Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.1 SGRP

Objectives of Session 6To discuss the meaning of sui generis protection of plant varieties (UPOV is one such system)

To share experiences of patent protection of plant varieties

To explain how a sui generis system for plant variety protection may relate to other policy and legal issues of relevance to PGRFA (such as protection of the innovations and practices of indigenous and local communities, and elaboration of Farmer’s Rights)

To outline UPOV’s main provisions and some foreshadowing of the later discussions on the main differences between plant varietal protection and patent protection

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.2 SGRP

The WTO TRIPS Agreement

• TRIPS generally imposes the patentability of inventions, whether products or processes, in all fields of

technology and specifically mandates the introduction of a form of legal protection for plant varieties

• Not a global patent system but a treaty establishing minimum standards for Member States

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.3 SGRP

The WTO TRIPS Agreement: Objectives

• To promote IP protection worldwide and reduce trade distortions

• To promote technological innovation and technology transfer “conducive to social and economic welfare,

and to balance rights and interests”

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.4 SGRP

Patents: Core Concepts

• Utility• Novelty

• Non-obvious

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.5 SGRP

The TRIPS Agreement: Article 27.3(b)

• Member States shall provide for the protection ofplant varieties either by patents or by an effective sui

generis system or by any combination thereof.

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.6 SGRP

TRIPS PVP Requirement

• The introduction of plant variety legislation is a novelty for all but a few African States

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.7 SGRP

Patents and PVP

• Interface may be important in designing sui generissystem

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.8 SGRP

Challenges

• Complexity of the issues • Diverse stakeholders and power disparities

amongst them• Complex international negotiation process

and multiple fora• Ambiguity of legal instruments• Lack of common policy framework

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.9 SGRP

UPOV Convention

Minimum standards for sui generis protection of plant varieties

Acts of 1961/1972, 1978/1991

50 Member countries

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.10 SGRP

Protection Under UPOV

• TERRITORIAL, EXCLUSIVE RIGHTS

• DEVELOPED/DISCOVERED VARIETIES

• EXERCISE OF RIGHTS: REPRODUCTIVE MATERIALS HARVESTED MATERIAL AND PRODUCTS (1991)

• SCOPE OF RIGHTS– BREEDERS’ EXEMPTION– FARMERS’ PRIVILEGE

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.11 SGRP

Patents vs. PVPs PATENTS

PVPs

Genes, cells, plants, varieties Plant varieties

Novelty, inventive step, industrial applicability

Novelty, distinctness, uniformity, stability

Exclusive rights over use, research and breeding

Farmers’ privilegeBreeders’ rights

Law and Policy of Relevance for the Management of Plant Genetic Resources - 3.6.12 SGRP

Options

--UPOV 1978 (all varieties, national treatment) --UPOV 1991 --UPOV amended (criteria, compensation to

farmers)

• Dual system (uniform varieties/landraces)• Other sui generis options