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Plant Genetic Resources for Food and Agriculture: Facilitated Access or Utility Patents on Plant Varieties?

bioDevelopments International Institute Inc. in collaboration with Cornell University and The Biodesign Institute of Arizona State University, IP Strategy Today N° 13 – 2005 (2005)

Intellectual Property systems, more specifically Patent and Plant Variety Protection systems, vary by country. In compliance with TRIPS, it is generally accepted practice for countries to adapt their IP legislation o their socio-economic needs. Appeals from certain circles for a global revision of the UPOV Convention re accordingly not well founded. Because industry investment in countries is not determined by strong IP protection but by promising market potential, this paper argues that it is more important to facilitate access to plant genetic resources and to transfer technology to developing countries than to strengthen the global system of intellectual property rights. Indeed, patent protection for plant varieties per se is inappropriate from a global perspective, especially for developing countries, but the same may be true for the United States. Considering some key examples, this essay criticizes the practice of patent drafting for inventions directed o new plant varieties in the United States and shows that several claim categories of utility patents or plant varieties are questionable. It also concludes that the examination of such patent applications and the enforceability of several claim categories are problematic. At the very least, serious consideration should be given to the issuance of guidelines for disclosure requirements and more stringent valuation standards for determining whether a patent claim on a plant variety is obvious. This is considered essential to rebalance the rights to plant varieties granted by utility patents with a contribution to society.n a TRIPS Framework In not more than 8 Articles the TRIPS Agreement provides a general framework for Patents that considers all of the following: the minimum requirements for patentable subject matter, the exclusive rights a patent must confer, patent disclosure conditions, what limited exceptions to exclusive patent rights may be conferred, and the conditions under which the subject matter of a patent may be used without the holder’s authorization. TRIPS also mentions briefly that Members shall provide protection for plant varieties by patents, by an effective sui generis system, or by any combination thereof. It does not go into detail about the criteria for an effective sui generis system or about how to combine such a system with a patent system.

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