By P. Kandiah & Samini Thiruchelvam
A common dilemma amongst plant breeders is how to protect their new plant variety. In general, there are two ways to do this – by patent or by plant variety protection.
New varieties of plants can be created by genetic engineering. Can such new varieties be protected by patents? The plant varieties, though produced by genetic engineering means, cannot be protected under the Patents Act as it is expressly excluded. However, the process of genetic engineering may qualify for a patent if the process satisfies the patentability criteria. But the plant breeder is not a lab technologist and he would not be interested in just protecting the micro-biological process. The plant breeder’s interest is more in the commercial value of the new plant variety for which the breeder can obtain exclusive rights to the plant and harvestable material of the plant such as fruits, plant juice (sap), wood, flowers, and etc. under the New Plant Varieties Act.