Plant Variety Protection under TRIPS Article 27.3(b)

In one line

Article 27.3(b) lets a member exclude plants and animals from patentability but requires plant varieties to be protected somehow, and India built a system that protects farmers as well as breeders.

The obligation

Article 27.3(b) permits Members to exclude from patentability 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.

And then the sentence that creates the obligation. "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."

Three routes, and a Member must take one.

Patents, as the United States does, where plant varieties may be patented under a utility patent as well as under a plant patent statute.

An effective sui generis system, meaning a system of its own kind, designed for plant varieties.

Or any combination.

The Agreement does not define effective, and it does not name UPOV. That omission is the whole of India's argument.

The review clause. "The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement," so in 1999. The review began in the Council for TRIPS and has never concluded, and it is now entangled with the Doha paragraph 19 mandate on the relationship between TRIPS and the Convention on Biological Diversity and on traditional knowledge.

Why not UPOV

UPOV is the International Union for the Protection of New Varieties of Plants, created by the International Convention for the Protection of New Varieties of Plants of 2 December 1961, revised in 1972, 1978 and 1991, and not administered by WIPO, which is why it does not belong in the list of twenty eight treaties.

Only the 1991 Act is open to new members, and three of its changes from the 1978 Act made it unacceptable to India: what had been an automatic carve out for a farmer's own use became an optional exception under Article 15(2); the right was extended to harvested material under Article 14(2) and to essentially derived varieties under Article 14(5); and the minimum term rose to twenty years, or twenty five for trees and vines. The chapter on the right to food sets out the consequences for Indian agriculture.

India considered accession and declined, relying on the words effective sui generis system in Article 27.3(b), which do not name UPOV and do not define effectiveness.

The Indian system

The Protection of Plant Varieties and Farmers' Rights Act, 2001, with the Protection of Plant Varieties and Farmers' Rights Authority established under section 3.

Four kinds of variety may be registered: a new variety, an extant variety, a farmers' variety, and an essentially derived variety under section 23.