Updated: Thursday April 27, 2017/AlKhamis
Sha’ban 01, 1438/Bruhaspathivara
Vaisakha 07, 1939, at 06:04:01 PM
The Plant Breeders’ Rights Act, 2016
ACT NO. L OF 2016
[7th December, 2016]
An Act to encourage the development of new plant
varieties and to protect the rights of breeders of such varieties.
WHEREAS the establishment of a viable seed industry is
essential to the food security in
AND WHEREAS it is expedient to make provisions for the
development of new plant varieties and protection of the rights of breeders of
such varieties providing exceptions to scientific researchers and farmers for
matters connected therewith or incidental thereto;
AND WHEREAS it is imperative to give effect to
the .provisions of subparagraph (b) of paragraph 3 of Article 27 in Part
II of the Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS) which the Government of Pakistan has ratified, relating to protection
of new plant varieties;
AND WHEREAS the Provincial Assemblies of Balochistan,
Khyber Pakhtunkhwa, Punjab, and Sindh have passed resolutions under Article 144
of the Constitution of the Islamic Republic of Pakistan to the effect that
Majlis-e-Shoora (Parliament) may regulate and make law on Plant Breeders’_
Rights and matters connected therewith;
It is hereby enacted as follows:---
1. Short title, extent and commencement.—(1)
This Act may be called the Plant Breeders’ Rights Act, 2016.
(2) It extends to the whole of
(3) It shall come into force at once except the
provisions of section 10, which shall come into force on such date as the
Federal Government may, by notification in the official Gazette; appoint.
CHAPTER I
PRELIMINARY
2. Definitions. In this Act, unless there is
anything repugnant to the subject or context,---
(i) ”applicant” means any natural or legal person
who has submitted an application for the grant of Plant Breeders’ Rights under
this Act;
(ii) ”breeder” means a natural or legal person,
an institution, a fanner or an organization which has bred, discovered or
developed a new plant variety;
(iii) ”Committee” means the Plant Variety
Protection Advisory Committee established under section 10;
(iv) ”certificate” means the certificate of
protection of plant breeders’ right issued with regard to an essentially
derived variety under subsection (3) of section 20 or (with regards to a new
plant variety) under .section 21;
(v) ”commercial” means a business activity
related to the production, processing or merchandising seeds or propagating
material including sale, distribution or resale for the purpose of making
profit;
(vi) ”Convener” means the Convener of the Plant
Variety Protection Advisory Committee appointed under section 10;
(vii) ”Director General” means the Director
General of the Federal Seed Certification and Registration Department;
(viii) ”Distinctness, Uniformity and Stability
(DUS) examination” means plant variety examination for distinctness, uniformity
and stability carried out by the Federal Seed Certification and Registration
Department;
(ix) ”Department” means the Federal Seed
Certification and Registration Department;
(x) ”essentially derived variety” means a variety
derived from a protected variety where the protected variety is not itself an
essentially derived variety, while it retains the expression of essential
characteristics that result from the genotype or combination of genotypes of
the initial variety and,---
(a) it is clearly distinguishable from such
initial variety, and
(b) it 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
genotypes of such initial variety;
(xi) ”export” with its grammatical variations and
cognate expressions means to take out of
(xii) ”farmer” means any legal or natural person
who cultivates crops either through cultivating land himself or through a
person employed for the purpose;
(xiii) ”genetically modified plant variety” means
plant varieties which have been bred by genetic engineering involving molecular
techniques that modify, recombine and transfer genes or segments of genetic
material and includes recombinant deoxyribonucleic acid (DNA) techniques that
transfer genes or segments of genetic material between genotypes (species that
have no probability of eNchanging genes in nature) and shall also apply to
plant varieties derived from a living modified organism;
(xiv) ”hybrid” means (1) the first generation
offspring of a cross between two individuals (plants) differing in one or more
genes; (2) the progeny of a cross between species of the same genus or of
different geneya;
(xv) ”import” with its grammatical variations and
cognate expressions means to bring into
(xvi) ”invention” means any new and useful
product or process, in any field of technology and includes any new and useful
improvement of either of them;
(xvii) ”Local communities” means the human
population in a distinct ecological area who depend directly on its
biodiversity and ecosystem goods and services for all or part of their
livelihood and who have developed or acquired traditional knowledge as a result
of this dependence;
(xviii) ”Ministry” means Ministry of National
Food Security and Research;
(xix) ”National Bio-safety Committee” means the
committee established by the Federal Government under clause (d) of
section 15;
