I am pleased to bring to you our next guest post by Geetanjali Visvanathan. Geetanjali Visvanathan, is a practicing attorney in the Delhi High Court with 10 years of experience in the field of civil commercial laws, in particular intellectual property laws. She is currently a Partner at Ira Law, a young venture comprising of a highly experienced team of attorneys. Geetanjali has done her Masters in Competition, Innovation and Information Laws from the New York University, School of Law and has received her B.A. LL.B. from the Army Institute of Law, Mohali.
She specializes in the field of Media and Entertainment laws having worked in the past for record labels, artists, copyright societies and producers. She has been a part of the team handling landmark cases including the first case to deal with the scope of fair dealing of sound recordings and films in the context of television broadcasts including news broadcast, copyrightability of characters, moral rights of authors etc. Apart from copyright, her areas of practice also include Trademark, Plant Variety and Design Law.
In this post Geetanjali analyses a landmark decision passed by the Delhi High Court under The Protection Of Plant Varieties And Farmers’ Rights Act, 2001 (“Act”).
In a GIANT Leap for the Seeds Industry, the Delhi High Court in a judgment delivered yesterday, has for the first time in India, approved DNA testing of plant varieties to determine the issue of infringement and registrability under the Act.
This judgment essentially implies that DNA tests can now be used in India in cases involving misappropriation of plant germplasm- Yes! Theft worth millions is prevalent even in the plant world.
Facts in a Nutshell (No Pun Intended)
The case at hand revolved around registration of two maize varieties under the Act where the Petitioner in an opposition proceeding before the Plant Variety Authority was contending that its variety had been stolen by the Respondent. To prove its point the Petitioner presented DNA evidence establishing 99.4 % to 99.8% similarity between the two maize varieties. Since in Round 1, the Plant Variety Authority completely ignored this evidence and relied only on what is known as the DUS (Distinctiveness, Uniformity and Stability) Tests under the Act to hold that both varieties were distinct and registrable, the Petitioner approached the Delhi High Court in Round 2 challenging the order of the Authority.
DUS Tests under the Act
Before I get into the technicalities, DUS (Distinctiveness, Uniformity and Stability) Tests under the Act are morphological tests based on physical attributes of a plant variety. For eg- the colour of petals of a rose. These are conducted by growing the plants together in a field and noting their physical attributes over one/two seasons and in two different locations.
Findings and Importance of the Judgment
As stated earlier, the judgment gains importance as it brushes aside the prevalent norm of only relying on DUS Tests. The court agreeing with the Petitioner has held that “Special Tests” in the nature of DNA tests can be conducted during contentious proceedings such as Oppositions to determine the rightful owner of a plant variety under the Act.
This finding shatters the stereotypical interpretation given by the Plant Variety Authority in India which till now even when presented with concrete DNA evidence such as in the present one, chose to ignore the evidence on the ground that the Act only permitted Special Tests such as DNA tests when the DUS tests failed. (Rule 29(2) read with Section 19). The Court clearly holds this interpretation to be erroneous.
This is indeed a victory for the plant breeders in India who up till now could not rely on DNA tests to prove infringement or misappropriation of germplasm despite the fact that DNA testing is scientifically more accurate as compared to DUS testing where results can vary on account of change in environmental conditions, soil conditions, season etc.
In simple words, the Court has finally given teeth to what was otherwise considered a toothless Act.
Procedural Clarifications under the Act
The Court in the judgment has further clarified the procedure that ought to be followed by the Plant Variety Authority under the Act while considering an application for registration of a variety. Though the Act was enacted in 2001, this judgment would be considered a first as Protection of Plant Varieties is an unchartered field in India and there are hardly any judicial precedents under the Act.
Procedurally, the DHC has clarified that DUS tests contemplated under Section 19 of the Act have to be conducted before acceptance of an Application for registration of a plant variety and only thereafter can the application be advertised under Section 20 of the Act to invite oppositions.
More importantly, the Court has further clarified that DUS tests conducted under Section 19 of the Act are not binding and final and an objector by way of an opposition under Section 21 of the Act is at liberty to contest the veracity of the said tests. Again, I would emphasise that this is a FIRST under the Act.
Lastly, giving weight to the deeming provision under Section 21(4) of the Act, the court held that in situations such as the present one, where the Applicant does not comply with the statutory period of two months to file its counter statement to the Opposition nor takes any steps to file for extension, its Application would be deemed to have been abandoned. A BOLD and BEFITTING outcome in the facts of the present case.
Read judgement here: