BP Singh

Intellectual J:roperty Rights,' Protection of Plant Varieties 237the proposed amendments provide an indication of what is tocome. Any country can choose to opt for provisions of the 1978Convention provided it becomes a member of the DPaV by31st December, 1995.Positive points of the 1978 Convention included exemptionsfor use of seeds of protected varieties by farmers (including rightto sell seeds though not on commercial scale) and researchers.These exemptions are proposed to be modiiied by the 1991Convention which has sought to extend Breeder's rights to coveruse of harvested plant part. Whereas, the period of varietyprotection was 15 years (18 years in case of grapevines and trees)under 1978 Convention it is sought to be extended to 20 years (25years in case of grapevines and trees) by the 1991 Convention.Burden of proof of 'not~guilty' will also be on the accused. Anothernoteworthy deviation from the 1978 Convention is a new conceptof an 1/ essentially derived variety". This provision is likely to haveimplication in the context of biotechnology. Consider a case wherea biotechnologist inserts a new gene into a variety protected underPlant Breeder's Rights. Under this new concept, a holder of PlantBreeder's Rights protection can claim corresponding rights over avariety that differs only slightly from the protected variety.Another noteworthy difference between provisions of thetwo conventions pertains to the number of species required to beprotected by member countrieS'. Whereas, the 1978 Conventionrequires protection to cover 24 plant species over a period of eightyears, the 1991 Convention demands protection to cover the entireplant kingdom.The USA sceneBreeder's rights were first granted in USA with the passageof the Plant Patent Act (PPA) of 1930 that covers asexuallypropagated new varieties. Prior to this time, common notion wasthat plants and other living organisms were not eligible for patentprotection because all living organisms were believed to beproducts of nature. The new Act provided that 'Whoever inventsor discovers and asexually reproduces any distinct and new varietyof plant, including cultivated species, mutants, hybrids, and newlyfound seedlings, other than a tuber propagated plant or a plantfound in an unCUltivated state, may obtain a patent thereof, subjectto the conditions and requirements of this title'. The rationale for