or the sale in the quantity insufficient for the need of the people within
the Kingdom or at exorbitant prices is caused by the circumstance beyond his
control or that the new plant variety is a derivative intended to be utilised for
the sole production of hybrid seeds provided that the hybrid seeds have been
produced in such quantity sufficient to the need of the people within the
Kingdom and sold at the prices which are not exorbitant.
The Director-General, with the approval of the Commission, has the
power to authorise the use of the rights under section 33 paragraph one upon
payment by the applicant of reasonable remuneration to the right holder of the
new plant variety.
The application for the authorisation of the use of rights in the new plant
variety and the determination of remuneration therefor shall be in accordance
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with the rules, procedure and conditions prescribed in the Ministerial
Regulation.
Section 38. The Director-General, with the approval of the Commission,
has the power to revoke a certificate of registration of a new plant variety in the
following circumstances:
(1) such plant variety is not in conformity with the descriptions set forth
in section 11 and section 12;
(2) the certificate of registration of the new plant variety has been issued
inconsistently with section 13, section 15, section 16, section 17, section 19 and
section 20;
(3) the particulars stated in the application for registration submitted to
the competent official under section 19 are false.
In the case where there exist the circumstance under (1), (2) or (3), any
person may invoke it or bring an action to the Court for an order revoking the
certificate of registration of the new plant variety.
Section 39. The right holder of a new plant variety shall pay an annual
fee at the rate and in accordance with the procedure prescribed in the
Ministerial Regulation and shall make such payment within ninety days as
from the date of the receipt of the certificate of registration of the new plant
variety and within such period of every successive year.
Section 40. The right holder of a new plant variety shall, in the event of
his failure to make payment of the annual fee under section 39, be liable to an
additional fee in the amount equivalent to thirty percent of the annual fee in
arrears.
If the right holder of a new plant variety fails to pay the annual fee and
additional fee within ninety days as from the due date for the payment thereof
under section 39, the Director-General, with the approval of the Commission,
shall have the power to revoke the certificate of registration of such new plant
variety .
Section 41. An application for registration of a new plant variety, an
objection to the registration of a new plant variety, a certificate of registration
of a new plant variety, an application for registration of the licensing of rights
under a certificate of registration of a new plant variety, an application for
registration of the assignment of rights under a certificate of registration of a
new plant variety, a substitute-certificate of registration of a new plant variety
shall be subject to such fees as prescribed in the Ministerial Regulations.
Section 42. In the case where a certificate of registration of a new plant
variety is lost or substantially damaged, the right holder of the new plant
variety may apply for a substitute-certificate in accordance with the rules and
procedure prescribed in the Ministerial Regulation.
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CHAPTER IV
Protection of Local Domestic Plant Varieties
Section 43. A plant variety capable of registration as a local domestic
plant variety under this Act shall be of the following descriptions:
(1) being a plant variety existing only in a particular locality within the
Kingdom;
(2) being a plant variety not registered as a new plant variety.
Section 44. A sui juris person, residing and commonly inheriting and
passing over culture continually, who takes part in the conservation or
development of the plant variety which is of the descriptions specified in
section 43 may register as a community under this Act. For this purpose, there
shall be appointed a representative who shall submit an application in writing
to the Changwad Governor of the locality.
The application shall at least contain the following particulars:
(1) the plant variety jointly conserved or developed and the method of
its conservation or development;
(2) the names of members of the community;
(3) the landscape together with a concise map showing the boundary of
the community and adjacent areas.
The submission of the application and the consideration and approval
thereof shall be in accordance with the rules and procedure prescribed in the
Ministerial Regulation.
Section 45. When a plant variety only exists in any particular locality
and has been conserved or developed exclusively by a particular community,
that community shall have the right to submit, to the local government
organisation in whose jurisdiction such community falls, a request for initiating
an application for registration of the local domestic plant variety in the name of
such community.
Upon receipt of the request from the community under paragraph one,
the local government organisation shall proceed to apply to the Commission for
registration of the local domestic plant variety as from the day documents and
information necessary for the registration have duly been obtained.
In the case where the community under paragraph one is formed as a
farmers' group or co-operative under the law on co-operatives, such farmers'
group or co-operative shall have the right to apply for registration of the local
domestic plant variety on behalf of the community.
Section 46. The application for registration, the consideration of the
application and the issuance of a certificate of registration of a local domestic
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plant variety shall be in accordance with the rules and procedure prescribed in
the Ministerial Regulation.
Section 47. When registration has been made for the protection of a
local domestic plant variety of any locality, that locality shall have the
exclusive right to develop, study, conduct an experiment or research in,
produce, sell, export or distribute by any means the propagating material
thereof. For this purpose, the local government organisation, farmers' group or
co-operative to which the certificate of registration of the local domestic plant
variety has been granted shall be the right holder of such plant variety in the
name of the said locality.
