INTRODUCTION

The International Union for the Protection of New Varieties of Plants (UPOV) is pleased to contribute to the Meeting on Seed Policy and Programmes in Sub-Saharan Africa and to present a paper on intellectual property rights in general and plant variety protection in particular.

The paper bears the title assigned to it by the program of the meeting, although we would have formulated it differently, and follows the suggestions made by the organizers for its contents.

PART I: BASIC ASPECTS OF INTELLECTUAL PROPERTY

Intellectual property is a specialized area of law which is classically divided into:

a) industrial property (patents for inventions, trademarks, special rights for integrated circuits, etc.)

b) literary and artistic property (copyright, rights of performers, etc.).

The distinction has become quite artificial with the diversification of the achievements of human ingenuity and the corresponding creation of new intellectual property systems. Because of the vagaries of history, which led to the creation of UPOV as an independent organization next to the World Intellectual Property Organization (WIPO), plant variety protection is rarely mentioned in the lists of intellectual property categories! It is, nevertheless, a form of industrial property.

Intellectual property law pursues two main objectives:

(a) It provides rights to creators and innovators as a reward for their achievements:
"Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author"
(Article 27(2) of the Universal Declaration of Human Rights).

(b) It provides incentives for creativity and innovation and, in the final analysis, economic, social and cultural progress. A particular facet of this objective is the transfer of technology.

Quite unsurprisingly, it is the second objective which constitutes the major force driving the executive and legislative powers in creating and shaping the various intellectual property systems.

The following categories of intellectual property are particularly relevant to this meeting:

1. Trademarks;
2. Patents;
3. Plant variety protection.

Trademarks will not be dwelled into here. Suffice it to say that they have an important role to play in identifying products (e.g. seeds) of a particular enterprise, group of enterprises or association of producers, from other products of the same kind and in conveying to customers indications – and in many instances – guarantees on the quality of the product.

The patent and plant variety protection systems confer on certain beneficiaries – inventors and breeders – specific rights which fall short of the property rights attaching to material goods. In many legal systems, intellectual property is treated separately from movable and immovable property (and may be called, for instance in German, "immaterial property"). The following features are of major importance:

(a) Unlike property in material goods, for instance in the first plants which represent a variety, the rights do not arise automatically but are granted by an official agency upon an application. The granting of those rights is also subject to detailed conditions.

(b) The rights are territorially limited to the State or group of States (for instance the member States of the African Intellectual Property Organization) for which they are granted; a patent or a plant variety protection certificate issued in one country deploys no effect elsewhere.

(c) There is no "monopoly" in the true sense of the word, i.e. the privilege of being the only person entitled to exploit the invention or the variety. There only is a right to exclude others from performing acts of exploitation or – this amounts to the same thing – to make the performance of those acts subject to an authorization which will ordinarily be granted with limitations and conditions, one of which being the payment of a "royalty" or "license fee."

(d) The right to exclude is moreover limited to certain acts of exploitation in two ways: the scope of the right may be defined comprehensively so that the acts of exploitation that are not encompassed in the definition would not be subject to authorization by the title holder; the law may define a broad scope but the same law (or case law) may make it subject to exceptions and restrictions. Those two ways are frequently used in combination.

(e) The right to exclude is also time-limited: usually 20 years from the date of application in the case of patents; more and more frequently 20 (or even 25) years from the date of grant in the case of plant variety protection certificates (25 or even 30 years in the case of trees and grapevines). It is subject to payment of an annual fee. Once the right has ceased to be in force, its object (the invention or the variety) falls into the public domain and becomes freely available.

(f) The right is explicitly or implicitly subject to obligations. In particular, the invention to be patented must be the subject of a description that discloses it in a manner sufficiently clear and complete for it to be evaluated, and to be carried out by a person having ordinary skill in the art; the protected variety must be maintained throughout the period of protection, on pain of cancellation of the right.

