1. Protecting Our Food But Leaving Our Harvest? Srividhya Ragavan University of Oklahoma Law Center

2. Article 27.3 TRIPS “…members shall provide for the protection of plant varieties either by patents or an effective sui generis system or by any combination thereof”

3. Disadvantages in UPOV Diluted Novelty & Distinctiveness reqmt. Exaggerated scope of protection for breeders Lack of public interest exceptions.

4. Definition of Novelty The variety shall be deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety The Sale Standard for novelty in UPOV excludes: Cultivation, reference collection, publication etc., will not defeat novelty Allows the breeder to claim protection over genetic varieties that have been cultivated for centuries but never sold.

5. Distinctiveness (Art. 7) “The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application.” Application materials that are a matter of common knowledge can pass the test of distinctiveness if it can be distinguished from another material that is a matter of common knowledge.

6. Distinctiveness (Art. 7) “The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application.” Art 14: A variety is “a matter of common knowledge,” … if it has been subject “of an application for the granting of a breeder's right” or has been entered in the official register of varieties, in any country.”

7. Sole requirement for distinctiveness - ability to distinguish from another variety in the official register or, for which an application has been made. Plant A is a rare but well known plant within a small indigenous society. But Plant A is distinguishable from all varieties in the official register – UPOV would deem Plant A as distinct.

8. Varieties already cultivated, being cultivated, well known, and are indistinguishable from well known varieties will continue to qualify as “distinct” so long as close cousins of the variety have not been subject to an application for breeder’s rights.

9. Scope of protection for breeders Breeder’s right covers protected variety and “varieties not clearly distinguishable” (art. 14 (5)(a))

10. Art. 14 (5)(b) - Breeder can exercise rights over “essentially derived varieties” ‘Essentially derived varieties’ are: –predominantly derived from the variety predominantly derived from an initial variety –clearly distinguishable from the initial variety

11. Thus protection extends over clearly distinguishable & clearly indistinguishable varieties. Rights over essentially derived varieties: –Breeder can claim rights of farmer’s experimented variety although it is clearly distinguishable from the protected variety

12. Limitations on Breeder’s Rights Breeder’s rights have few restrictions –Art 14(1)(b): “Breeder may make his authorization subject to conditions and limitations” –Art 17: “No Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest” “Public interest” been left undefined

13. Economic effect of PBR Current operation of PBR will also be subject to operations under Agricultural Agreement –Art 13 of AoA precluded challenges for noncompliance with Agricultural liberalization commitments –Exceptions to GATT, AoA and SCM permitted developed nations to maintain subsidies of totaling upto $ 150 billion Dumping caused from the agricultural subsidies of several developed nations –Resale in third markets at less than the cost of production in the exporting country; The export subsidies, direct payments and credits bridge the gap between high cost of production, high internal prices and lower world prices.

14. Effect of subsidies on PBR Assuming PBR results in higher yield, newer varieties and better crop Economies will flourish if farmers can sell the produce Farmers will not be able to sell because of the dumping of subsidized products in both local and international markets

15. Effect of PBR on Farming Abundant availability of food becomes inconsequential if majority population (farmers) suffers from lack of trade and hence is unable to afford food Farmer cannot stock and reuse the seed because UPOV prohibits it (art 14) Farmer cannot continue farming because he may not be able to afford the cost of seed for the next cultivation –Throws farmers out of business –Creates more international trade barriers – atleast does not reduce the international trade barriers. Majority of population will be affected if the produce of the farmers cannot be sold

16. Suggestions Agricultural liberalization to precede PBR