Intellectual Property

Plant Breeders' Rights in Pakistan: Protecting a New Seed or Plant Variety Under the Plant Breeders' Rights Act, 2016

A new wheat line, a heat-tolerant cotton or a better mango cultivar can take a decade to breed and one season to copy. Plants are excluded from patents in Pakistan, so the breeder’s exclusive rights come from a separate certificate under the Plant Breeders’ Rights Act, 2016. Seed companies and research institutes looking for the best plant variety protection lawyer in Pakistan usually face two questions at once: whether the variety is still new after field trials and early sales, and how the certificate fits with the separate variety registration needed to sell seed. This guide deals with both.

Who administers the Act: the Registry and the seed department

Section 3 of the Plant Breeders’ Rights Act, 2016 establishes the Plant Breeders’ Rights Registry under the Ministry of National Food Security and Research, with its headquarters in Islamabad. The Registry receives applications, issues certificates and keeps the register of protected varieties (sections 4 and 9). It is headed by a Registrar appointed by the Federal Government (section 5), who works in coordination with the Federal Seed Certification and Registration Department (FSC&RD).

The division of labour is practical. The Registry decides who owns a variety. FSC&RD, which already runs variety testing and the national register of enlisted varieties under the seed laws, carries out the distinctness, uniformity and stability (DUS) trials on which the decision depends (section 16(2); rules 2 and 12 of the Plant Breeders’ Rights Rules, 2018). A Plant Variety Protection Advisory Committee advises the Ministry and the Registrar on technical questions (section 10).

Applicants in Karachi deal with the Islamabad Registry; there is no separate Sindh office for plant breeders’ rights. Under section 11, applications may be made only for genera or species prescribed by the Federal Government, so the first step is to confirm that the crop has been notified.

What can be protected: novelty, distinctness, uniformity and stability

Section 12(1) protects a new variety that meets the criteria of novelty, distinctness, uniformity and stability and carries an acceptable denomination. The criteria are defined in the Act:

Criterion	What the Act requires
Novelty	The variety must not have been sold or marketed, with the breeder’s agreement, in Pakistan for more than one year before filing; abroad, for more than six years for trees and vines or four years for other plants.
Distinctness	The variety clearly differs from other varieties by one or more identifiable morphological, physiological or other characteristics.
Uniformity	It is sufficiently uniform in its essential characteristics, allowing for the variation expected from its method of propagation.
Stability	Its relevant characteristics remain unchanged after repeated propagation.

Novelty here is about commercialisation, not secrecy. A variety that has been grown in public trials is not automatically lost, but one that has been sold in Pakistan for more than a year usually is. Institutes that release a variety through the seed system before applying should note that the one-year window starts from the first sale.

Section 42 gave existing varieties already registered or commercialised a two-year window from commencement to apply despite the novelty rule, with a shortened term. That transitional window has closed. Plant variety rights do not follow the twelve-month Paris priority system found in the patent and design statutes; foreign breeders instead rely on the four- and six-year foreign sale periods.

Who may apply, and the application

Under section 13, the breeder, discoverer or successor in title, or a person authorised by them, may apply. Where two breeders independently develop the same variety, the first to apply takes the right. The Act includes rules that matter inside institutions:

• Public sector institutes may apply for varieties they develop (section 13(5)), and breeders involved in developing a variety are entitled to at least forty per cent of the royalties or profits the institute earns from it (section 45).
• For a breeder employed in the private sector, the employer may apply, but the rights belong to the breeder unless the employer shows the variety could not have been developed without its facilities (section 13(7)). Employment contracts with breeders should deal with this expressly.

Section 15 requires more than a description of the plant. The applicant must give the breeding history and parental lines, the geographical origin of the genetic material, an affidavit that the variety contains no “terminator technology”, a National Bio-safety Committee certificate for a genetically modified variety, consent where the variety was developed from traditional varieties, and evidence of compliance with laws on access to genetic resources. Missing documents cause most delays.

The application is filed on Form PB-1 under the 2018 Rules (S.R.O. 991(I)/2018). Each variety also needs a denomination that identifies it and is not misleading (section 14). Under section 14(3) that denomination cannot be registered as a trade mark under the Trade Marks Ordinance, 2001, so a seed company that wants a brand should choose a separate trade mark.

Examination, DUS testing, opposition and grant

The 2018 Rules set out the sequence:

1. Preliminary examination. The Registry checks the application within one month; deficiencies must be supplied within one month or the application is treated as abandoned (rule 11).
2. Advertisement. Once the application is in order, it is advertised (section 18; rule 6).
3. Opposition. Any person may oppose within four months of advertisement (section 19(1); Form PB-6). The applicant files a counter-statement on Form PB-7 within two months (rule 7).
4. DUS testing. The applicant supplies seed or propagating material, and FSC&RD conducts replicated trials over two crop seasons (section 16; rule 12).
5. Certificate. If the Registrar is satisfied, the certificate issues in Form PB-10 and is recorded in the register, and notice is published in the Plant Breeders’ Rights Journal (section 21; rule 13).

The opposition grounds in section 19(1) go beyond ownership and protectability. An opponent may also argue that grant would be against the public interest or public order, or that the variety may harm the environment or human, animal or plant health. Because DUS testing runs over two seasons, applicants should plan for a process measured in years and keep enough seed for repeat trials.

A person who did not oppose may still apply to the Registrar for revocation within twelve months of grant on any opposition ground (section 27). The High Court may revoke a certificate on petition or on a counterclaim in an infringement suit (section 28). Appeals from the Registrar lie to the High Court within sixty days (section 46).