(xx) ”plant” means a living organism classified
in Kingdom Plantae;
(xxi) ”Plant Breeders’ Rights Journal” means the
journal published by the Registry;
(xxii) ”plant variety” means a plant grouping
within a single botanical taxon of the lowest known rank, which grouping,
irrespective of whether the conditions for the grant of a new plant varieties
are fully met, may be,—
(a) defined by the expression of the
characteristics resulting from a given genotype or combination of genotypes;
(b) distinguished from any other plant grouping
by the expression of at least one of the said characteristics; and
(c) considered as a unit with regard to its
suitability of the plant grouping for being propagated unchanged;
(xxiii) ”prescribed” means prescribed by the
rules made under this Act;
(xxiv) ”protected variety” means a plant variety
for which a certificate of protection of Plant Breeders’ Rights has been issued
under this Act;
(xxv) ”public sector research institution” means
a research institution under the control of the Federal Government or a
Provincial Government receiving financial support from the Government;
(xxvi) ”register” means the register of protected
plant varieties as provided under section 9;
(xxvii) ”Registrar” means the Registrar appointed
under section 5;
(xxviii) ”Registry” means the Plant Breeders’
Rights Registry established under section 3;
(xxix) ”rules” mean rules made under this Act;
and
(xxx) ”terminator technology” means genetic
modification that includes gene or gene sequences which restrict germination of
the seed produced by the plant variety during the next subsequent year of Slanting.
CHAPTER II
ADMINISTRATION
3. The Plant Breeders’ Rights Registry.—(1)
Notwithstanding the provisions contained in the Intellectual Property
Organization of Pakistan Act, 2012(XXII of 2012), for the purposes of this Act,
the Federal Government shall establish a Registry “The Plant Breeders’ Rights
Registry” under the Ministry of National Food Security and Research.
(2) The headquarter of the Registry shall be at
Islamabad and for the purpose of facilitating the applicants, the Ministry of
National Food Security and Research may, with the prior approval of the Federal
Government, set up offices of the Registry at such places, as it may deem
necessary, as and when required.
(3) The Ministry of National Food Security and
Research may, with the prior approval of the Federal Government, create posts
and appoint such officers, employees, experts and consultants, as it may
consider necessary for the performance of the functions of the Registry, having
such qualifications and experience as may be prescribed.
4. Functions of the Registry. The Registry shall
perform the following functions, namely:---
(a) to facilitate protection of new plant
varieties subject to such terms and conditions and in the manner as may be
prescribed;
(b) to issue certificates under this Act;
(c) to ensure the maintenance of the register of
protected plant varieties;
(d) to
promote the development of new varieties of plants, by such measures as it
thinks fit, and to protect the rights of the farmers and breeders as provided
under this Act;
(e) to manage characterization and documentation
of varieties protected under this Act;
(f) to collect 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 Pakistan or in any Other
country, for compilation and publication; and
(g) to take all actions necessary for its smooth
functioning.
5. Officers and employees of the
Registry.—(1) The Federal Government shall appoint a Registrar who shall
execute the activities of the Registry with the assistance of such officers and
staff as may be appointed under sub-section (3) of section 3 and shall be under
the administrative control of the Ministry of National Food Security and
Research.
(2) The Registry shall function under the direct
supervision of the Registrar who shall coordinate its activities with the
Federal Seed Certification and Registration Department. The Registrar may, with
the prior approval of the Ministry of National Food Security and Research
delegate any of its powers and functions to any other officer of the Registry.
(3) The Registrar with the consent of the Director
General may advise the Federal Government to transfer as many officers arid
officials as it may deem fit from Federal Seed Certification and Registration
Department for the proper functioning of the Registry.
6. Functions of the Registrar.—(1) The Registrar
shall,---
(a) execute and implement policy directives,
rules, regulations and resolutions issued by the Federal Government or
Ministry, as the case maybe;
(b) carry out the administration, management and
functional activities of the Registry; -
(c) suggest measures for the enco uragement
and development of new varieties of plants and to protect the rights of farmers
and breeders;
(d) impose any terms and conditions for research
and experimental use or export of any registered plant variety developed from
local genetic resources;
(e) request the advice of the Plant Variety
Protection Advisory Committee in case of any dispute;
(f) develop characterization and documentation of
varieties protected under this Act; and
(g) to facilitate cataloguing of all varieties of
plants.
