Tuesday, 30 October 2012

Innovations by Small Land Owners - Can their innovations bring them economic prosperity under Indian law?

A. HMT Rice and Dadaji Ramji Khobragade

(This is an updated case study - an earlier version of this was published on Spicy IP here)

Until the early 1980s, Dadji Ramji Khobragade, a farmer owning a small land holding in Nanded village of Chandipur district in Maharashtra, cultivated the locally popular Patel 3 rice variety on his 1.5 acre landholding. The Patel 3 variety was a high yielding, typical rice variety created by Dr. J.P. Patel, a scientist and rice breeder at the Jawaharlal Nehru Krishi Vishwavidyalaya (JNKV) Agriculture University, Jabalpur, India.

In 1983, Khobragade noticed a few unusual looking yellow seeded paddy spikes in his field, where he had cultivated the Patel 3 variety as usual. He collected these seeds, kept them aside, and replanted them season after season till he developed what went on to become the most popular rice variety in his village - the HMT rice variety. The story goes that when Khobragade took his new variety to sell to the local wholesaler, he was asked what the name of the variety is (as it looked completely different from any other variety in the market at the time). As Khobragade had not thought of a name, the variety was initially named ‘Swarna Sona’ (Golden Sona – Sona is a commonly grown rice variety in India). Later, as the variety became more popular, one of the traders named it ‘HMT’ after a popular Indian wrist-watch brand (‘HMT’ brand wrist-watches were widely advertised in the Indian media in the 1980s). Soon, farmers from neighboring villages were also at Khobragade’s doorstep asking for a bag of HMT rice to plant in their own fields. As is customary in Indian villages, Khobragade was proud of the popularity of his rice and was happy to share his seeds with other farmers.

Khobragade and his HMT rice gained popularity rather speedily because HMT was found to give a higher yield than other commercially sold rice varieties; the prosperity of Khobragade’s village is attributed to the HMT rice variety. It also has a better smell and cooking qualities than the parent Patel 3 variety. These qualities, coupled with its exceptionally short and thin grain, helps farmers earn a higher rate per kilogram in the local market.

In 1994, the Sindewahi Rice Station, a part of Dr. Punjabrao Deshmukh Krishi Vidyapith (PKV) University (an state funded agricultural research university in Maharashtra) (herein after, the ‘University’) took five kilograms of the HMT seeds from Khobragade to conduct ‘experiments’ on it. 4 years later, the University released a new variety named PKV HMT, a ‘pure’ and improved form of the HMT variety.

Although these developments received a great deal of press publicity and the actions of the university were questioned both from ethical and legal standpoints, the vice-chancellor of the University was quoted as saying that “[t]he original seed may have come from Khobragade, but now it is entirely the University’s intellectual property (IP).” In the following sections we examine, inter alia, whether under Indian law, the statement of the vice-chancellor is indeed accurate.

B. Plant Variety Registrations (in India) Pertaining to the ‘HMT’ Rice Variety

In February 2009, the University filed an application for PKV HMT under the ‘new variety’ category. The application resulted in the registration of the variety in 2012. The registration is in the name of Dr. Punjabrao Deshmukh Krishi Vidyapeeth, Maharashtra and the variety is disclosed as being a selection from local variety HMT Sona. The Certificate of Registration (CoR) contains the following additional information –

A) Under paragraph (8) of the CoR where the applicant has to disclose the ‘Name and address of contributor, nature and amount of the contribution or the community knowledge used in the development of the plant variety’, the University has stated ‘N/A’ (not applicable).

B) The University also does not consider its PKV HMT variety as being a variety ‘essentially derived’ from HMT and provides ‘N/A’ as the response to the question under paragraph (7) of the CoR, which seeks ‘In case of ‘essentially derived variety’, the details of the ‘initial variety’ from which the ‘essentially derived variety’ is claimed to have been derived.’

C) Although the application was filed under the ‘new variety’ category, the CoR categorizes PKV HMT as an ‘extant variety’. Of particular relevance is the fact that the year 2008 has been declared as the date of commercialization of the PKV HMT variety under paragraph (10) of the CoR. This is surprising because according to the Rice Knowledge Management Portal (RKMP), the PKV HMT variety was released in 1998.

