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2019 Supreme(Del) 2594
IN THE HIGH COURT OF DELHI
Vibhu Bakhru, J.
PIONEER OVERSEAS CORPORATION — Appellant
Vs.
CHAIRPERSON, PROTECTION OF PLANT VARIETIES & FARMERS RIGHTS AND OTHERS — Respondents
W.P. (C) Nos. 6470 of 2013, 6208 of 2014, C.M. No. 14085 of 2013, 15019 of 2014
Decided On : 01-07-2019
Advocate Appeared:
For the Petitioners: Praveen Anand, Archana Shankar, Geetanjali Visvanathan, Neeti Nelson, Asavani Jain, Priyanks Dubey.
For the Respondents: Kirtiman Singh, Prateek Dhanda, Waize Ali Noor, Parth Semwal, Shruti Dutt, Jayant Bhushan, Ahishek Saket, Manish Madhukar, Shabana Farah, Rahul Duney, Ketan Paul, Tushar Bhushan, Chitral, Pranav.
The Court held that the Registrar erred in rejecting the petitioner's opposition solely on the ground that the respondent's variety had qualified the DUS criteria. The Court also held that the Registrar erred in rejecting the petitioner's application for conducting a special test.
Headnote:
The Court held that the Registrar erred in rejecting the petitioner's opposition solely on the ground that the respondent's variety had qualified the DUS criteria. The Court also held that the Registrar erred in rejecting the petitioner's application for conducting a special test. The Court set aside the impugned orders and restored the petitioner's application for conducting the special test to the file of the Registrar for considering it afresh, if necessary.
Fact of the Case:
The petitioner, Pioneer Hi-Bred International Inc., is a wholly owned subsidiary of Pioneer Hi-Bred International Inc., a company incorporated in the United States of America. Pioneer claims that it is involved in the business of research, development, breeding, production and marketing of plant varieties since the year 1926. Respondent no.2, Kaveri Seeds Limited, is also involved in the business of research, development, breeding of seeds and plant varieties.
Finding of the Court:
The Court held that the Registrar erred in rejecting the petitioner's opposition solely on the ground that the respondent's variety had qualified the DUS criteria. The Court also held that the Registrar erred in rejecting the petitioner's application for conducting a special test. The Court set aside the impugned orders and restored the petitioner's application for conducting the special test to the file of the Registrar for considering it afresh, if necessary.
Issues: 1. Whether the Registrar erred in rejecting the petitioner's opposition solely on the ground that the respondent's variety had qualified the DUS criteria? 2. Whether the Registrar erred in rejecting the petitioner's application for conducting a special test?
Ratio Decidendi: 1. The Court held that the Registrar erred in rejecting the petitioner's opposition solely on the ground that the respondent's variety had qualified the DUS criteria. The Court held that the DUS Test report is not final and binding on the opponent and it was open for Pioneer to raise any objections regarding the restorability of the said variety in terms of Section 21(3)(b) of the Act. This would, obviously, include objections to the DUS Test. 2. The Court held that the Registrar erred in rejecting the petitioner's application for conducting a special test. The Court held that the provision for special test is made at the instance of the applicant in cases where the DUS test fails. In other words, if the DUS test result does not indicate that the candidate variety is distinguishable in one essential characteristic from the reference varieties, it is open for the applicant to request for a special test to establish that the candidate variety is distinct. Rule 29 does not preclude any person opposing the registration of a variety or contesting the registration of a variety to seek a special test to establish that the candidate variety is not registrable or that the claims made in the application for such registration are false.
Final Decision: The Court set aside the impugned orders and restored the petitioner's application for conducting the special test to the file of the Registrar for considering it afresh, if necessary.
JUDGMENT :
Vibhu Bakhru, J.
1. The petitioner (hereafter Pioneer) is a wholly owned subsidiary of Pioneer Hi-Bred International Inc., company incorporated in United States of America. Pioneer claims that it is involved in the business of research, development, breeding, production and marketing of plant varieties since the year 1926. Respondent no.2 (Kaveri Seeds Limited hereafter Kaveri) is also involved in the business of research, development, breeding of seeds and plant varieties.
2. The controversy involved in the present petitions relates to the acceptance of Kaveris application for registration of a variety of maize, referred to as KMH50 under the Protection of Plant Varieties and Farmers Rights Act, 2001 (hereafter the Act). Pioneer claims that KMH50 is identical/similar to its variety of maize referred to as 30V92. Pioneer has also filed an application for registration of 30V92 under the Act. Pioneer had filed an opposition to Kaveris application for registration of KMH50 under the Act.
3. Pioneer has also filed an application with Protection of Plant Varieties and Farmers Rights Authority (hereafter the Authority) under Section 24(5) of the Act, inter alia, claiming that KMH50 was identical to 30V92 and the two varieties are one and the same and further alleging that Kaveri had misappropriated the germplasm of 30V92 under the denomination KMH50. Pioneer had also filed an application for conducting special test (DNA Test) for determining the genetic profile of KMH50 and 30V92 in support of its claim that Kaveri was abusing the provisions of the Act.
4. Pioneers application for conducting special test was rejected by the Registrar, Protection of Plant Varieties and Farmers Rights Authority (hereafter Registrar) by an order dated 27.08.2013 on the sole ground that the two varieties of maize (KMH50 and 30V92) were found to conform to the criteria of distinctiveness, uniformity and stability pursuant to the tests conducted in this regard (hereafter DUS). According to the Registrar, a special test as sought for by Pioneer was permissible only if DUS test had failed; that is, the test failed to establish that the plant varieties conform to the DUS criteria. Since, the Authority was of the view that the DUS test was successful, it rejected the Pioneers application for conducting special test.
5. The said order dated 27th August, 2013 is impugned by Pioneer in W.P. (C) 6470/2013. Pioneer also impugns a letter dated 24th June, 2013 sent by the Registrar to the Government of India stating that both the varieties Pioneers 30V92 and Kaveris KMH50 are distinct and are eligible for registration under the Act.
6. Pioneer also impugns an order dated 9th September, 2014, whereby its opposition to Kaveris application (application no. E2ZM40916 KMH50) for registration of KMH50 was closed and Kaveris variety KMH50 was directed to be registered subject to satisfying other conditions. The said order is impugned in W.P. (C) 6028/2014. The orders dated 9th September, 2014 and 27th August, 2013 are hereby referred to as the impugned orders and the letter dated 24th June, 2013 is referred to as the impugned letter.
Factual Background
7. On 22nd August, 2007, Pioneer filed an application or registration of variety of maize bearing denomination 30V92 as an extant variety. On 28th January, 2009, Kaveri filed an application (application no. E2ZM40916 KMH50) for registration of a variety of maize bearing the denomination KMH50. Kaveris application was advertised by the Authority on 3rd May, 2010. Pioneers application was also advertised with the corrigendum on 1st April, 2011.
7.1 Pioneer claims that it was informed about the similarity between its variety and KMH50 by the Manager of PHI Seeds Limited, a wholly owned subsidiary of Pioneer Overseas Corporation and the Senior Research Associate of Pioneer Overseas Corporation who had visited the DUS Test C