(2) In the discharge of his functions, the Registrar
shall coordinate with the Director General, from time to time.
7. Registrar to have certain powers of the
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of any
document;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of
witnesses or documents; and
(e) awarding costs.
8. Registry to carry a seal. There shall be
a seal of the Registry and all orders and decisions of the Registrar shall be
issued under the seal.
(2) For the purposes of this Act a new plant variety
shall be deemed to be,---
9. Register of protected plant
varieties. For the purposes of this Act, a Register of protected
plant varieties shall be kept at the Registry under the supervision of the
Registrar. Names of all the plant varieties protected under this Act along with
the names and addresses of respective breeders, the right of such breeders in
respect of the protected variety, the particulars of the denomination of each
protected variety, its seeds or other propagating material along with
specification and salient features “thereof and such other matters as may be
prescribed shall be entered in this Register.
10. Establishment of the Plant Variety Protection
Advisory Committee.—(1) The Federal Government shall establish a Plant Variety
Protection Advisory Committee consisting of a Convener and such other members
from the public and private sectors, as it may deem fit.
(2) The Committee shall advise the Ministry or the
Registrar, as the case may be, on such scientific and technical issues which
may be referred to it.
(3) An officer, not below the level of a Director of
the Registry, shall be ex-officio Secretary of the Committee.
(4) The Committee shall meet as and when required to
perform its functions.
(5) The Committee may co-opt any other person who is
an expert in a specific field of technology when a question related to that
field of technology is under consideration.
(6) The Committee may, with the prior approval of the
Ministry, make rules for regulating its business.
CHAPTER
APPLICATION FOR PROTECTION
11. Application for grant of plant breeders’
rights. Any person specified in section 13 may make an application
for grant of plant breeders’ rights to the Registrar for protection of a new
plant variety of the genera or species prescribed by the Federal Government.
12. Criteria for protection of plant breeders’
rights.—(1) A new plant variety shall be protected under this Act, if it
conforms to the criteria of novelty, distinctness, uniformity, stability and
designated by an acceptable denomination.
(2) For the purposes of this Act a new plant variety
shall be deemed to be,---
(a) novel, provided that that,---
(i) it has not been sold or marketed by or with
the agreement of the applicant, for more than one year in
(ii) it has not been sold or marketed by or with
the agreement of the applicant, for more than six years in the case of trees or
vines and for more than four years in the case of all other plants in a foreign
country before filing of the application for a certificate under this Act;
(b) distinct, if it clearly differs by one or
more identifiable morphological, physiological or other characteristics from
any other variety whose existence is a matter of common knowledge on the date
of this application. In particular, the filing of an application for granting
of a certificate for another variety or for entering of another variety in the
Register, in any country, shall be deemed to render the other variety a matter
of common knowledge from the date of the applieation, provided that the application
leads to the granting of a certificate or to the entering of the said other
variety in the register of varieties, as the case may be;
(c) unifonb, 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 relevant characteristics
remain unchanged after repeated propagation or in the case of a particular
cycle of propagation, at the end of each such cycle; and
(e) acceptable denomination, if the denomination
given to such variety is capable of identifying such variety and must not be
liable to mislead or to cause confusion concerning the characteristics, value
or identity of the variety or the identity of its breeder and must also not be
contrary to law, public order or ethics.
13. Right to apply for a certificate.—(1) An
application for protection under section 15 may be made by,---
(a) the owner of a variety or his successor in
title subject to the conditions and requirement of this Act. For the purposes
of this clause the owner shall be the breeder or discoverer of the variety or
the successor in title or either of them. The owner may be a natural or legal
person, but where the applicant is a legal person, the breeder of the variety shall
be named in the application; and
(b) any person authorized in the prescribed
manner by a person specified under clause (a), to make the application on his
behalf.
(2) In proceedings before the Registrar for the grant
of a certificate, the applicant shall be deemed to be entitled to such a grant.
In the case where two or more breeders independently develop the same variety
and apply for protection, the entitlement for rights shall rest with the person
who first applied for protection.