(g) A particular explicit or implicit obligation relates to the exploitation of the invention or variety. Where public interest so requires, a compulsory license may be granted so that a third party may exploit the invention or the variety, subject to payment of an equitable remuneration to the right holder, without the latter’s authorization.

The above can be summarized as follows: intellectual property rights represent a balance between public interest and the private interests of a particular natural or legal person. The balance is established by each particular State or group of States on the basis of the social, economic and political circumstances prevailing on its territory, on the one hand, and the obligations that arise out of international treaties, voluntarily adhered to, on the other. All international treaties – including in particular the UPOV Convention and the TRIPS Agreement – provide for the required flexibility.

 

 

PART II: BASIC NOTIONS OF PATENT LAW

General

This part will be based on the patent laws of the African and European countries, which are substantially very similar. It is to be noted that the laws of the United States of America and a few other countries present some differences which are of importance in the practical operation and effects of the patent system.

Scope of Application

Patents are granted in respect of inventions. Discoveries, in particular, are not regarded as inventions.

In many countries of the world, and perhaps all of Africa, plant varieties and animal breeds, as such, are not patentable. This results from the practice of the patent office, case law or an express provision in the patent law, such as:

"May not be patented:
[...]
"(c) the invention whose object are plant varieties, animal breeds, essentially biological processes for the production of plants or animals, other than microbiological processes and products obtained by means of those processes"

(original and proposed revised text of the Bangui Agreement Establishing the African Intellectual Property Organization) or

"European patents shall not be granted in respect of:
[...]
"(b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof"

(Article 53(b) of the European Patent Convention).

Such provisions do not stand in the way of patents which deploy their effects on plants, including plants which represent a variety. Typical examples are the genetic engineering patents. The decisions of the Boards of Appeal of the European Patent Office have created uncertainty over this point. The Directive of the European Parliament and the Council of the European Union of July 6, 1998, on the Legal Protection of Biotechnological Inventions has settled the issue as follows for the European Union in its Preamble and Article 4:

"(31) Whereas a plant grouping which is characterized by a particular gene (and not its whole genome) is not covered by the protection of new varieties and is therefore not excluded from patentability even if it comprises new varieties of plants;

"(32) Whereas, however, if an invention consists only in genetically modifying a particular plant variety and if a new plant variety is bred, it will still be excluded from patentability even if the genetic modification is the result not of an essentially biological process but of a biotechnological process;"

and

"2. Inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety."

It should be emphasized here that the Directive has in no way extended the scope of application of the European patent laws (contrary to the widely spread out claims of some anti-IPR activists), and that the same solution (which is a very reasonable one) would obtain in many African countries.

Conditions for Protection

Substantive Conditions

There are three substantive conditions:

(a) The invention must be new, i.e. not anticipated by prior art. Prior art consists of everything disclosed to the public, anywhere in the world, by publication in tangible form or, in the country of application, by oral disclosure, by use or in any other way, prior to the filing of the patent application.

(b) The invention must involve an inventive step, i.e. it must not have been obvious to a person having ordinary skill in the art, having regard to the prior art relevant to the application at the time of the filing of the application.

(c) The invention must be industrially applicable, "industry" being understood in its broadest sense to include, in particular, agriculture.

The application of these criteria to inventions in the field of biology, and genetic engineering in particular, is not easy. When the first "modern" applications came along, the difficulties were compounded by lack of experience and misconceptions from both proponents of and opponents to (strong) patents. Things are settling, and the following principles should be highlighted:

(a) The identification of a gene existing in nature is not an invention, but a discovery.

(b) The gene, in its isolated form, can be an invention. A gene (or a DNA sequence) without indication of a function is not patentable for lack of industrial applicability. If prior art (and scientific knowledge) is such that the cloning and expression of a gene is fairly straightforward in theory – although requiring much work – there is no room for a patent. Inventive step may be acknowledged, however, if there was no reasonable expectation of success (or if it is proven that the expectation was ill-founded).

Formal Conditions

Among the formal conditions, three are important:

(a) The application must relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (unity of invention).