The provisions of paragraph one shall not apply to the following
circumstances:
(1) the act relating to a protected local domestic plant variety without an
intention to use it as propagating material;
(2) the act relating to a protected local domestic plant variety committed
in good faith;
(3) the cultivation or propagation by a farmer of a protected local
domestic plant variety from the propagating material made by himself,
provided that in the case where the Minister, with the approval of the
Commission, publishes that local domestic plant variety as promoted plant
variety, its cultivation or propagation by a farmer may be made in the quantity
not exceeding three times the quantity obtained;
(4) the act relating to a protected local domestic plant variety for non-
commercial purpose.
Section 48. A person who collects, procures or gathers a local domestic
plant variety or any part thereof for the purposes of variety development,
education, experiment or research for commercial interest shall make a profit-
sharing agreement in relation to the profits derived from the use of such local
domestic plant variety.
In authorising any person to carry out the act under paragraph one and in
making the profit-sharing agreement, the local government organisation,
farmers' group or co-operative to which the certificate of registration of the
local domestic plant variety is granted shall make the agreement in the name of
the community, provided that approval of the Commission shall first be
obtained.
Section 49. Twenty percent of the profits derived from authorising
another person to use the rights in the local domestic plant variety shall be
allocated to the persons who conserve or develop the plant variety, and sixty
percent thereof to the community as its common revenue and twenty percent
thereof to the local government organisation, the farmer's group or the co-
operative that makes the agreement.
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The profit-sharing among the persons who conserve or develop the plant
variety shall be in accordance with the regulations prescribed by the
Commission.
In the case of any dispute in connection with the allocation of profits
under paragraph one, it shall be decided by the Commission.
Section 50. Section 31 shall apply mutatis mutandis to the term for
which a certificate of registration of a local domestic plant variety is granted.
The term of the certificate of registration of a local domestic plant
variety under paragraph one may be extended for each term of ten years if the
Director-General considers that such plant variety is still of the descriptions
specified in section 43 and such community is still of the description specified
in section 44 and section 45.
The application for extension of the term of protection and the
permission thereof shall be in accordance with the rules and procedure
prescribed in the Ministerial Regulation.
Section 51. Section 36 and section 37shall apply mutatis mutandis to a
local domestic plant variety.
CHAPTER V
Protection of General Domestic Plant Varieties and Wild Plant Varieties
Section 52. A person who collects, procures or gathers general domestic
plant varieties, wild plant varieties or any part of such plant varieties for the
purposes of variety development, education, experiment or research for
commercial interest shall obtain permission from the competent official and
make a profit-sharing agreement under which the income accruing therefrom
shall be remitted to the Plant Varieties Protection Fund in accordance with the
rules, procedure and conditions prescribed in the Ministerial Regulation.
The profit-sharing agreement shall at least have the following
particulars:
(1) the purposes of the collection and gathering of the plant variety;
(2) the amount or quantity of samples of the intended plant variety;
(3) the obligations of the person to whom permission is granted;
(4) the stipulation as to intellectual property rights in the products which
result from the development, study, experiment or research of or into the plant
variety and which are derived from the use of the plant variety under the
agreement;
(5) the stipulation as to the amount or rate of, or the term for, the profit-
sharing under the profit-sharing agreement in respect of products derived from
the use of the plant variety thereunder;
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(6) the term of the agreement;
(7) the revocation of the agreement;
(8) the stipulation as to the dispute settlement procedure;
(9) other items of particulars as prescribed in the Ministerial Regulation.
Section 53. A person who conducts a study, an experiment or research
of or into a general domestic plant variety or a wild plant variety or any part
thereof for a non-commercial purpose shall comply with the Regulation
prescribed by the Commission.
CHAPTER VI
Plant Varieties Protection Fund
Section 54. There shall be established in the Ministry of Agriculture and
Co-operatives a fund call the “Plant Varieties Protection Fund” to expended for
the purposes of assisting and subsidising activities related to the plant varieties
conservation, research and development, consisting of the following property:
(1) income accruing from profit-sharing agreements under section 52;
(2) money or property received from the registration of plant varieties;
(3) subsidies from the Government;
(4) donated money or property;
(5) fruits or other benefits accruing from the Fund.
Money or other property under paragraph one shall be remitted to the
Fund without having to remit the same as State revenue.
Section 55. The money in the Fund shall be expended for the following
activities:
(1) assisting and subsidising any activities of communities in connection
with the conservation, research and development of plant varieties;
(2) serving as expenses of local government organisations for the
purposes of their subsidising the conservation, research and development of
plant varieties of communities;
(3) serving as expenses in the management of the Fund.
The management of the Fund and the control of the expenses therefrom
shall be in accordance with the Regulation prescribed by the Commission with
the approval of the Ministry of Finance.
Section 56. There shall be a Fund Committee consisting of Permanent
Secretary of the Ministry of Agriculture and Co-operatives as the Chairman
and not less than seven other members appointed by the Commission and the
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Director-General of the Department of Agriculture shall be the secretary and a
member.
Section 57. The Fund Committee shall have the powers and duties as
follows:
(1) to propose to the Commission directions, rules, conditions for as
well as priorities of the disposition of the money in the Fund within the objects
specified in section 55;
(2) to prescribe regulations in connection with rules and procedure for
the allocation of, and the request for, grants or subsidies from the Fund;
(3) to consider and allocate the money in the Fund as expenses within
the objects specified in section 55, in accordance with the directions, rules,
conditions and priorities determined by the Commission;
(4) to consider and approve the request for the promotion and assistance
under section 55;
(5) to perform any other activities as entrusted by the Commission.