(3) When two or more persons have jointly bred or
discovered the variety for which protection is sought, they shall be considered
joint breeders. One joint breeder may file an application for-Plant Breeders’
Rights naming all of the joint breeders. A Certificate of Plant Breeders’
Rights shall be issued in the name of all of the joint breeders.
(4) The legal representative of a deceased breeder and
of those under legal incapacity may apply for a certificate on behalf of such
person under the same conditions and requirements as apply to other owners of
varieties.
(5) In case of public sector breeders, the institute
that develops the plant variety shall be entitled to apply for a certificate
and the plant variety-developing institute directly involved in the research
will be entitled to rights.
(6) The breeders working in the public sector will be
eligible to register a variety under their own name at least five years after
retirement or leaving government service.
(7) In case of private sector employed breeders, the
employer company or breeder that develops the plant variety shall be entitled
to apply for a certificate:---
Provided that the breeders’ right for new plant
variety during the course of his employment in the area of activity of the
employer shall, in the absence of contractual obligation to the contrary,
belong to the breeder, unless the employer proves that the new variety could
not have been made without the use of employer’s facilities, equipment
necessary for the development of new plant variety.
(8) The plant breeders from private sector will have
to give a certificate or affidavit to the effect that the variety has, or has
not, been developed at any stage utilizing the breeding material obtained from
public sector research institution.
14. Plant variety denomination. Every applicant in his
application shall assign an appropriate and distinct denomination in accordance
with the prescribed rules to a variety with respect to which the applicant is
seeking rights under this Act.
(2) Where the denomination assigned to the variety
does not satisfy the requirements specified in the rules, the Registrar may
require the applicant to propose another denomination within such time as may
be prescribed.
(3) Notwithstanding anything contained in the Trade
Marks Ordinance 2001 (XIX of 2001), a denomination assigned to a variety shall
not be protected as a mark.
15. Requirements for an application for protection of
rights. Every application for protection shall,---
(a) be with respect to a new plant variety;
(b) state an appropriate denomination assigned to
such variety by the applicant;
(c) be accompanied by an affidavit sworn by the
applicant declaring that such variety does not contain any gene or gene
sequence involving terminator technology;
(d) in case of genetically modified plant
variety, provide a certificate from the National B io-safety Committee
constituted by the Federal Government to this effect that the genetically
modified plant variety shall have no adverse effect on the environment, human,
animal or plant life and health;
(e) be in such form as may be prescribed;
(f) contain a complete identification data of the
parental lines from which the variety has been derived along with the
geographical location in or outside Pakistan from where the genetic material
has been taken setting forth its novelty, parentage or pedigree, breeding
history and a drawing or photograph to understand and evaluate the novelty of
the variety;
(g) be accompanied by written consent of the
authority representing public sector, private sector or the local community in
case where the plant variety is developed from traditional varieties;
(h) be supported by documents relating to the
compliance of any law regulating access to genetic or biological resources;
(j) be accompanied by a statement containing a
brief description of the variety bringing out its characteristics of novelty,
distinctness, uniformity and stability as required for protection and
descriptions, DNA profile and drawings or photographs which disclose clearly
the distinctive characteristics of the variety from other varieties of the same
crop;
(j) be
accompanied by such fee as may be prescribed;
(k) be filed in the Registry; and
(l) be accompanied by proof of the right to make
the application, where such application is made by virtue of a succession or an
assignment of the right for protection.
16. Testing.—(1) Every applicant shall, alongwith the
application made under section 13, make available to the Registrar such
quantities of seeds or propagating material, of a variety in respect of which
protection is sought by way of such an application, as required for the purpose
of conducting “Distinctness, Uniformity and Stability (DUS)” tests to evaluate
whether such variety along with parental material conform to the prescribed
standards as may be specified by regulations.
(2) The Registrar may make reference for the conduct
of distinctness, uniformity and stability (pus) trials or any other specific
test required to the Federal Seed Certification and Registration Department as
may be prescribed:---
Provided that the Registrar or Federal Seed
Certification and Registration Department to whom such seed has been sent for
conducting the tests shall keep such seed in such manner and in such condition
that its viability and quality shall remain unaltered as may be prescribed. Its
access to unauthorized person shall not be allowed. Similarly, data of parental
lines and other documents shall be protected from disclosure to unauthorized
persons. Any violation by any person shall be penalized as prescribed in rules.
(3) The applicant shall deposit such Fee charges as
may be prescribed for conducting the tests referred to in sub-sections (1) and
(2).
