Protecting Biodiversity and Heritage: IP Rights for Plant Varieties and Traditional Knowledge

India is home to over 45,000 plant species and thousands of years of medicinal, agricultural, and cultural knowledge passed down through generations. Yet for decades, this extraordinary wealth had no reliable legal protection. Companies abroad could – and did – file patents on everything from the wound-healing properties of turmeric to the natural pesticide qualities of the neem tree, all based on knowledge that Indian communities had held long before modern patent law existed. This gap between the richness of India’s biological and cultural heritage and the inadequacy of conventional IP frameworks is precisely what pushed plant varieties and traditional knowledge to the forefront of intellectual property law. Today, this is one of the fastest-growing and most consequential areas of IP – and understanding it is essential for any student of law in India.

Why plant varieties and traditional knowledge need IP protection 🔗

Conventional intellectual property – patents, copyrights, trademarks – was designed for industrial inventions and creative works. Plant varieties and traditional knowledge (TK) don’t fit neatly into those categories. A farmer who spent generations selecting and improving a particular rice variety has not “invented” anything in the patent-law sense, yet the contribution is real, valuable, and economically significant. Similarly, an Ayurvedic formulation used for centuries is not a “new” invention, but it represents centuries of empirical knowledge that deserves protection from misappropriation.

The problem became stark through a series of high-profile biopiracy cases. In 1995, the US Patent and Trademark Office granted a patent to the University of Mississippi for the use of turmeric in wound healing – knowledge documented in ancient Sanskrit texts. India’s Council of Scientific and Industrial Research (CSIR) successfully challenged and revoked this patent by presenting prior art evidence. The neem and basmati controversies followed a similar pattern. These cases made it clear that India needed dedicated legal mechanisms – both to reward genuine innovation and to defend its existing knowledge from being privatised by outsiders.

The international framework: UPOV and TRIPS 🔗

At the international level, plant variety protection is primarily governed by the International Union for the Protection of New Varieties of Plants (UPOV), an intergovernmental organisation established in Geneva in 1961. UPOV’s core purpose is to provide and promote an effective system of plant variety protection that encourages the development of new varieties for the benefit of society. It does this by granting plant breeders an intellectual property right known as the breeder’s right, which requires anyone who wants to commercially propagate a protected variety to obtain the breeder’s authorisation.

The UPOV Convention has been revised multiple times – in 1972, 1978, and 1991 – with each revision progressively strengthening breeders’ rights. Under the 1978 Act, farmers could freely save and exchange seeds of protected varieties, but the 1991 Act significantly restricted this, allowing seed saving only within reasonable limits and primarily for subsistence use. Today, most UPOV members are bound by the 1991 Act. For a variety to qualify for protection under UPOV, it must satisfy four criteria – it must be new, distinct, uniform, and stable (the DUS criteria).

The other key international instrument is the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), specifically Article 27(3)(b), which obliges WTO member states to provide protection for plant varieties either through patents, a sui generis system, or a combination of both. India ratified TRIPS in 1994, and this obligation directly triggered the need for dedicated domestic legislation. Notably, India is not a member of UPOV – it chose the sui generis route instead, which allowed it to craft a law that better reflected the realities of Indian agriculture and the centrality of the farmer in seed systems.

For traditional knowledge specifically, the Convention on Biological Diversity (CBD) – ratified by India and 196 nations – is the key international treaty. The CBD is designed to promote sustainable development of biological diversity, conservation, and the fair and equitable sharing of benefits arising out of the use of genetic resources. The Nagoya Protocol (2010), adopted under the CBD, further operationalised the Access and Benefit Sharing (ABS) framework. At WIPO, the Intergovernmental Committee (IGC) has been working on a legally binding international instrument to protect traditional knowledge and genetic resources, though a final treaty is yet to be concluded.

India’s sui generis response: The PPV&FR Act, 2001 🔗

India’s primary domestic law for plant variety protection is the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act). Enacted as Act No. 53 of 2001, it came into force in phases – key provisions from November 2005 and the full Act by October 2006. Its defining feature is that it is a sui generis system, meaning it is unique and does not simply replicate UPOV. It balances the rights of commercial plant breeders with the rights of farmers and public sector research institutions – a balance that UPOV 1991 does not adequately provide.