A parallel look at the farmers’ variety applications filed so far reveal that an application was also filed by Khobragade for his HMT rice variety (named Dadaji HMT) (Application No. REG/2008/138, filed on 16 January 2008) more than one year before the application filed by the University. Further, a Farmers’ Variety registration certificate (CoR) was granted to Khobragade on 04 April 2012 (6 months before the Registration Certificate was granted to the University). No plant variety registrations for the HMT rice variety are known to exist in any country other than India.

In the light of the above facts, the following section seeks to determine (i) the provisions under the Indian PPV&FR Act that permit Khobragade to successfully obtain a Plant Variety Protection certificate over his HMT rice variety; and (ii) the manner and extent to which he can expect to enforce his exclusive rights under the Indian law (which, as described above, has already granted him a certificate of registration ) and (iii) whether Khobragade would have managed to obtain a certification under a system that closely follows provisions of UPOV as opposed to the provisions under Indian law. An issue that is closely linked to issue (ii) above, is whether Khobragade has any claim against the University (in the above fact scenario) under Indian law or under any law that adopts a UPOV 1991 type regime.

C. Applying Provision of UPOV 1991 & the PPV & FR Act to the facts of the HMT Controversy

The above and other CoRs are periodically published by the Plant Authority to ‘[invite] claims of benefit sharing under sub-section 1 of section 26 of the Protection of Plant Varieties and Farmers Rights (PPV&FR) Act, 2001 read with rule 40 of the PPV&FR Rules 2003.’ In order to determine whether Khobragade is entitled to any benefits under the PPV&FR Act, several issues must be addressed:

(a) Why was the University’s application not rejected despite its failure to disclose Khobragade’s variety as the starting material for its improved PKV HMT Variety?
(b) Can Khobragade argue that PKV HMT is an essentially derived variety? If yes, can Khobragade claim royalties/share of benefits from the University even though PKV HMT is not registered as an EDV, but as an extant variety?
(c) In what way, if at all, can Khobragade prevent the sale of PKV HMT (in the light of the rights that would accrue to him under section 28 following registration)?
(d) What rights does Khobragade have now that PKV HMT has been registered as an extant variety without any mention of Khobragade’s contributions? Can he still claim a share of the profits resulting from the sale of PKV HMT (benefit sharing)?

Each of these questions is discussed below in the light of the provisions of the PPV&FR Act:

C.1 Researcher’s Rights
At the outset, it is relevant to note that every breeder is free to use a variety created or improved by a farmer or breeder, whether or not it has been registered under the Act, for purposes of ‘experimenting’ and for creating new varieties (section 30 of the PPV&FR Act details these ‘Researchers Rights’ ).

In the present case, it is clear that Khobragade created the initial variety (HMT). However, using the Researcher’s Rights under section 30 of the PPV&FR Act, the University was free to conduct experiments and to use the HMT variety as an initial source of variety for the purpose of creating other varieties.

Once such other varieties are created, the breeder of such other varieties is free to apply for registration of these varieties under the PPV&FR Act. The University, therefore, was on the right side of the law when it applied for protection for its PKV HMT variety

However, the Proviso to section 30 lays down an exception to the researcher’s rights in the following words:
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 the commercial production of such other newly developed variety.

The PPV&FR Act does not define the term ‘Parental Line.’ However, the PPV&FR Regulations, 2006 define the term ‘Parental Line’ under Paragraph 2(f) to mean the “inbred line of immediate parents or ‘A’ line, ‘B’ line and ‘R’ line of hybrids.” PKV HMT has been classified as a typical variety and not as a hybrid. Therefore, in order for it to fall within the scope of the Proviso to section 30, the HMT variety must be the inbred line of immediate parents of PKV HMT and its repeated use as a parental line must be necessary for the production of PKV HMT.

This, however, is never the case in typical varieties created by purifications resulting from selections from generations of a variety. As per the CoR of PKV HMT, it is not an inbred parent, but a selection from the local HMT variety. In fact, it is noteworthy that HMT itself was created following selections made from the progeny of the Patel 3 variety. Once Khobragade selected HMT seeds from Patel 3, he no more needed to continue planting Patel 3 in order to get HMT seeds. He only needed to keep growing and multiplying the selected HMT seeds.

It appears from the above that the Proviso to section 30 only comes into play if a breeder uses parental lines to generate hybrids or if a breeder creates an inbred parent line by repeatedly selfing a variety that has desirable characteristics. Once again, therefore, it seems that the University did not violate any law under the PPV&FR Act by applying for registration of its PKV HMT variety. Nor was it required to obtain authorization from Khobragade under the Proviso to section 30 before applying for such registration.