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Plant genetic resources
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INTERNATIONAL TREATY
International Treaty
On Plant genetic resources For Food And Agriculture
Related project
KENYA: Insect
Resistant Maize Improvement (IRMA)
ERITREA: Millet
Improvement
Intellectual
property
Rights on Plant genetic resources
By: Walter Smolders
Walter Smolders, formerly Chairman of the Intellectual
Property Committee of the International Seed Federation, is a European
patent lawyer living in Belgium. The Syngenta Foundation asked Mr. Smolders to identify key elements of intellectual property law governing Plant genetic resources.
Patent rights and plant breeder’s rights are national rights
or, as is the case for OAPI1 countries, regional rights. It is
within the authority of the countries involved to adjust such
rights to the particular local needs. Such rights have been
created to encourage investment in research and plant
breeding to the benefit of society. Accordingly, there must
be a fair balance between the extent of the rights that
are granted and their contribution to society.
Trade Related Aspects of Intellectual
Property Rights (TRIPS)
TRIPS is the result of the last negotiation Round (Uruguay
Round) under the auspices of the General Agreement on
Tariffs and Trade (GATT) which also created the World Trade
Organization (WTO). It sets minimum standards for obtaining
and enforcing protection of different kinds of intellectual
property systems, including for patents.
TRIPS objectives include ‘transfer and dissemination of
technology’ and ‘a balance of rights and obligations’.
TRIPS states that members may adopt measures necessary
to promote the public interest in sectors of vital importance
to their socio-economic and technological development.
It leaves member states room to tailor their intellectual
property rights to their local needs.
TRIPS provides (Article 27.3.(b)) that member states may
exclude plants from patent protection but specifies that;
“Members shall provide for the protection of plant varieties
either by patents or by an effective sui generis system or
by any combination thereof.”
The term sui generis is a Latin term for ‘of its own kind’, and
suggests a system specifically designed to address the needs
and concerns relating to the protection of new plant varieties.
The UPOV system is such a sui generis system.
Patents
Patents provide the right to an inventor to exclude others from
making and using his invention in a defined territory and for
a limited period of time, in return for a disclosure teaching how
to make and use the invention.
Patents aim to promote progress; the rights granted by a patent
are believed to provide an incentive to invest in research.
A patent is only enforceable in the territory where the patent
protection is sought and granted.
The term of protection is in general 20 years from the filing date
of the patent application.
In order to be patentable an invention must be novel, capable
of industrial application and involve an inventive step.
Most countries, including OAPI member states, do not grant
patents for inventions the exploitation of which is contrary to
public policy or morality, inventions having as their subject matter
plant varieties, animal species and essentially biological processes
for the breeding of plants or animals other than microbiological
processes and the products of such processes (notable exceptions
of this exclusion areas, Australia, Japan and USA).
Moreover, the rights conferred by a patent do often not extend
to acts done privately and for non-commercial purposes; acts
done for experimental or research purposes (often referred
to as experimental use exemption or research exemption).
The extent of such exemptions varies from country to country
and is often not specified in the patent act, but determined
by court decisions.
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