The Sui Generis System of Plant Variety Protection Under the TRIPS Agreement: An Empty Promise for Developing Countries

Abstract

The TRIPS agreement offered members, the opportunity to exclude from patentability, inventions for which the commercial exploitation under a patent regime might cause serious prejudice to the public order or morality, including the protection of human, animal or plant life or health, and the protection of the environment. It allows members to provide for the protection of plant varieties, either by patent or by an effective sui generis system or by any combination thereof. The flexibility in the choice of the protection system seems to fit the need and expectation of Developing countries for whom patent should not, under any condition, be imposed on living organisms or natural resources. However, a close look to the agreement shows discrepancies and contradictions to what is actually allowed to be excluded from the reach of patent. In fact, the TRIPS agreement excluded plants and animals from patentability, and at the same occasion maintained “micro-organisms” and “microbiological” processes for the production of plants or animals under that same patent regime. This move emptied the sui generis system of its quintessence, and put at risk, small holder farmers, whose practice of saving, sharing, and/or replanting seeds is engraved in a long and generational tradition. More importantly the small holder farmers representing the primary workforce population in developing countries, are more than ever vulnerable, especially at a moment where extraterritorial patent protection is enforced and monitored under the TRIPS agreement.

Keywords: Sui generis system, Plant patent, Plant variety protection, UPOV, TRIPS, WTO agreement, National Treatment, Most Favor Nations, Extraterritorial Patent enforcement, 'Brown-bag', Breeders' exemption, Farmers' privilege, Breeders rights

JEL Classification: F10, F13, K10, K32, K33, L17, N50, N57, O13, O20, O24, O34, O55, O57, Q00, Q01, Q10, Q17, Q18, Q19,