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Compulsory License in Indian Plant Variety Protection Legislation


A compulsory license (CL) is an involuntary contract between a willing buyer and an unwilling seller imposed and enforced by the state. It is usually practiced in patent, copyright and other exclusive rights. In India compulsory license provision is enshrined in Plant Variety Protection & Farmer Right Act, 2001. The provision iterates that the Authority may give order after providing opportunity of hearing to the both parties (holder of Plant Variety Right & Licensee) to use the right’s of owner. Usually, the holder does receive some royalties, either set by law or determined through some form of arbitration.
We may now discuss some of the point related to CL in PPV&FR Act, 2001 & Rules 2003, as under:
Who can file application for grant of CL & When to file?
Any person interested, at any time, after the expiry of three years (same as in Indonesia & Thailand) from the date of issue of a certificate of registration of a variety, may make application to Authority alleging that:
1. The reasonable requirements of the public for seeds or other propagating material of the variety have not been satisfied
OR
2. The seed or other propagating material of the variety is not available to the public at a reasonable price. The above allegation should be produced with evidences.
Particulars of Application for Compulsory Licence.
1. Statement of the nature of the applicant's interest.
2. Particulars of variety denomination, generic and specific name of the variety.
3. Grounds for issue of compulsory licence along with supporting documents.
4. Particulars of holder of variety.
5. Written evidence that the person made all measure for voluntary licence or the PVP Right holder has put forth unreasonable term for granting the licence.

Procedure involved in Compulsory licence:
1. Any person makes application for CL to the Authority in FormPV-28 (Application for grant of Compulsory licence) with prescribed fees & the supportive documents or evidence of allegations.
2. The Authority, after consultation with Central Government, and if satisfied after giving an opportunity to the breeder of such variety, to file opposition.
3. A notice must be sent by Authority to the breeder or assignee of the said variety or planting material.
4. Breeder or assignee or registered agent of the variety / planting material has to file his opposition within one month from the date of receipt notice of opposition.
5. Breeder or assignee of the variety may file From PV-29 (Notice of opposition to an application for Compulsory licence) along with prescribed fees and documentary proof to substantiate the ground of opposition.
6. In determining ,whether the reasonable requirements of the public for seeds of a variety or its propagating material has been met or not , the Authority shall take into account-(a) the nature of the variety, (b) The time which has elapsed since the grant of the certificate of registration of the variety, (c) Price of the seed of the variety, (d) The measures taken by the breeder or any registered licensee of the variety to meet the requirement of the public; and (e) The capacity, ability and technical competence of the applicant to produce and market the variety to meet the requirement of the public.
7. Special Circumstances: If the breeder of a variety registered under this Act in respect of which any application has been pending before the Authority for compulsory licensing then he can makes a written request to the Authority on the ground that due to any reasonable factor, such breeder has been unable to produce seed or other propagating material of the variety on a commercial scale to an adequate extent till the date of making such request, the Authority may on being satisfied that the said ground is reasonable, adjourn the hearing of such application for such period not exceeding twelve months in aggregate as it may consider sufficient for optimum production of the seed or propagating material of such variety or essentially derived variety, as the case may be, by such breeder.
8. Hearing opportunity: Authority provide an opportunity of hearing to both parties, the authority may order basis of merit of case has been made. Authority may order for fixation of royalty & other remunerations as it deemed fit.
9. Duration of compulsory licence: It may vary from case to case keeping in view the gestation periods and other relevant factors but in any case shall not exceed to the total remaining period of the protection of that variety.
How to settle terms and conditions of licence?
The Authority, determining the terms and conditions of a compulsory licence endeavor to secure-(i) reasonable compensation to the breeder of the variety (ii) CL of the variety possesses the adequate means to provide to the farmers, and (iii) The seeds or its other propagating material of such variety timely and at reasonable market price.
Note: No compulsory licence will be granted by the Authority to authorise the licensee to import the variety relating to such licence from abroad where such import would constitute an infringement of the rights of the breeder of such variety.
Revocation of Compulsory Licence
(1) An aggrieved person may make application in the prescribed form PV-30 for revocation of CL, if it is satisfied that a compulsory licensee registered has violated any terms or conditions of his licence or it is not appropriate to continue further such licence in public interest, it may after giving such licensee an opportunity to file opposition and of being heard make order to revoke such licence.
(2) When a licence is revoked by an order of the Authority, the Authority shall send a copy of such order to the Registrar to rectify the entry or correct the register relating to such revocation and the Registrar shall rectify the entry or correct the register accordingly.
So, if a CL can be granted on the basis of certain grounds then it can be revoked based on not fulfilling the expectation of those certain ground.
The Indian PVP law has been enforced and registrations have also been granted, we hope that the provision is able to maintain a right balance between creation of monopoly rights and food security in the country, after all this is the sole motive to include such a provision in the Act and truly speaking, this is the most needed provision in a developing country like India, to safeguard our seed industry and farmers’ from competitive abuse of rights.

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