Who gets protection under the Act? 🔗

The Act recognises three broad categories of rights holders. Plant breeders – including private companies and research institutions – who develop new, distinct, uniform, and stable varieties can register them and receive exclusive rights to produce, sell, market, distribute, import, and export that variety. Researchers are permitted to use any registered variety for experimental purposes without the breeder’s permission. Most significantly, farmers are given wide-ranging protections. Farmers are entitled to save, use, sow, re-sow, exchange, or sell their farm produce including seeds of a registered variety, provided the seeds are unbranded. They are also totally exempt from paying any fees in proceedings under the Act, and they may claim compensation if a registered variety fails to perform as expected under given conditions.

Key features of the Act 🔗

The Act establishes the Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FRA), a statutory body responsible for administering registrations, resolving disputes, and promoting farmers’ rights. The Authority also confers the Plant Genome Saviour Award, recognising farmers and communities who conserve genetic resources of landraces and wild relatives of economic plants – an acknowledgment of the custodial role that farming communities have played in preserving biodiversity over centuries.

A significant aspect of the Act is the benefit sharing mechanism. When a commercial variety is developed using genetic material contributed by farming communities, those communities are entitled to a share of the benefits accruing from the variety’s commercialisation. The Act also requires applicants to declare the geographical origin of genetic material used and to acknowledge any contribution by a farmer, village community, or institution in developing the variety. This disclosure requirement is a direct anti-biopiracy safeguard.

The Act also provides for the registration of Essentially Derived Varieties (EDVs) – varieties that are predominantly derived from an existing registered variety but contain certain distinct characteristics. This prevents breeders from making minor modifications to registered varieties and claiming them as entirely new creations, thereby undermining the original breeder’s rights.

Protecting traditional knowledge: India’s legal arsenal 🔗

India’s approach to protecting traditional knowledge is multi-layered, combining legal frameworks, defensive documentation, and international engagement. The principal laws at work are the Biological Diversity Act, 2002, the Patents Act, 1970 (as amended), and the PPV&FR Act itself.

The Biological Diversity Act, 2002 🔗

The Biological Diversity Act (BDA) was enacted to give effect to India’s obligations under the CBD. The Central Government under the Act is mandated to respect and protect the knowledge of local people relating to biological diversity, including through registration of such knowledge and other measures including a sui generis system. Foreign entities must obtain prior approval from the National Biodiversity Authority (NBA) before accessing India’s biological resources or associated traditional knowledge for research or commercial use. The Act mandates equitable benefit sharing with local communities as a condition of such access, and prohibits patenting of inventions based on Indian biological resources without NBA approval.

The Patents Act and traditional knowledge 🔗

Section 3(j) of the Patents Act, 1970 expressly bars seeds, plant varieties, and biological processes from being included within the definition of “inventions” patentable in India. Additionally, Section 3(p) bars inventions that are traditional knowledge or an aggregation or duplication of known properties of a traditionally known component or components. Section 10(4)(d) requires patent applicants to disclose the source and geographical origin of any biological material used in the invention – a requirement aimed squarely at preventing biopiracy at the application stage.

The Traditional Knowledge Digital Library (TKDL) 🔗

Perhaps India’s most innovative and globally celebrated contribution to TK protection is the Traditional Knowledge Digital Library (TKDL). India is the only country in the world to have set up such an institutional mechanism, which enables prompt and near cost-free cancellation or withdrawal of patent applications relating to India’s traditional knowledge. Launched in 2001, the TKDL digitised information from 148 books of prior art from Ayurveda, Unani, Siddha, and Yoga, creating a database containing information on over 2.26 million medicinal formulations in multiple languages, including Sanskrit, Arabic, Persian, Urdu, and Tamil – making it accessible to patent examiners worldwide.

The TKDL has been made available to major patent offices including those of the US, UK, Germany, Australia, Canada, and the European Patent Office (EPO) under access agreements with strict non-disclosure safeguards. In Europe alone, within roughly two years of the TKDL’s deployment, India succeeded in bringing about the cancellation or withdrawal of 36 patent applications seeking to claim rights over traditionally known medicinal formulations. This “defensive protection” model – using documentation to prevent erroneous patents rather than waiting to litigate them – has become a global benchmark.

