Tuesday, May 10, 2011

Plant Varieties Rights; A study in the light of TRIPS and UPOV

Plant Varieties Right is a special kind of Intellectual Property Right. It indicates the right of breeder of a new variety plant from third party infringement. It is synonyms to Plant Breeder’s Right. It includes protection for plant components (e.g. specific genes or chromosomes), plant products (e.g. fruit, oils, pharmaceuticals), reproductive materials (e.g. seeds or cuttings), etc. The right excludes third parties from reproducing, consuming, selling, exporting, etc of the protected variety.
International Laws on Plant Varieties Right
Conventions of UPOV and TRIPS are the important sources of laws which are dealing plant varieties rights. In which, WTO’s TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement is accepted world wide. Article 27 to 34 of TRIPS Agreement is dealing with protection of plants. Article 27.3 (b) prescribes the member states of WTO to make laws for protection of plant varieties. Laws can be made either through patents or through an effective sui generis[i] law or through combination of these two.[ii]
TRIPS Art 27.3(b) “……However, 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 Article 27 is a controversial one because this same Article commanding on the member nations to keep away from patency rights on plant varieties. The provisions are as follows:
TRIPS Article 27.2 “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre[iii] public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment,…”
TRIPS Art 27.3 “Members may also exclude from patentability:
            (b)    plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes…..”
Discussions and reviews are still going on TRIPS Article 27. The Famous Doha Round Talks commenced on November 1, 2001, includes the issue review of Article 27 of TRIPS Agreement. Recently UK Prime Minister David Cameroon recommended that “the Doha round talks should finish by the end of this year (2011)” .[iv]

World Governments depends on TRIPS and UPOV for making laws in respect of protection of plant varieties. Even though, UPOV (International Union for the Protection of New Varieties of Plants) was an early attempt[v], till now it has 69 member nations only[vi].

Plant Varieties Rights in different countries

1)      United States

United States is a member of UPOV and is also bound by TRIPS Agreement. It does not follow a sui generis system. Plant Variety rights in United States are carried on by Plant Variety Protection Act, 1970.It grants Plant Variety Protection Certificates. Unlike other nations, they provide patency for any living organism that is the product of human intervention (such as by some breeding process or laboratory –based alteration).[vii] They give grace period for patency of living organisms and after the period the right over product shall give for public. In case of farmers, they give limited exemptions. Farmers can protect seeds for replanting but not allowed to sell to a third party.

2)      Australia

According to Australia, they accepted both TRIPS and UPOV mechanisms for patenting of plants. Plant Breeder’s Right Act (1994) is the Act which deals with this. They give short period of protection. There is no need of patency right for the use of variety for non commercial purposes. Plant Breeder’s Right Act is administered by Plant Breeder’s Right Office under the IP Australia.[viii]

3)      European Union

The European Union has laws for Plant Varieties Rights at both national and Union level. People can acquire rights from any nation in the Union. CPVR (Community protection of Plant Varieties) enables people to get rights. But it is not possible to acquire rights from both national level and under CPVR[ix]. If both rights are granted to same variety then CPVR suspend national right for the said duration.

4)      India

Under Art 27.3of TRIPS, as it prescribes for patents or sui generis system or combination of these two, India followed sui generis system. Many developing nations follow sui generis system which helps to makes laws according to their concept. China and Thailand are follows UPOV. Sui generis protection is weaker than patent protection, in that right holders can only prevent third parties from commercially exploiting the protected material.[x] India’s plant varieties rights are governed by Indian Protection of Plant Varieties and Farmer’s Right Act, 2001. Section 14 and 15(1) of the Act classifies plants into four main classes. They are new varieties, extant varieties, essentially derived varieties and farmer’s varieties. Section 15 strictly prescribes certain conditions for registering a new variety. They are novelty, distinctiveness, uniform and stability.
Indian Protection of Plant Varieties and Farmer’s Right Act, Section 15(1) “A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.”


There are laws for protection of  Plant Varieties Rights in every nations but it need to be more democratic. For that purpose, laws shall be changed to balance between International Obligations, traditional knowledges and farmer’s right. We shall expect the International talks on this subject shall conclude with good recommendations for it.

Prepared by Jino M Kurian, final year student B.A.,LL.B,Kerala Law Academy Law College,Thiruvanathapuram.

[i] TRIPS does not define Sui generis but UPOV defines it. Sui generis generally means that it enables member countries to make their own laws for protect plant varieties.
[ii] Jayashree Watal, Indian Council For Research On International Economic Relations, Intellectual Property Rights  In Indian Agriculture.
[iii]The word  ‘Ordre’(Danish)  means order
[iv] http://redo.me.uk/news/www.bbc.co.uk/news/business-12309484
[v] In 1961 by the Paris Convention
[vi]Status as on April 4,2011
[vii]Diamond v Chakarbarty (1980) 447 US 303)
[viii]Can IP protects Plants, article published in Bios, Cambia.
[ix]Can IP protects Plants, article published in Bios, Cambia.
[x] Jayashree Watal, Intellectual Property Rights in Indian Agriculture, page no.6

No comments: