Nuziveedu v. Plant Varieties Authority: Reaping the Fruits of Pioneer’s Seeds

Nuziveedu v. Plant Varieties Authority: Reaping the Fruits of Pioneer’s Seeds

Time Stamp: January 15, 2024 12:59 AM
Source Node: 3064213

Recently, the Delhi High Court clarified that the distinctness, uniformity and stability (DUS) testing is a must before a plant variety registration application can be advertised by the Plant Varieties and Farmers’ Rights Authority. SpicyIP Intern Veda Chawla discusses this order. Vedika is a third-year B.A.LL.B. (Hons.) student at National Law University, Delhi. Her previous posts can be accessed here.

Image from here

Nuziveedu v. Plant Varieties Authority: Reaping the Fruits of Pioneer’s Seeds

By Vedika Chawla

In an artfully written judgement, The Delhi High Court on 30 November 2023 ruled that distinctness, uniformity and stability (DUS) testing must necessarily precede the advertising of an application for registration of a plant variety under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (“the PPV Act”). But what is DUS testing? It is a procedure through which the plant variety is grown across two separate but different seasons and at two different locations in order to test it for a detailed list of characteristics, such as seed colour, rate of flowering, etc. Detailed guidelines on how DUS testing is performed on different plant varieties may be found here. 

In the present case, Nuziveedu Seeds Pvt. Ltd v. the Protection of Plant Varieties and Farmer Rights Authority, multiple applications for registration of plant varieties had been filed, including by the Maharashtra Hybrid Seeds Company Pvt. Ltd. (“Mahyco”) and Sungro Seeds Research Ltd. (“Sungro”), which were sent for DUS testing but also advertised before the testing results came in. Subsequently, writ petitions were filed against the Plant Varieties and Farmers’ Rights Authority for failing to follow the statute. The Court disposed of the five writ petitions and reiterated the principle that where a statute prescribes something to be done in a certain manner, it must necessarily be done in that manner and none other. (For a related discussion on the PPV Act and its arbitrariness, read the three-part post by Adarsh Ramanujan here, here and here.)

Relevant Provisions from the Statute 

For a general background, Section 15 of the PPV Act delineates the requirements for a registrable variety, in accordance with which an applicant may make an application for registering a novel or extant variety. Once an application is made, under Section 19, the applicant is also required to provide sufficient quantities of the seed for testing by the Registrar so that their conformity with standards as specified under regulations can be checked. The Protection of Plant Varieties and Farmers’ Rights Regulations, 2006 (“2006 Regulations”) formulated under the Act, in Regulation 11, provide that the standards for testing under the Act shall be distinctness, uniformity and stability (explained above). Under Section 20, the Registrar may, after conducting such inquiry with respect to the particulars contained in such application as he deems fit, accept the application absolutely or after amendments, and thereafter advertise the application so accepted to call for objections under Section 21.

The primary question in the present case was this: Does the Section 20-21 procedure necessarily require the testing under Section 19 to be completed, or can the two happen simultaneously? The latter is what happened in the facts of the case, as four of the nine applications, with respect to which the Court passed orders, were advertised while the DUS testing results had not been received. The confusion is amplified in light of the Public Notice of 1 March, 2012, which mandated that henceforth, all applications must be subject to DUS testing before acceptance. The present applications, however, were filed before 2012.

Can Advertisement and DUS Testing Take Place Simultaneously? 

The provisions detailed above are perhaps an excellent example of legalese that has the potential of allowing common sense to get lost in it. When read plainly, as the Court also observed, Sections 20 and 21 place no requirement on the Registrar to conduct any testing. While Section 19 provides that testing is to be conducted, there is nothing that clearly prevents the Registrar from accepting an application before the DUS test reports have been received – that’s where the Court steps in to explain.

Lauding the wisdom of the Court in Pioneer Overseas Corporation v. Chairperson Protection of Plant Varieties Rights, Hari Shankar, J., highlighted that the decision in that case “concludes the controversy.” In Pioneer Overseas also applications filed before 2012 were advertised prior to the receipt of DUS testing reports. the Court clarified that the processes of DUS testing and advertising could not be conducted simultaneously and interpreted that Section 20 places an onus on the Registrar to conduct ‘such inquiry as he deems fit’ before proceeding to accept and advertise an application. In the proper discharge of this duty, the Court opined, the Registrar would necessarily have to wait for the DUS testing reports, as they constitute an important element of the requirements for registration of new varieties. As explained above, the Regulations provide that the testing should fulfill the criteria of distinctness, uniformity and stability. Recognizing this, the court held that the DUS testing, as provided for under the 2006 Regulations, must essentially be considered an element of the ‘inquiry’ of the Registrar before accepting and advertising the particulars of an application. The Court also noted that where the Registrar, as part of the inquiry, otherwise identifies a sufficiently major issue with the application, s/he is not bound to wait for the DUS testing before rejecting the application. However, where the Registrar has no other reasons to reject the application, s/he must wait for the DUS results and act accordingly. Simply put, a positive DUS testing report is a necessary, but not a sufficient condition for acceptance of the application by the Registrar. Through a brief discussion about the purpose of the Act – protection of farmers’ interests – the Court also highlighted that the purpose of advertising an application is to make available all details about the plant variety so applied to be registered, allowing farmers and other stakeholders to make objections accordingly. If an application is advertised before DUS testing reports are received, the purpose is defeated, which certainly may not be permitted under the scheme of the Act.

Referring to excerpts from Pioneer that form a significant part of the judgement, Hari Shankar, J., noted: “So pellucid, indeed, is the enunciation of the legal position in the above passages, that any attempt at paraphrasing would do injustice.” It is, indeed, only in good sense that this be the understanding of the provisions in order to further the underlying purpose of the Act, otherwise ridden with many complications (discussed further in a series of prior posts, starting here).

Time Stamp:

More from Spicy IP