Remaining challenges and emerging issues 🔗

Despite these impressive frameworks, significant challenges persist. One major gap is that the TKDL covers primarily codified knowledge from classical texts and largely leaves out oral traditions and local folk practices. Much of tribal and folk knowledge remains unrecorded and at risk, with many tribal communities wary of formal documentation for fear of exploitation. The benefit sharing provisions of the Biological Diversity Act, while well-designed on paper, have faced persistent implementation failures – limited community awareness of rights and delayed or absent distribution of benefits are recurring criticisms.

The PepsiCo-potato farmers controversy brought another dimension into sharp focus. PepsiCo registered its FL-2027 potato variety under the PPV&FR Act in 2016, then sued farmers in 2018 for growing and selling the same variety, arguing they were not “subsistence farmers” eligible for exemption. The case raised fundamental questions about the scope of farmers’ rights under the Act and generated significant public debate before being settled. It illustrated the tension at the heart of any IP system that tries to simultaneously protect commercial investment and preserve the rights of small and marginal farmers.

At the international level, a global framework for traditional knowledge protection has not yet been established despite years of negotiations at WIPO’s Intergovernmental Committee. India has been a consistent advocate for a binding international instrument, while developed countries – where most patent-filing activity occurs – have been more reluctant. The CBD-Nagoya Protocol framework, though ratified by many countries, continues to face uneven implementation, particularly in ensuring that benefit sharing obligations are enforced when genetic resources cross borders.

Why this area of IP matters 🔗

The protection of plant varieties and traditional knowledge is not merely a technical IP issue. It sits at the intersection of food security, public health, sustainable development, indigenous rights, and global equity. India is one of the world’s most biologically and culturally diverse countries, and its intellectual property law regime continues to evolve rapidly to protect this heritage. Every time a traditional medicinal formulation is patented abroad without acknowledgment or benefit sharing, communities lose not just economic entitlement but cultural recognition. Conversely, a well-functioning system that protects both breeders and farmers can accelerate agricultural innovation, encourage conservation of genetic diversity, and ensure that the benefits of that innovation flow equitably.

India’s PPV&FR Act, its Biological Diversity Act, and the TKDL represent a thoughtful, if imperfect, attempt to navigate this complex terrain. They reflect a philosophy that IP law must serve not just commercial innovation but also social justice, cultural preservation, and ecological sustainability – principles that are increasingly relevant as the world confronts climate change and food security crises that will depend on the very genetic diversity these frameworks seek to protect.

What do you think? India chose a sui generis path under TRIPS rather than joining UPOV – do you think this was the right call given the socio-economic realities of Indian agriculture? And with much of tribal and oral traditional knowledge still outside the TKDL’s scope, what legal or institutional mechanisms could realistically fill that gap without exposing communities to further exploitation?

References

1. https://www.wipo.int/en/web/wipo-magazine/articles/protecting-indias-traditional-knowledge-37721
2. https://www.upov.int/en/about-upov/overview
3. https://www.farmersrights.org/international-negotiations/other-international-processes/the-union-for-the-protection-of-new-varieties-of-plants-upov/
4. https://www.intechopen.com/chapters/78249
5. https://www.indiacode.nic.in/handle/123456789/1909?view_type=browse
6. https://en.wikipedia.org/wiki/Protection_of_Plant_Varieties_and_Farmers'_Rights_Act,_2001
7. https://www.wipo.int/wipolex/en/legislation/details/6058
8. https://www.mondaq.com/india/patent/1316620/overview-of-protection-of-plant-varieties-and-farmers-rights-act-2001
9. https://www.giswatch.org/en/economic-social-and-cultural-rights-escrs/digital-protection-traditional-knowledge-questions-rais
10. https://chambers.com/articles/safeguarding-traditional-knowledge-under-indian-patent-law-can-legal-frameworks-keep-pace
11. https://lawbhoomi.com/plant-variety-protection-and-farmers-rights-act/
12. https://csriprnusrl.wordpress.com/2025/06/26/from-biopiracy-to-benefit-sharing-a-techno-legal-analysis-of-the-wipo-treatys-framework-for-protecting-indigenous-rights-and-traditional-knowledge-in-india-within-a-global-context/
13. https://pmc.ncbi.nlm.nih.gov/articles/PMC8172557/