The earlier version of this post had some missing paragraphs due to formatting issues with blogger and hence I'm reposting this same post with the necessary corrections.
Mrinalini Kochupillai, who has previously guest blogged for us over here and here, with regard to the Plant Varieties Act, has sent us this expose on how a University in Maharashtra appears to be misappropriating the rights to a certain variety of rice which was developed by an independent farmer. Like the TKDL story, the following post by Mrinalini highlights the need for India as a country to focus on the 'enemy' within rather than solely whipping up nationalist sentiments to target foreign companies.
Mrinalini has also mentioned that she would like to acknowledge the excellent research assistance of Ms. Surabhi Singh, IV Yr. B.A. LL.B (Hons.) student at the National Law Institute University, Bhopal.
"HMT: Time to share benefits with our farmers?"
by Mrinalini Kochupillai
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| Image of Dadaji Ramji Khobragade from here |
In 1983, Dadaji Ramji Khobragade, a farmer owning a small land holding in Nanded village of Chandipur district in Maharashtra, noticed a few unusual looking rice seeds in his paddy field. 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. In 1994, the Sindewahi Rice Station, a part of Dr. Punjabrao Deshmukh Krishi Vidyapith University, Maharashtra (herein after, the University) took five kgs 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. All these developments were extensively reported in the press as well as by the National Innovation Foundation - see here and here. According to another news report however, 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).”
It appears that the Vice-chancellor was dead serious in making the alleged statement – In February 2009, the University filed an application for PKV HMT under the “new variety” category. The latest Plant Variety Journal (October 2012) (PVJ) advertises the grant of Certificate of Registration (CoR) number 106 of 2012 for Rice variety PKV HMT. 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. Several other interesting pieces of information can be gathered from the one page CoR – 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." This is surprising given the news reports and the information on the National Innovation Foundation’s website which clearly identify Khobragade as being the developer of the HMT variety and PKV HMT as being an improved version of HMT.
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 it 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 in that all news reports till date suggest that the PKV HMT was developed and available for purchase by 1998. Surely it didn’t take 10 years to commercialize following development? Even according to the Rice Knowledge Management Portal here, the PKV HMT variety was released in 1998.
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." A closer look at these and other related provisions is therefore necessary to determine whether Khobragade has any rights at all to claim benefits under India’s celebrated PPV&FR Act:
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, unless such new variety is an essentially derived variety (section 30 of the PPV&FR Act details these “Researchers Rights”).
Notwithstanding the Researchers’ Rights, the PPV&FR Act permits farmers who contribute germplasm, which leads to the development of varieties registrable under the Act, to gain economic benefit in 2 different ways –
(1) As per section 39(1)(i) of the PPV&FR Act, “a farmer who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act.” In other words, if the farmer, like a breeder, creates a new variety, she would be entitled to all the rights guaranteed under section 28 provided her variety is registered. Registration of a farmers’ variety is subject to it meeting the Distinctiveness, Utility and Stability (DUS) requirements under section 14 of the Act. If a farmer develops a new variety and does not obtain protection for it, she would have no claim under section 28 of the PPV&FR Act.
(2) Under section 39(1)(iii), if a farmer is “engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation”, she is entitled to “recognition and reward from the Gene Fund”, provided, the material so selected and preserved has been used for the creation of varieties registerable under the Act.
In order for Khobragade to receive any benefits under the Act, he has to prove that his variety HMT falls under either (1) or (2) above.
Starting with (1), a look at the farmers’ variety applications filed so far reveal that an application has indeed been filed for a rice variety named HMT (Application No. REG/2008/138, filed on 16 January 2008). This raises several important questions:
(a) Why is it that the application for HMT that was filed more than 1 year before the application for PKV HMT has so far not even been examined, while the latter application has already been registered! (I pose this question to experts involved with DUS and NDUS tests for PVP applications)
(b) Presuming that Khobragade is the applicant, what rights does he have pending grant or rejection of his application vis-à-vis the registration of PKV HMT. (In the Plant Variety Journals reviewed so far, neither the name of the applicant nor the passport data of the HMT variety appears to have been published. However, one can presume on the basis of the press publicity that HMT and Khobragade have received, that the application was filed by him or on his behalf.)
(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) pending the registration of his variety? Can he argue that PKV HMT is an essentially derived variety? From the definition of “essentially derived variety” under section 2(i) of the Act, it appears possible to argue (if concrete scientific facts exist in support of it as per the requirements of section 2(i)) that PKV HMT is essentially derived from HMT. However, the legal question here is – does the “initial variety” referred to in section 2(i) have to be a registered variety? If yes (and most likely, in the light of common law principles, absent exclusive rights conferred by statute, the initial variety does have to be a registered variety to claim royalties), can Khobragade claim royalties/share of benefits pending grant and what will happen to the claim if his application is eventually denied?
Going on to (2) above: In an attempt to avoid the uncertainties resulting from a pending application, perhaps Khobragade can simply claim a share of the benefits as being a contributor of the germplasm that lead to the development of PKV HMT under section 39(1)(iii) read with section 40(1) and 26(2) of the PPV&FR Act.
