Anand and Anand | View firm profile
Neeti Wilson and Kartik Madankar
Introduction
Agriculture remains the backbone of the Indian economy, providing livelihoods to a significant portion of the population and contributing substantially to national economic growth. Plant varieties play a crucial role in ensuring food security, supplying fodder, and supporting numerous agricultural and industrial activities. Advancements in agricultural science have enabled breeders to develop new plant varieties possessing desirable traits such as higher yields, resistance to pests and diseases, improved nutritional content, enhanced adaptability to climatic conditions, and attractive ornamental characteristics. These innovations are the result of years of research, innovation, and substantial investment by the seed industry.
Given the significant resources involved in developing new plant varieties, an effective intellectual property protection framework is essential to encourage continued investment and innovation. Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) permits member countries to protect plant varieties either through patents, an effective sui generis system, or a combination of both. India chose to adopt a sui generis system suited to its socio-economic and agricultural conditions by enacting the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act).
International Recognition of Provisional Protection
The concept of provisional protection is well recognized in international plant variety protection systems. Article 13 of the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) requires member states to provide breeders with provisional protection during the period between the publication of an application and the grant of a breeder’s right. Although member states retain flexibility in determining the nature and scope of such protection, the Convention mandates that breeders should, at a minimum, be entitled to equitable remuneration from persons who perform acts requiring the breeder’s authorization after rights are granted.
The UPOV approach reflects an acknowledgment that the period between filing and grant constitutes a vulnerable phase in the life cycle of plant variety protection. Without provisional protection, third parties may commercially exploit a variety before registration is completed, thereby diminishing the value of the breeder’s eventual rights. While India has consciously adopted a sui generis framework distinct from the UPOV system, Article 13 offers a useful benchmark for understanding the policy rationale underlying provisional protection and highlights the importance of safeguarding breeders’ interests during the pendency of registration proceedings.
The PPV&FR Act seeks to balance the interests of plant breeders and farmers by protecting breeders’ rights while recognizing the traditional role of farmers in conserving, improving, and making available plant genetic resources. Upon registration, a breeder is granted exclusive rights over a registered variety for a period of fifteen years in the case of most crops and eighteen years in the case of trees and vines.
However, an important question arises: what protection is available to a breeder during the period between the filing of a registration application and the grant of registration? This issue assumes significance because the registration process under the PPV&FR Act is often lengthy, involving technical examination and DUS (Distinctiveness, Uniformity and Stability) testing over multiple crop seasons and locations. During this intervening period, breeders may be vulnerable to unauthorized exploitation of their varieties. It is in this context that the concept of provisional protection assumes importance.
Statutory Basis of Provisional Protection under Section 24(5)
Section 24(5) of the PPV&FR Act provides a form of provisional protection to plant breeders. The provision empowers the Registrar to issue appropriate directions to safeguard the breeder’s interests against any abusive acts committed by third parties during the period between the filing of an application and the grant of registration. However, the Act neither defines what constitutes an “abusive act” nor specifies the nature of directions that may be issued by the Registrar. This legislative ambiguity creates uncertainty regarding the scope and effectiveness of protection available to breeders during the pendency of registration proceedings.
Comparison with Provisional Rights under Patent Law
A comparison with the Patents Act, 1970 illustrates the lack of clarity under the PPV&FR Act. Section 11A(7) of the Patents Act provides that from the date of publication of a patent application until the grant of a patent, the applicant enjoys rights similar to those of a patentee, although infringement proceedings can be instituted only after the patent is granted. Upon grant, the patentee may seek damages for unauthorized use occurring from the date of publication of the application.
The patent regime therefore establishes a clear framework regarding the rights available during the pre-grant period and the remedies that may subsequently be claimed. By contrast, Section 24(5) of the PPV&FR Act leaves unanswered several important questions concerning the nature of protected interests, the conduct that constitutes an abusive act, and the remedies available to an aggrieved breeder. The comparison highlights the need for greater legislative clarity regarding provisional protection under the PPV&FR Act.
Growing Relevance of Section 24(5)
Recent years have witnessed a significant increase in plant variety registrations, with 2,017 certificates issued in 2024 and 2,073 certificates issued in 2025. This trend is expected to continue as awareness regarding plant breeders’ rights grows among seed companies and agricultural innovators.
At the same time, the registration process remains inherently time-consuming. Before a certificate of registration can be granted, the applicant’s variety must undergo rigorous DUS testing conducted by the Protection of Plant Varieties and Farmers’ Rights Authority over multiple crop seasons and locations. Only after the Authority is satisfied that the variety fulfils the statutory requirements, the registration is granted.
The delay inherent in this process creates a period during which breeders may face unauthorized use, commercialization, or misappropriation of their varieties. The increasing number of petitions filed under Section 24(5) reflects the practical significance of this concern. It is understood that several such petitions are presently pending before the Authority, and their number is likely to increase as the plant variety protection regime continues to mature.
Defining “Abusive Acts”: The Need for a Principled Interpretation
A significant weakness of Section 24(5) is the absence of a statutory definition of the expression “abusive acts.” The Act neither explains the circumstances in which a breeder’s interests may be considered threatened nor identifies the categories of conduct that justify the exercise of the Registrar’s powers. Consequently, the provision leaves considerable room for uncertainty in its application.
A purposive interpretation of Section 24(5), however, suggests that an abusive act should encompass any unauthorized commercial or regulatory conduct that has the potential to prejudice the breeder’s proprietary interests in a variety pending registration. The rationale underlying provisional protection is to preserve the commercial value of the breeder’s innovation during the period in which the registration application is under examination. Therefore, acts that undermine the breeder’s ability to exclusively exploit the variety after registration should ordinarily fall within the scope of Section 24(5).
