Session 6 : An Introduction to the TRIPS Agreement UPOV, 1978 and 1991 and WIPO- Administered Treaties

Law and Policy of Relevance for the Management of Plant Genetic Resources Objectives of Session 6  To discuss the meaning of sui generis protection of plant varieties (UPOV is one such system)  To outline UPOV’s main provisions and understand the main differences between plant varietial protection and patent protection  To explain how a sui generis system for plant varietial protection may relate to other policy and legal issues of relevance to PGRFA (such as, protection of traditional knowledge and the innovations and practices of indigenous and local communities, and elaboration of farmers’ rights)

Law and Policy of Relevance for the Management of Plant Genetic Resources Objectives of Session 6, continued  To outline the TRIPS Agreement’s main provisions relevant to GR profesionals  Discuss and understand WIPO treaties relevant to GR professionals

Law and Policy of Relevance for the Management of Plant Genetic Resources The WTO TRIPS Agreement Obliges Member States to comply with minimum standards of protection, such as the following: Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application [Article 27.1] Protection of plant varieties [Article 27.3(b)] Establishes minimum standards—not a uniform system of protection

Law and Policy of Relevance for the Management of Plant Genetic Resources The TRIPS Agreement: Article 27.3(b) Members may exclude plants and animals from patentability Members may exclude plants and animals Members must protect microorganisms Members shall provide for the protection of plant varieties either by patents or by an effective suigeneris system or by any combination thereof

Law and Policy of Relevance for the Management of Plant Genetic Resources TRIPS: other provisions Protection of undisclosed information (e.g., hybrids) Trademarks (associated with seeds’ generic denomination) Geographical indications

Law and Policy of Relevance for the Management of Plant Genetic Resources Protection by patents Territorial, exclusive rights Subject matter: Inventions Conditions of patentability: Novelty Inventive or non-obvious step Industrial applicability or Utility Limited exceptions, compulsory licenses

Law and Policy of Relevance for the Management of Plant Genetic Resources Protection by an effective sui generis system UPOV Convention Acts of 1961/1972, 1978/199 Other sui generis regimes

Law and Policy of Relevance for the Management of Plant Genetic Resources Protection under UPOV Territorial, exclusive rights Subject matter: Developed / discovered plant varieties Conditions of protection: –Commercial novelty –Distinctness –Stability –Uniformity Exercise of rights: reproductive materials, harvested material and products (1991)

Law and Policy of Relevance for the Management of Plant Genetic Resources Protection under UPOV (1991) Breeders’ exemption The breeder’s rights shall not extend to acts done for the purpose of breeding other varieties Farmers’ privilege Each contracting party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder’s right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or an essentially derived variety

Law and Policy of Relevance for the Management of Plant Genetic Resources Other sui generis options Patents & PVP combined PVP & recognition of farmers’ rights Dual PVP system: Uniform varieties / landraces Effective protection-National treatment

Law and Policy of Relevance for the Management of Plant Genetic Resources PATENTS PVPs Genes, cells, plants, varietiesPlant varieties Novelty, inventive step, industrial applicability Novelty, distinctness, uniformity, stability Exclusive rights over use, research and breeding Farmers’ privilege Breeders’ rights Patents vs. PVPs

Law and Policy of Relevance for the Management of Plant Genetic Resources Developments to note Review of article 27.3 (b) in WTO Paragraph 19 of Doha Ministerial Declaration: TRIPS & CBD, protection of TK Obligation to disclose the origin of biological materials in patent applications Genetic resources and TK in WIPO

Law and Policy of Relevance for the Management of Plant Genetic Resources To remember … TRIPS is flexible UPOV is one of the sui generis systems that may be adopted Patents may affect the use of unpatented varieties Legislation to be adopted should respond to farming systems and goals of each country

Law and Policy of Relevance for the Management of Plant Genetic Resources  The Paris Convention  The Berne Convention for the Protection of Literary and Artistic Works  The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedures  Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration  Madrid Agreement Concerning the International Registration of Marks  The Patent Cooperation Treaty (PCT) WIPO-Administered Treaties