Section 26 of the PPV&FR Act details the procedure to be followed by the Plant Authority to invite and process claims for benefit sharing received following the publication of the CoR by the Authority. Such claims have to be made within 6 months of the publication of the CoR under section 26 (2) of the PPV&FR Act read with Rule 41 of the PPV&FR Rules, 2003.
Just one month before the CoR for PKV HMT was published, the Plant Authority published the Protection of Plant Varieties and Farmers’ Rights (Recognition and Reward from the Gene Fund) Rules, 2012 in the September 2012 issueof the PVJ. These rules detail the mechanism by which farmers engaged in conservation of genetic resources of land races and wild relatives, whose plant genetic resources have been used to develop varieties that are registerable under the PPV&FR Act, can claim an award from the Gene Fund. All procedures and methods to claim a share of benefits therefore appear to be in place. However, one needs to determine whether Khobragade is likely to succeed if he were to make a claim for benefit sharing under sections 39(1)(iii) and 40(1) of the Act.
Section 39(1)(iii) provides:
(iii) a farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund:
Provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act.
Following a strict literal interpretation of the text of section 39(1)(iii), one can argue that in order for a farmer to benefit from the above provision, she must be (a) “engaged in the conservation (and improvement) of genetic resources of land races and wild relatives”, and (b) the conservation efforts must involve “economic plants.”
According to news reports, Khobragade “selected and bred HMT from the conventional Patel 3 variety.” ‘Patel 3’ is not a land race or a wild relative, but a variety developed by Dr. J. P. Patel of Jawaharlal Nehru Krishi Vishwavidyalaya Agricultural University (Jabalpur). Therefore, unless Khobragade can establish that he is engaged in cultivation of not just formally developed varieties, but also land races and wild relatives, under a strict literal interpretation of section 39(1)(iii), he may not be entitled to a reward from the Gene Fund.
Proceeding to section 40(1) of the Act, we notice that a similar problem might arise there as well. Under section 40(1), a breeder or any person making an application for registration of any variety under the Act is required to “disclose in the application, information regarding the use of genetic material conserved by any tribal or rural families in the breeding or development of such variety”. Given that Khobragade did not conservethe HMT variety by continuous cultivation of a land race or wild relative, but developed it by careful selections from a popular public sector variety, it can be argued that his contribution need not be disclosed under section 40(1).
Imagine a scenario where the above provisions have to be interpreted by a court of law. Would the court interpret sections 39 and 40 in favor of Khobragade? What if his farmers’ variety application for HMT is found to not meet the marginally diluted but not-so-significantly-different DUS standards prescribed for examining farmers’ varieties under Regulation 5(6) and (7) of the PPV&FR (Criteria for Distinctiveness, Uniformity and Stability for Registration) Regulations, 2009? Would the court’s findings then be different vis-à-vis benefit sharing from the Gene Fund?
If the court were to find, (say in the light of the overall object and purpose of the Act), that Khobragade’s contribution does fall within the scope of section 40(1), would the registration for PKV HMT be cancelled. It is noteworthy that section 40(2) only talks about rejection of applications, not cancellation of registrations. (Readers comments welcome on the section under which the registration can be cancelled, if at all.)
However, a rejection or cancellation of the application/registration of PKV HMT would not benefit Khobragade (at least not financially). More constructive would be to amend the CoR and disclose Khobragade’s name as the contributor and provide him a share of the benefits accruing from the sales of PKV HMT (which, according to new reports cited above, is a huge commercial success).
According to other news reports here, private sector seed companies are also commercializing the HMT variety. Once the PKV HMT variety is registered, the University can claim royalties from these seed companies under Section 28 of the PPV&FR Act. If the university is indeed successful in receiving royalties, failure to grant Khobragade a share there from would contradict the very objective of enacting a sui generis plant variety protection system that seeks to benefit not just breeders, but also farmers.
Given that Khobragade is well known to be the original developer of the HMT variety (thanks to press publicity including by the Forbes magazine, and awards given by the local village panchayat), would he not be entitled to claim a share of profits under any rules of common law or equity? If so, from which year onwards? Can he claim benefits retrospectively? These questions require careful consideration if farmers such as Khobragade are to obtain any financial benefits under the Act within this lifetime!
Several other registered varieties are selections or “purifications” from local landraces. For example, Registration number 77 of 2012 is for a variety of Sorghum named “RSLG-262 (Maulee)” and its parentage is mentioned as “From local landrace RSLG-262.” Once again, no disclosure has been made of the contributor of the variety or of the community knowledge associated with the development of this variety. The registration is in the name of Mahatma Phule Krishi Vidyapeeth, another agricultural university in Maharashtra and the commericialization date as stated is 2007.
For the sake of all developing countries that look towards India's PPV&FR Act as a model law that can potentially benefit not just private and public sector breeders but also farmers, I really hope that the case of HMT rice becomes the first major success story for farmer innovations and resulting economic benefits to the rural poor. Or are there catches and loopholes in the legislation that will prevent this? All comments and clarification welcome while I continue to dig into the black letter of the law!