(4) The tests under sub-sections (1) and (2) shall be
conducted in such manner and by such method as may be prescribed.
17. Amending the application.—(1) On receipt
of an application, the Registrar may, within three months after making any such
inquiry, as he thinks fit with respect to the particulars contained in such
application, accept the application or make the acceptance subject to such
conditions or limitations as he may deem fit.
(2) Where the Registrar is satisfied that the
application does not comply with the requirements of this Act or any rules made
thereunder, he may,—
(a) require the applicant to amend the
application to his satisfaction; or
(b) reject the application:---
Provided that no application shall be rejected unless
a notice has been given to the applicant stating the grounds for rejection and
the applicant has been given an opportunity of presenting his case in person or
through his authorized agent, as the case may be.
18. Advertisement of application.—Where an
application for protection of a variety has been accepted, the Registrar shall
as soon as is practicable after such acceptance, cause such application to be
advertised in the prescribed manner together with the conditions or
limitations, if any, subject to which it has been accepted and the
specifications of the variety for protection of which such application is made
including its photographs or drawings, calling for objections from any person
interested in the matter.
19. Opposition to protection.—(1) At any time,
within four months from the date of advertisement of an application under
section 18, any person may give notice in writing and with documentary evidence
to the Registrar of opposition to the grant of rights, on payment of the
prescribed fee and on any of the following grounds, namely:---
(a) that the person opposing the application is
entitled to the rights for the new variety as against the applicant;
(b) that the variety is not protectable within
the meaning of this Act;
(c) that the grant of a certificate may not be in
the public interest or against public order; or
(d) that the variety may have adverse effects on
the environment, human, animal or plant health.
(2) Where a notice is given under sub-section (1), the
Registrar shall give a notice of the opposition to the applicant, alongwith a
copy of such notice of opposition, within two months’ from the receipt of the
notice of opposition and the applicant shall send within two months of the
receipt of this notice of opposition to the Registrar 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.
(3) If the applicant sends such a counter statement,
the Registrar shall serve a copy thereof on the person giving notice of
opposition.
(4) 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 to the applicant
and the opponent an opportunity of being heard.
(5) The Registrar shall, after hearing the applicant
and the opponent, and after due consideration of the evidence decide whether
and subject to what conditions or limitations, if any, the right-is to be
granted.
(6) 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 Pakistan, the Registrar may require
him to give security for the costs of proceedings before him and in default of
such security being given may treat the opposition or application, as the case
may be, as abandoned.
(7) 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.
(8) The Registrar shall ‘consider all the grounds on
which the application has been opposed and after giving reasons thereof, by
order, uphold or reject the opposition.
(9) When a new plant variety is protected by the
Registrar, he shall issue a certificate in terms of section 24.
20. Protection of essentially derived variety.—(1) An
application for the protection of an essentially derived variety of the genera
or species prescribed by the Federal Government may be made to the Registrar by
or on behalf of any person referred to in section 13 and in the manner
specified in section 15 as if for the word “variety” the words “essentially
derived variety” have been substituted therein and shall be accompanied by such
documents and fee as may be prescribed.
(2) On receipt of an application under sub-section
(1), the Registrar shall have any such essentially derived variety examined in
order 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.
(3) When the Registrar is satisfied on the report of
the test referred to in sub-section (2) as to the fact that the essentially
derived variety has been derived from the initial variety, he may enter such
variety in the Register and issue a certificate to this effect.
(4) Where the Registrar is not satisfied on the report
of the test referred in sub-section (2) that the essentially derived variety
has been derived from the initial variety he shall reject the application.
(5) The rights of the breeder of a new plant variety
contained in this Act shall also apply to the breeder of an essentially derived
variety:
Provided that the authorization by the breeder of the
initial variety to the breeder of essentially derived variety may be subject to
such terms and conditions as both the parties may mutually agreed upon.
(6) An essentially derived variety shall not be
protected under this section unless it satisfies the requirements of section 18
as if for the word “variety”, the words “essentially derived variety” have been
substituted therein.
CHAPTER IV
THE CERTIFICATE OF PLANT BREEDERS’ RIGHTS
21. Issuance of the
Certificate. The certificate shall be issued, on payment of such fee
as may be prescribed, in the name of the Government of Pakistan and shall be
signed by the Registrar. The certificate shall be recorded in the Regiker and
the record shall be made publicly available during ordinary business hours.