Rights conferred, term and essentially derived varieties

Section 22 gives the certificate holder the exclusive right to authorise the sale and marketing of propagating material in Pakistan, its import and export, its conditioning and multiplication, its stocking for those purposes, and the same acts in relation to an essentially derived variety. Between filing and grant, section 23 gives provisional protection in the form of equitable remuneration from anyone who would have infringed had the certificate already issued.

Under section 24 the certificate lasts, from the date of filing, 25 years for trees and vines and 20 years for all other plants. It must be maintained by an annual fee (section 29). The 2018 Rules provide for a staged series of notices and late charges before the Registrar may forfeit a certificate for non-payment (rule 13(5)).

An essentially derived variety is one derived from a protected initial variety that keeps its essential characteristics while being clearly distinguishable from it (section 2). A breeder who makes a minor change to a competitor’s protected variety cannot escape the initial breeder’s rights. Section 20 lets the derived variety be registered, but its owner’s rights are subject to the terms agreed with the initial breeder. Section 38 also treats as infringement the unauthorised use of a protected variety to produce an essentially derived variety or an F1 hybrid for commercial use.

Exceptions, farmers' privilege, benefit sharing and compulsory licences

Section 25 sets the limits of the right. It does not extend to acts done privately on a non-commercial basis, to scientific research, or to using the variety as a source for breeding other varieties (except essentially derived ones). Repeated use of a protected variety as a parent line for commercial hybrid production still needs the breeder’s authorisation.

The farmers’ exception is the provision most often misunderstood. Section 25 allows a farmer to save, use, sow, re-sow, exchange, share or sell “his farm produce”. The proviso stops a farmer from selling seed of a protected variety on a commercial basis without complying with the Seed Act, 1976. Exchange of propagating material among farmers is also preserved. The line between selling grain and selling seed is the line most enforcement disputes will turn on.

Section 32 allows citizens, communities and organisations whose genetic material was used in breeding to claim a share of benefits. The Registrar fixes the amount having regard to the extent of use and the commercial value of the variety.

Compulsory licences are available under section 33 after three years from grant, where public interest (particularly nutrition or health) requires it, where the holder acts anti-competitively, where public demand for seed is not met or seed is unavailable at a reasonable price, or where the holder refuses a licence on reasonable terms. The applicant files Form PB-15 with evidence of an attempt to obtain a voluntary licence (rule 18). The holder is heard and receives adequate remuneration. A compulsory licence may run for up to five years (section 34).

PBR, the Seed Act and patents: three separate systems

A certificate under the 2016 Act is an ownership right. It does not give permission to sell seed. Section 37 states that nothing in the Act authorises selling, importing, exporting or advertising seed, or labelling it, in breach of the Seed Act, 1976. That Act, as amended by the Seed (Amendment) Act, 2015, deals with the registration or enlistment of varieties, seed business, seed testing laboratories and the registration of genetically modified varieties. A seed company therefore usually runs two tracks: variety registration or enlistment for the market, and a plant breeders’ rights application to control who may multiply and sell it. Seed certification also involves provincial seed authorities in Sindh, so the commercial launch plan should cover both levels.

Patents are not an alternative for the variety itself. Section 7(4)(b) of the Patents Ordinance, 2000 excludes plants and animals other than micro-organisms, and essentially biological processes for producing them, although non-biological and microbiological processes are not excluded. A new microbiological process used in breeding may still be patentable, but the variety goes to the Registry. See our guide to patent registration in Pakistan. Where a crop’s value comes from its place of origin, such as a regional rice or fruit, the separate regime for geographical indications in Pakistan may be more useful than a variety certificate.

Pakistan is not a member of UPOV, the International Union for the Protection of New Varieties of Plants, though it is listed as an observer. Its law uses UPOV-style criteria, but there is no reciprocal filing system, and foreign breeders must apply directly in Islamabad.

Enforcement: forum, remedies and notice

Infringement suits are filed under section 38 in a court not lower than that of the District Judge having jurisdiction. Unlike designs, trade marks and patents, the Plant Breeders’ Rights Act is not listed in the Schedule to the Intellectual Property Organization of Pakistan Act, 2012, so the IP Tribunal is not the forum. In Karachi, the valuation of the suit may also bring it within the original civil jurisdiction of the Sindh High Court. For the Tribunal-based IP laws, see our guide to the IP Tribunal.

• Remedies (section 39). Injunction, and at the plaintiff’s option damages or an account of profits, with orders for discovery, production of infringing material and attachment of property to secure the claim.
• Limitation and notice (section 40). A suit must be brought within three years of the infringement. No damages are assessed for the period before the defendant had actual or constructive notice; marking seed bags or containers to show the variety is protected gives constructive notice.
• Penalties. Section 41 leaves penalties to be prescribed. Rule 20 of the 2018 Rules provides for compensation and a fine linked to the loss caused or benefit gained, and penalises false denominations and false claims that a variety is protected.
• Non-resident owners. A certificate holder outside Pakistan must appoint a person in Pakistan to receive notices (section 44).

Evidence wins these cases: certified DUS reports, seed samples taken from the market, laboratory comparisons and proof of notice. A breeder who marks packaging and keeps reference samples is far better placed than one who relies on the certificate alone. For the broader intellectual property picture, see our IP practice.

Common questions

This article is general information about Pakistani law and procedure, not legal advice for any specific matter. If this touches on something you're currently facing, get in touch and we'll advise on your facts directly.