Viewed from this perspective, abusive acts may include the commercial production, sale, export, or import of a variety that is the subject matter of a pending application. Similarly, the adoption of an identical or deceptively similar denomination for a competing variety may mislead the market and dilute the distinct identity of the applicant’s variety. Unauthorized use of a pending variety for the development of an Essentially Derived Variety (EDV) may also amount to an abusive act, particularly where such use enables a third party to appropriate the breeder’s innovation before registration is granted.
In addition, conduct by licensees or agents that exceeds or violates the scope of authority granted by the breeder may warrant protection under Section 24(5). Likewise, the submission of false or misleading information concerning a pending variety, whether before the Authority or in the marketplace, may adversely affect the breeder’s commercial interests and undermine the integrity of the registration process.
Although these examples are not exhaustive, they illustrate that the concept of abusive acts should be interpreted in a manner that furthers the legislative objective of protecting breeders against commercial misappropriation during the pendency of registration proceedings.
Nature of Reliefs Available under Section 24(5)
Although Section 24(5) authorizes the Registrar to issue directions for protecting breeders’ interests, it does not specify the nature of such directions. Nevertheless, guidance may be derived from other provisions of the PPV&FR Act.
Section 11 of the Act confers upon the Authority and the Registrar powers analogous to those of a civil court. These powers include receiving evidence, administering oaths, summoning witnesses, compelling the production of documents, and issuing commissions for the examination of witnesses. The Authority and Registrar may also award costs, which are enforceable in the same manner as a decree of a civil court.
Further guidance may be derived from Section 66 of the Act, which prescribes the remedies available in infringement proceedings. Section 66 empowers courts to grant injunctions and, at the option of the breeder, damages or an account of profits. The provision also contemplates ex parte injunctions and interim measures such as preservation of evidence, discovery of documents, and attachment of property to secure damages or costs.
Although Section 66 applies specifically to infringement proceedings involving registered varieties, the principles underlying these remedies may assist in shaping the contours of relief under Section 24(5). A purposive interpretation of the provision would suggest that the Registrar’s powers should be sufficiently broad to prevent irreversible harm to a breeder’s interests during the pendency of a registration application.
Judicial Interpretation of Section 24(5)
The constitutional validity of Section 24(5) has been the subject of considerable judicial scrutiny.
In Prabhat Agri Biotech Ltd. v. Registrar of Plant Varieties & Ors., the Delhi High Court declared Section 24(5) unconstitutional, holding that it conferred unguided and excessively broad powers upon the Registrar in relation to vaguely defined “abusive acts.” According to the Court, the absence of statutory safeguards created a risk of arbitrary exercise of power and rendered the provision vulnerable under Article 14 of the Constitution.
However, the operation of this judgment was subsequently stayed by the Supreme Court in Pioneer Overseas Corporation v. Kaveri Seed Company Limited. Consequently, Section 24(5) continues to remain operative pending final adjudication by the Supreme Court.
The legal position was revisited in UPL Limited v. Registrar & Anr. (2024), where the Delhi High Court examined the effect of the Supreme Court’s stay order. The Court held that Section 24(5) remains fully operative until the Supreme Court finally decides the matter. It further observed that the Registrar’s refusal to entertain a Section 24(5) application on the ground that protection was available only after registration was contrary to the express language of the statute. The Court emphasized that the stay of a judgment declaring a statutory provision unconstitutional does not render the provision inoperative. Accordingly, the Registrar’s order was set aside and the application was restored for consideration on its merits.
The decision in UPL Limited is significant because it reaffirms the continuing availability of provisional protection under the PPV&FR Act and underscores the legislative intent behind Section 24(5), namely, the protection of breeders during the pendency of registration proceedings.
Conclusion and Recommendations
Section 24(5) occupies a unique position within the PPV&FR Act. It represents the legislature’s recognition that breeders require protection not only after registration but also during the often lengthy period in which their applications remain pending before the Authority. However, the provision suffers from two significant deficiencies: first, the absence of a statutory definition of “abusive acts”; and secondly, the lack of clarity regarding the nature and scope of relief that may be granted by the Registrar.
The judicial developments in Prabhat Agri Biotech, Pioneer Overseas, and UPL Limited demonstrate both the importance of Section 24(5) and the difficulties arising from its present drafting. While the provision continues to operate, uncertainty regarding its scope remains a source of litigation and administrative inconsistency.
Given the increasing number of plant variety registrations and the growing commercial significance of proprietary seed technologies, there is a compelling case for legislative or regulatory intervention. The PPV&FR Authority may consider issuing detailed guidelines identifying the categories of conduct that constitute abusive acts and clarifying the range of interim and final reliefs available under Section 24(5). Alternatively, the provision may be amended to expressly define the scope of provisional protection and the powers of the Registrar.
Such reforms would enhance legal certainty, reduce litigation, strengthen confidence in India’s plant variety protection regime, and further the broader objectives of encouraging innovation, investment, and agricultural development. A clearer and more predictable framework for provisional protection would ultimately reinforce the effectiveness of India’s sui generis system for the protection of plant varieties and contribute to the long-term growth of the agricultural sector.
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Cases Referred:
- Prabhat Agri Biotech Ltd v Registrar of Plant Varieties & Ors, WP(C) No 250/2009 (Delhi High Court, 2 December 2016).
- Pioneer Overseas Corporation v Kaveri Seed Company Ltd, SLP (C) No 19195/2017 (Supreme Court of India, 31 July 2017).
- UPL Ltd v Registrar & Ors, CA (COMM IPD-PV) 3/2022 (Delhi High Court, 22 February 2024).