Notice of issuance of the certificate shall be published in the Plant Breeders’
Rights Journal. There shall be annexed to the certificate a definitive
description of the protected plant variety.
22. Rights of the plant breeders.—(1) Subject to
the provisions of this Act the owner of a protected variety shall have the
following exclusive rights in respect of that variety, namely:---
(a) offering for sale or selling or marketing of
the reproductive or vegetative propagating material of the protected variety in
(b) importing the reproductive or vegetative
propagating material of the protected variety into
(c) conditioning or multiplying the reproductive
or vegetative propagating material of the protected variety;
(d) carrying out any of the acts identified in
clauses (a), (b), and (c) in relation to an essentially derived variety
provided the protected variety is not itself an essentially derived variety;
(e) instigating or promoting any of the acts
identified in clauses (a), (b), (c) and (d);
(f) authorizing any person to produce, sell,
market or otherwise deal with a protected variety; and
(g) stocking for any of the purposes mentioned in
clauses (a) to (d).
(2) Subject to any other provision of this Act no
other person shall perform any of the acts mentioned in sub-section (I) without
the prior authorization of the owner.
23. Provisional protection. For the period
between the filing of the application and the grant of a certificate, the owner
of the certificate shall be entitled to equitable remuneration from any person
who, during the said period, which once the certificate was issued, would fall
within owner’s rights to exclude others under section 22.
24. Term of the certificate. Subject to
section 29, the term of the certificate shall be twenty five years in the case
of trees and vines and twenty years in the case of all other plants from the
date of filing of the application.
25. Exceptions. Nothing contained in this
Act shall prevent,---
(a) any act done privately on a non-commercial
basis;
(b) any act done for scientific research or plant
breeding as an initial source of Variety for the purpose of creating other
varieties provided that the authorization of the breeder of a protected variety
shall be required where the repeated use of such variety as a parental line is
necessary for commercial production of such other newly developed variety;
(c) any act done for the purpose of breeding
other plant varieties and any act referred to in section 20 in respect of such
other plant varieties, except where such other plant varieties have been
essentially derived from the protected plant variety;
(d) a farmer to be entitled to save, use, sow,
re-sow, exchange, share or sell his farm produce provided that the farmer shall
not be entitled to sell seed of a variety protected under this Act on a
commercial basis without complying with the requirements of Seed Act, 1976
(XXIX of 1976), and regulations made therein; and
(e) any exchange of propagating materials among
farmers as may be specified in the regulations.
CHAPTER V
SURRENDER, REVOCATION, RECTIFICATION OR CORRECTION OF
REGISTER
26. Surrender of certificate. The holder of
a certificate under this Act may, at any time by giving notice in the
prescribed manner to the Registrar, surrender his certificate in such manner as
may be prescribed.
27. Revocation of certificate by the
Registrar. At any time within twelve months after the grant of a
certificate, any person interested who did not oppose the grant of the
certificate may make an application to the Registrar for an order revoking the
certificate on any one or more of the grounds upon which the grant of the
certificate could have been opposed:
Provided that when an action for infringement or
proceedings for the revocation, of a certificate is pending in any court, an
application to the Registrar under this section shall not be made except with
the leave of the court.
28. Revocation of certificate by the High
Court. Subject to the provisions of this Act, a certificate may, on
the petition of any person interested or of the Federal Government or on a
counterclaim in a suit for infringement of the certificate, be revoked in part
or in whole by the High Court on any one or more of the grounds upon which
grant of certificate may be refused:---
Provided that a notice of any petition for revocation
of a certificate under this section shall be served on all persons appearing
from the register to be the owner of that certificate or to have interest
therein.
29. Payment of annual fee and forfeiture of
certificate in default thereof.—(1) The Federal Government may prescribe a
fee to be paid annually by every owner of a certificate under this Act subject
to such conditions and procedures as.may be prescribed.
(2) If the owner of the certificate fails to pay the
fee as under sub-section (1), the Registrar may forfeit the certificate in the
manner as may be prescribed.
30. Rectification or correction of
register.—(1) Any person having sufficient interest may, on payment of
such fee as may be prescribed, apply for the rectification of an error or
omission in the Register:---
Provided that an application for rectification may not
be made in respect of a matter affecting the validity of the certificate.
