Petitioners challenged an order holding that parent lines of hybrid seeds could not be registered as new varieties because the hybrid sales destroyed novelty. The court held that selling hybrid seeds amounts to disposal of parent material, negating novelty, and dismissed the petitions.
Petitions dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.01.2015
versus
UNION OF INDIA AND ANR ..... Respondents
Advocates who appeared in this case: For the Petitioners :Mr R. Parthasarthy and Mr Anil Dutt and Mr Sudarshan S. Shekhawat for petitioner in all matters. For the Respondents :Mr Saqib for R-1/UOI in W.P.(C) 4330/2012. Mr Anil Soni, CGSC with Ms Saakshi
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Agarwal for R-1/UOI in W.P.(C) 4365/2012 & W.P.(C) 4366/2012.
Mr Amit Mahajan CGSC with Mr Nitya Sharma for R-1/UOI in W.P.(C) 6199/2012. Mr Vivek Goyal, CGSC for R-1/UOI in W.P.(C) 7853/2012.
Mr Ram Niwas Buri for R-2 in all matters. Mr Jayant Bhushan, Sr. Advocate with Mr Abhishek Saket, Mr Amarjeet Kumar and Mr Manish Madhukar.
CORAM:-
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
Submissions
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characteristics from the parent lines and cannot be considered as propagating or harvested material of the parental line varieties. It was contended that the propagating/harvested material of a variety would mean any part of a plant or seed, which is capable of regeneration into a plant having same characteristics as the original plant. Since regeneration of hybrid seed would not result in the parental lines but the hybrid plant variety that is distinct from the parent line varieties, the hybrid seeds obtained from crossing of parent lines could not be said to be propagating or harvested material of the parental lines.
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Reasoning and conclusion
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an effective sui generis system or by any combination thereof. Paragraph 3 of Article 27 is quoted below:-
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“15. Registerable varieties.— (1) A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.
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(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.
(3) For the purposes of sub-sections (1) and (2) as the case may be, a new variety shall be deemed to be—
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 affect the criteria of novelty for such variety;
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Explanation.—For the removal of doubts, it is hereby declared that the filing of an application for the granting of a breeder’s right 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 right or to the entry of such variety in such official register, as the case may be;
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variety in India earlier than one year or in case it is disposed of outside India, earlier than four years from the date of application.
“(za) “variety” means a plant grouping except micro organism within a single botanical taxon of the lowest known rank, which can be—
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and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety;”
“(j) “extant variety” means a variety available in India which is—
(iv) any other variety which is in public domain;”
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claiming that the parent lines conform to the criteria of novelty even if the seeds of the hybrid variety are commercially sold by them.
“(r) “propagating material” means any plant or its component or part thereof including an intended seed or seed which is capable of, or suitable for, regeneration into a plant;”
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regeneration into a plant. The use of the article ‘a’ is material. The word “regeneration” as used in the context would mean to germinate or to grow into a plant. Thus, as long as a seed of a variety is capable of or suitable to germinate into a plant, it would fall within the definition of “propagating material”. The Registrar has also come to the conclusion that since a hybrid seed is capable of regeneration into a plant it would fall within the meaning of the expression “propagating material”. And, I do not find any infirmity with this view.
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novel if harvested material of a variety has not been sold, or otherwise disposed of prior to the specified period. It would, obviously, follow that the plant would cease to conform to the novelty criteria as required for being registered as a new variety, if the propagating material/harvested material of the variety was sold or otherwise disposed of for the purposes of exploitation of such variety prior to the specified period. Although, the word ‘deemed’ is used in the opening sentence of Section 15(3) of the Act, the same cannot be read to mean that even if a plant variety does not conform to the conditions of clause (a) of Section 15(3) of the Act it could, nonetheless, be considered as novel.
29. In St. Aubyn v. Attorney-General: (1951) 2 All ER 473 Lord Radcliffe had held as under:
“The word ‘deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.”
The Supreme Court in Consolidated Coffee Limited ( supra ) had quoted the above passage with approval and observed as under:
“A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision”
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The word “deemed” in the opening sentence of Section 15(3) of the Act must be read in the context of the legislative intent; a plant variety, the propagating material or harvested material of which is sold or otherwise disposed of within the specified period would be novel but would be precluded from being claimed as novel if sold/otherwise disposed of prior to the specified period.
