Norms For IP Protection of Plants in US, India & Europe

In most countries, plants and inventions directed to plants or plant products (e.g. seeds) are not eligible for a patent grant despite of widely known commercial uses of new plant varieties in agriculture, horticulture, medicine and other industries. This emphasizes the importance of intellectual property protection of novel plant varieties.

But in some countries including United States, India & some European countries, an entity may make seek patents on plants and plant parts/products, provided that the legal criteria for patentability are met. Consequently, plants are patentable subject matter in US under 35 U.S.C. 101.

Three (3) ways to secure IP protection for plants in US are-

1. Utility Patents –

• Requires a plant variety is non-naturally occurring, useful, non-obvious and novel over previously known, published, occurring plant or part thereof; and used plant varieties. It shall be disclosed by means of a seed i.e. deposited in a recognized repository. The seeds must also be made publicly available after issuance of the patent.
• The scope of protection, however, is limited to asexually or sexually produced plant or part thereof; could cover mutants; method of producing/use of plants.

The following two (2) types of IP protections protect rights of plant variety itself.

2. Plant Patents
    Only protection available for a plant variety i.e. actually isolated     from a cultivated area.

Qualifying Criteria

• A plant variety is asexually reproduced
• Was invented, or discovered in a cultivated area
• Non-obvious and novel over previously known, published, and used plant varieties
• Not a tuber food part
• Distinct from related plants by at least one distinguishing characteristic

3. PVPA Certificates

This option should be pursued as an alternative to utility patent if there are a number of known similar varieties and the sexually produced plant is distinctive (even if it is not obvious).

Qualifying Criteria

• A plant variety is sexually reproduced
• Its 2,500 untreated viable seeds are supplied, or if tuber, deposited
• Proof of uniformity and genetic stability is provided
• Is distinct over varieties in the PVP databases as well as other known and used varieties

Of all the above, utility patent provides the largest scope of IP protection for plants in US.

IP protection for plants in INDIA

The requirements for plant protection are novelty, distinctness, uniformity and stability, based on the 1991 UPOV Convention.
However, farmers are free to save, use, sow, re-sow, exchange, share or sell their farm produce including seed of a protected variety under Article 39(iv).
In India, selling the seed that is branded with the Breeders name is barred. The breeder has control of the commercial marketplace but cannot threaten the farmer’s ability to practice his livelihood.

IP Protection for plants in Europe 

Community Protection of Plant Varieties (CPVR) is the intellectual property right which confers protection to all ‘new’ botanical genera and species, including their hybrids, provided that the varieties meet exactly the same requirements as outlined under the UPOV Convention.

It is operative throughout Europe and exists alongside individual European countries national plant protection legislation.

A CPVR can only be valid (or cancelled) across all EU countries, not selected individual countries.

Also, it is not possible to hold protection for the same plant variety under both the Community and a national system at the same time. Where a CPVR is granted in relation to a variety for which a national right has already been granted, the national right is suspended for the duration of the CPVR.

Please note that Article 53(b) of EPC states that “plant variety” or biological process for its production is unpatentable.

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