(2) An application for rectification may be made to
the Registrar except that,---
(a) if proceedings concerning the certificate in
question are pending in the High Court, the application shall be made to the
High Court; and
(b) in case the application is made to the
Registrar, he may at any stage of the proceedings refer the application to the
High Court.
(3) 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 rectification of an error or omission
in the Register.
(4) Except where the Registrar or the High Court
directs otherwise, the effect of rectification of the register shall be that
the error or omission in question shall be deemed never to have been made..
31. Alteration of denomination of a protected
variety.—(1) The breeder of a variety protected under this Act may apply in the
prescribed manner to the Registrar to delete any part or to add or alter the
denomination of such variety in any manner not substantially affecting the
identity thereof, and the Registrar may refuse or may grant leave to amend on
such terms and subject to such limitations as he may think fit and subject to
the rules to avoid any conflict with the rights of other breeders of the
varieties protected 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 to do so, and where he does so, if within sixty
days 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.
(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
BENEFIT SHARING
32. Benefit sharing.—(1) On receipt of copy of the
certificate of protection, the Registrar shall publish such contents of the
certificate and invite claims of benefit sharing to the variety protected 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 to such variety in the
prescribed form within such period, and accompanied with such fees, as may be
prescribed:
Provided that such claim shall only be submitted by
any,—
(a) person or group of persons, if such person or
every person constituting such group is a citizen of
(b) firm or governmental or non-governmental
organization, if such firm or cirganization is formed or established in or
outside
(3) On receiving a claim under sub-section (2), the
Registrar shall send a copy of such claim to the breeder of the variety
protected 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 Registrar 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 Registrar 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:---
(a) the extent 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; and
(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 Act shall be deposited by the breeder of such variety in
the manner prescribed. The amount of benefit sharing shall be determined under
this Act on a reference made to the Registrar in the prescribed manner.
CHAPTER VII
COMPULSORY LICENSE
33. Power of Registrar to make order for
compulsory license in certain circumstances.—(1) Subject to sub-section
(2), where,—
(a) the public interest, in particular the
nutrition or health so requires;
(b) the Registrar has determined that the manner
of exploitation, by the owner of the certificate or his licensee, is
anti-competitive;
(c) reasonable requirements of the public for
seeds 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;
(d) the owner of the certificate refuses to grant
a license to a third party on reasonable commercial terms and condition’s; or
the right under the certificate has not been exploited in a manner which
contributes to the promotion, transfer and dissemination of technology; and
(e) the Registrar may after the expiry of three
years from the date of grant of a certificate and after seeking advice of the
Committee, even without the consent of the owner of the certificate decide that
a Government agency, or a third person who makes an application to the
Registrar in the prescribed manner in this behalf, may exploit the rights under
the certificate.
(2) The Registrar shall, before taking any decision
under sub-section (1), give the owner of the certificate and the interested
person an opportunity of being heard.
(3) The exploitation of rights under the certificate
shall be limited to the purpose for which it was authorized, subject to payment
to the said owner of an adequate remuneration thereof, taking into account the
economic value of the authorization, and subject to such terms and conditions
as may be prescribed.
34. Duration of compulsory
license. The Registrar shall determine the duration of the compulsory
licenses granted under this Act and such duration may vary from case to case
keeping in view the gestation periods of the plant variety and other relevant
facts but in any case the term of compulsory license shall not exceed five
years from the date of grant.
35. Revocation of compulsory license. If the
Registrar, on his own motion or on an application made in the prescribed manner
to the Registrar by a person aggrieved of the grant of a compulsoiy license
under this Act, is satisfied that the licensee has violated any of the terms or
conditions of the license or it is not . appropriate to continue such license
further in the public interest, after giving such licensee an opportunity to
file opposition and of being heard, make an order to revoke such license.
36. Modification of compulsory
license. The Registrar may, if he considers it in the public
interest, on his own motion or on application made by the holder of a
compulsory license under this Act, after providing an opportunity of being
heard to the owner of the certificate under this Act, order modification of the
entries in the Register on such terms and conditions as he may thinks fit.
37. Application of Seed Act,
1976. Nothing provided or granted by, or under, this Act shall be
construed as conferring authority for,---
(a) any seed to be sold, imported, exported or
advertised; or
(b) any name, mark or label to be applied in
connection with any seed, contrary to the Seed Act, 1976 (XXIX of 1976) or
regulations made thereunder.