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Protection of New Varieties of Plants (UPOV). UPOV was established by an International Convention for the protection of new varieties of plants, which was adopted on 02.12.1961 by a diplomatic conference held in Paris. The UPOV Convention came into force on 10.08.1968 having been ratified by the United Kingdom, Netherlands and Germany. 72 countries had joined UPOV as members as on 10.06.2014. Article 6(1) of the 1991 Act of the UPOV Convention contains words which are similar to Section 15(3) of the Act and reads as under:-
“(1) [Criteria] The variety shall be deemed to be new if, at the date of filing of the application for a breeder’s right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety
(i) in the territory of the Contracting Party in which the application has been filed earlier than one year before that date and
(ii) in a territory other than that of the Contracting Party in which the application has been filed earlier than four years or, in the case of trees or of vines, earlier than six years before the said date.”
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in the context of Article 6(1) of the 1991 Act and the Administrative and Legal Committee reached the following conclusion:-
“The Chairman concluded that, as expressed by several member States, the basic view on this issue seemed to be that the novelty of the inbred lines was lost by the exploitation of the hybrid variety. He also stated, however, that note should be taken of the different positions expressed in the session. He considered that the Committee had exhausted its discussions and could not go further at this stage.”
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agreement and, therefore, was obliged to protect the intellectual property rights in certain plant varieties. The protection as envisaged under the Act is to provide certain exclusive rights for a specified period of time. By virtue of Section 24(6) of the Act, the registration certificate issued in respect of a plant variety could be extended for a period up to 18 years from the date of registration in case of trees and vines and 15 years from the date of registration in other cases. In the case of extant varieties the validity of the registration certificate can be extended upto 15 years from the notification of that variety under Section 5 of the Seeds Act, 1966. In other words, the Parliament in its Legislative wisdom considered that providing exclusivity as specified under Section 24(6) of the Act was sufficient protection to the plant breeders. If the provisions of Section 15(3) of the Act are read in a manner as suggested by the petitioners, the effect would be to extend that period of protection many times over. In the first instance, a breeder would get protection in respect of the hybrid variety and assuming that there are two parent lines, the breeder could just before the expiry of the Registration Certificate in respect of a hybrid variety, register one of the parent variety and thus, extend its period of exclusivity for a further period of 15/18 years because protection of even one parent line would practically ensure exclusive rights in relation to the hybrid variety. In the same manner, before expiry of the registration period of that parent line, the breeder could register the other parent line as a new variety. In this manner a breeder could extend the protection for a period up to maximum 45/54 years instead of 15/18 years as contemplated under the Act. Clearly, this is not the legislative intent of the Parliament.
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“In his Delegation’s opinion, if an inbred was being kept secret and only the harvested material from that inbred was made available in a form of a hybrid, then it would seem rather unfair that after a number of years of exploitation, when there was a danger that that inbred may become known, the breeder should go to a plant variety protection office and obtain a further twenty or more years of protection. The protection of plant varieties should be more even-handed and, therefore, there should be no possibility of obtaining additional protection for certain varieties that were not obtainable on a routine basis. As a consequence, his Delegation had great difficulties with the proposal of the Delegation of Germany.”
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Registrar being an expert in the matters should not be interfered with. In my view, the said decisions are wholly inapplicable to the facts of the present case, as they affirm the proposition that the Courts would not normally interfere in the matters affecting policy, which are within the discretion of the relevant authority. The present cases relate to interpretation of a statute and not of any discretionary policy.
VIBHU BAKHRU, J JANUARY 09, 2015 RK
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3 issues framed by the court
Whether parent lines of extant hybrid varieties can be considered as novel plant varieties for registration under the Protection of Plant Varieties and Farmers' Rights Act, 2001 if the hybrid seeds ar
Whether commercial sale of hybrid seeds constitutes disposal of propagating or harvested material of parent lines, thereby destroying their novelty.
Whether judicial review can interfere with the Registrar's order dismissing the petitions on statutory interpretation grounds.
Colour shows how this judgement treated each authority
Consolidated Coffee Ltd. and Anr. v. Coffee Board, BangaloreReferred¶31
(1980) 3 SCC 358 · Who else cites this
Federation of Railway Officers Association and Ors. v. Union of IndiaReferred¶34
(2003) 4 SCC 289 · Who else cites this
Tata Iron & Steel Co. Ltd. v. Union of India and Anr.Referred¶34
(1996) 9 SCC 709 · Who else cites this
Akhil Bharat Goseva Sangh v. State of A.P. & OthersReferred¶34
(2006) 4 SCC 162 · Who else cites this
4 provisions across 2 enactments
Maharashtra Hybrid Seed Co.
Sungro Seeds Ltd
DCM Shriram Consolidated Ltd.
M/s Bayer Bioscience Pvt Ltd
Monsanto Holdings Pvt Ltd
Union of India
Vibhu Bakhu
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