Section 58. Section 7 and section 8 shall apply to the term of office and
the vacation of office of the Fund Committee mutatis mutandis.
Section 9 shall apply to a meeting of the Fund Committee mutatis
mutandis.
Section 59. The money forming the Plant Varieties Protection Fund and
accruing from the exploitation of general domestic plant varieties under profit-
sharing agreements under section 52 shall be allocated to the local government
organisation which is the source of the exploitation of such general domestic
plant varieties, in accordance with the rules, procedure and rate prescribed in
the Ministerial Regulation.
Section 60. Within one hundred and twenty days as from the end of a
calendar year, the Fund Committee shall present a balance-sheet and the
statements showing the revenues and expenses in the Fund during the previous
year to the Office of the Auditor-General for its inspection and audit and shall
then present them to the Commission.
The Commission shall submit such balance-sheet and statements of
revenues and expenses to the Minister and the Minister shall submit them to the
Council of Ministers for information and publish them in the Government
Gazette.
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CHAPTER VII
Protection of Rights of Right Holders of Plant Varieties
Section 61. In the case where there is an infringement of the right of the
right holder of a new plant variety or the right holder of a local domestic plant
variety under section 33 or section 47, as the case may be, the Court has the
power to order the person committing the infringement to pay the right holder
such amount of compensation as the Court deems appropriate, having regard to
the gravity of the damage and loss of benefits, as well as the costs necessary for
the enforcement of rights of the right holder.
Section 62. All plant varieties or articles in possession of the person
committing the act infringing the right of the right holder of a new plant variety
or the right holder of a local domestic plant variety under section 33 or section
47, as the case may be, shall be confiscated.
All articles confiscated by the Court shall vest in the State and shall be
proceeded with by the Department of Agriculture in accordance with the
regulations prescribed by the Director-General with the approval of the
Commission.
CHAPTER VIII
Penalties
Section 63. Any competent official, having the responsibility in
connection with registration of new plant varieties for protection thereof,
unlawfully or without consent of the applicant for registration, uses or allows
other persons to use or gives to other persons the propagating material of the
new plant variety or the genetic material which has been presented to him as in
the statement under section 19 (4) shall be liable to imprisonment for a term not
exceeding two years or to a fine not exceeding four hundred thousand Baht or
to both.
Section 64. Any person who commits any act under section 33 or
section 47 without authorisation from the right holder of the plant variety shall
be liable to imprisonment for a term not exceeding two years or to a fine not
exceeding four hundred thousand Baht or to both.
Section 65. Any right holder of a new plant variety who fails to comply
with section 34 shall be liable to imprisonment for a term not exceeding one
month or to a fine not exceeding twenty thousand Baht or to both.
Section 66. Any person who fails to comply with section 48 or section
52 shall be liable to imprisonment for a term not exceeding two years or to a
fine not exceeding four hundred thousand Baht or to both.
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Section 67. Any person who forges or imitates a mark or does any act
for the purpose of misleading other persons that a given plant variety is the
protected plant variety under this Act shall be liable for imprisonment for a
term of six months to five years and to a fine of twenty thousand to two
hundred thousand Baht.
Section 68. Any person who, in applying for registration of a new plant
variety or local domestic plant variety, gives false statements to the competent
official with a view to obtaining a certificate of registration of the new plant
variety or a certificate of registration of the local domestic plant variety, as the
case may be, shall be liable to imprisonment for a term not exceeding two years
or to a fine not exceeding four hundred thousand Baht or to both.
Section 69. In the case where the person who commits an offence
punishable under this Act is a juristic person, the persons representing that
juristic person shall also be liable to the penalty imposed by the law for such
offence unless it is proved that the act of such juristic person has been
committed without their knowledge or consent.
Countersigned by:
Chuan Leekpai
Prime Minister
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Rates of Fees
1. An Application for Registration of a New Plant Variety 1,000 Baht each
2. An Application for an Objection to an Application for
Registration of a New Plant Variety 1,000 Baht each
3. A Certificate of Registration of a New Plant Variety 1,000 Baht each
4. Annual Fee for the Protection of a New Plant Variety 1,000 Baht per year.
5. An Application for Registration of Authorisation
of the Use of Rights under a Certificate of Registration
of a New Plant Variety 500 Baht each
6. An Application for Registration of the Assignment
of Rights under a Certificate of Registration of a New
Plant Variety 500 Baht each
7. Substitute Certificate of Registration of a New Plant
Variety 500 Baht each
Certified correct translation
Dr. Ackaratorn Chularat
(Secretary-General of the Council of State)
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BIOGRAPHY
Name Miss Sirakarn Meeklam
Date of Birth May 23, 1987
Educational Attainment 2010 : Bachelor of Laws, Chiang Mai University
Work Position Contract Administration
Electricity Generating Authority of Thailand
(EGAT)
Work Experiences 2010 – 2012 : Legal Advisor
Double A (1991) Public Co., Ltd.