CHAPTER VIII
INFRINGEMENT, OFFENCES AND PENALTIES
38. Suit for infringement etc.—(1) Subject to the
provisions of this Act, any action in violation of the provisions of
sub-section (1) of section 22 shall be deemed to be an-infringement including using a variety
protected under this Act without legal authorization, to produce an essentially
derived variety or Fl hybrid for commercial utilization.
(2) No suit,---
(a) for the infringement of a variety protected
under this Act; or
(b) relating to any right in a variety protected
under this Act; shall be instituted in any court inferior to the Court of
District Judge having jurisdiction to try the suit.
(3) For the purpose of clauses (a) and (b) of .sub-section
(2), “Court of District Judge having jurisdiction” shall mean the Court of
District Judge within the local limit of whose jurisdiction the cause of action
arises.
39. Relief in suits for infringement.—(1)
The relief which a court may grant in any suit for infringement referred
to in section 38 may include an injunction and at the option of the plaintiff,
either damages or a share of the profits.
(2) An order under sub-section (1) may include an
order for,
(a) discovery of documents;
(b) preserving of infringing variety, documents
or other evidence which are related to the subject matter of the suit; or
(c) attachment of such property of the defendant
which the court deems necessary to recover damages, costs or other pecuniary
remedies which may finally be awarded to the plaintiff:
(3) A court of competent jurisdiction, having ruled in
favour of the owner of the certificate, shall decree an appropriate remedy. In
every case, the court may award damages to the owner of the right at least
equal in amount to the losses suffered by the owner or any other relief which
the court may deem appropriate.
40. Time limitation on an infringement suit, notice of
infringement.—(1) No suit for infringement of a certificate shall be brought
after three years following any alleged occurrence of infringement.
(2) Damages will not be assessed against a defendant
for infringement committed before actual or constructive notice is given to the
defendant that the concerned variety is a protected plant variety. Constructive
notice may be given by marking the container of the protected variety, or by
any other appropriately visible indication that the variety is protected.
41. Offences and Penalties. Penalties for
contravention of this Act or rules framed thereunder, shall be prescribed.
CHAPTER IX
MISCELLANEOUS
42. Transitional provision. The plant varieties
already registered and released or commercialized which do not conform to the
criteria of novelty may apply for a certificate within two years of the
commencement of this Act. If the certificate is granted, the term of
certificate will be reduced by the number of years between the time the variety
was released, registered or commercialized and the time the application for a
certificate was submitted.
43. Protection of action taken in good faith. No
suit, prosecution or other legal proceedings shall lie against the Federal
Government, the Ministry, the Department, the Registrar or any other person
acting on behalf of or under instructions from, the Federal Government, the
Ministry, the Department, the Committee or the Registrar directly or 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.
44. Non-resident certificate owners. Each owner
of a certificate not residing in
45. Incentives for the promotion of research and
development.—(1) The Federal Government and each of the Provincial
Governments shall constitute a Research Incentive Board which shall recommend
to the respective Governments, incentives for the promotion of research and
development, including incentives for research scientists and their teams
involved in developing new plant varieties:
Provided that in case of an applicant under
sub-section (4) of section 13, the scientist, breeder or a group of scientists
or breeders and their team involved in the development of a new plant variety
shall be entitled to a minimum of forty percent of the royalty or the profits
gained by the institute through any commercial deal:---
Provided further that the Federal Government or the
Provincial Governments, as the case may be, by notification in the official
Gazette make rules for carrying out the purposes of this section.
(2) The rules related to determination and implementation
of royalty on the protected plant varieties shall be prescribed.
46. Appeal. Any person aggrieved by the decision
of the Registrar or the Court of District Judge may, within sixty days of the
decision, prefer an appeal to High Court having jurisdiction.
47. Determination and collection of fee. The
Federal Government may, by notification in the official Gazette, prescribe a
schedule of fee and charges for services rendered to the applicants and the
public under this Act and any fee or amount collected shall be deposited in the
manner as may be prescribed.
48. Power to make rules. The Federal Government
may, by notification in the official Gazette, make rules for carrying out the
purposes of this Act.
49. Removal of difficulty. If any difficultly
arises in giving effect to the provisions of this Act, the Federal Government
may, by notification 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.
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