The International Consortium on Agricultural Biotechnology Research (ICABR)


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W. Lesser
Cornell University

The Trade-Related Aspects of Intellectual Property Rights Appendix to the WTO specifically identifies seven forms of intellectual property (IP) protection, but Plant Breeders’ Rights (PBR) is not among them. The only reference to PBR is as an option (or compliment) to patent protection for plants, "an effective sui generis system for the protection of plant varieties" (Article 27.3(b)).

This terminology raises the issue of what indeed is an ‘effective sui generis’ system, and how such a system could be identified. The issue has great practical overtones for multiple countries presently complying with the TRIPs commitments, but which remain uncertain as to what is and is not compatible. This paper will take an economic approach to identifying ‘effective’, arguing that the patent system requirements of TRIPs (Section 5) are by definition both effective and compatible in the TRIPs context. By comparing the TRIPs economic justification for patents and those stated for PBR, it is possible to structure an effective sui generis system as an alternative to patents with accommodations to the different biological and institutional characteristics of plants. This argument is developed based on both the theoretical justification for IPR and experiences with effects. From there a TRIPs-compatible system can be constructed and compared to the UPOV Acts of 1978 and 1991. The major incompatibility is found to be the restrictive definition of ‘national treatment’ under both UPOV acts, compared to the TRIPs. Furthermore, deletion of the UPOV requirements of stability and uniformity in exchange for more technical means of variety identification would make it more possible to protect landraces, which would be more equitable than the current system.

A less technical version of this paper will be presented at the UPOV/WIPO/WTO Joint Symposium, "The Protection of Plant Varieties Under Article 27.3(b) of the TRIPs Agreement", 15 February 1999.