(b) The application must include a description of the invention (disclosure) that is sufficiently clear and complete for the invention to be evaluated, and to be carried out by a person having ordinary skill in the art.

(c) The application must include claims, i.e. a precise description of the invention which determines the scope of protection and thus informs the public and the court about the technological area that is reserved to the patent owner.

The descriptions are very detailed, incomparably more than the corresponding publications in the scientific press. On the one hand, they must be "enabling", as described above, for a person having ordinary skill in the art, i.e. a person whose sense of initiative is supposed to be quite limited; on the other, the applicant must convince the patent examiner that there indeed is an invention.

The drafting of the claims has to follow detailed rules. They must be supported by the description:

"2. As regards sufficiency, the disclosure in the specification must be sufficient to enable the whole width of the claimed invention to be performed and the disclosure of a single embodiment will not always satisfy the requirement regardless of the width of the claim.

"3. Where a patentee chooses to draw its claim widely, it must accept a corresponding obligation to make a similarly wide disclosure."

(Headnotes to the decision of the United Kingdom Court of Appeal, of October 27, 1994, in re Biogen Inc. v. Medeva PLC).

The claims must also follow a precise order, from general to specific. In this regard, the patent drafters provide for the risk of one or more claims being invalidated: the next "surviving" claim will then define the scope of protection. In the case of patents on genes, it is thus standard practice to first claim the gene and subsequently a plant containing the said gene. The "dependent claim," however, does not extend the scope of protection, but only characterizes it further.

Rights Granted

A patent confers on its owner a right to exclude others from (or to make their activities subject to an authorization),

(a) where the patent has been granted in respect of a product, making, importing, offering for sale, selling and using the product, and also stocking for such purposes;

(b) where the patent has been granted in respect of a process, using the process and doing any of the acts referred to in (a), above, in respect of a product obtained directly by means of the process.

This right is limited in two main ways:

(a) It does not extend to acts done for private and non-commercial purposes, or for purposes of scientific research;

(b) It is subject to exhaustion, that is, the patent holder cannot assert his right in respect of any act of exploitation of a product which has been lawfully put on the market.

In the case of patents in the field of biology, and genetic engineering in particular, there are still some uncertainties over the practical application of the experimental use exemption and the exhaustion principle. Summarizing to the extreme, it may be said, however, that the legislative and judicial powers of Europe – where most precedents are set for the most widespread form of the patent system – are very attentive to the balance between public and private interest. The European Directive may be mentioned here again with two examples:

(a) On the one hand, it has clarified that patent protection over biological material extends to subsequent generations of that material obtained through propagation or multiplication;

(b) On the other hand, it has introduced a "farmer’s privilege" identical with that applicable to plant variety protection.

The Effects

The patent system has two major positive effects:

(a) It has created and continues to build up an extraordinary technological database that is not only comprehensive, but also classified and easily accessible and searchable.

(b) It creates incentives for investments in research and development and, more generally, in industry sensu lato:

(i) The successful inventor has the opportunity to exploit his invention and recoup his investments free from the competition of those who have not made such investments and would, in the absence of the patent, take a free ride. Where he cannot exploit it himself or alone, he can organize the exploitation in an optimal way and choose his partners (licensees).

(ii) The creation of a protected technological area – coupled with the enabling disclosure of the invention – provides an incentive for others to either develop the invention further or produce an alternative to the invention ("to invent around").

(iii) The rules of the patent system require the inventor to rush to the patent office at a time when many technical and commercial aspects of the invention are still unknown. This is particularly the case with biotechnological inventions, the working of which may have been demonstrated on two or three examples. Important investments are thus necessary before the invention is incorporated in a marketable product. The patent creates security in that respect. "Classical" plant breeders taking up biotechnological inventions welcome the patent system on this score.

(iv) The publication of the invention finally ensures that investments in research and development are not made, or continued, in the solution of a problem that has already been solved.

The combination of disclosure, including the disclosure of the identity of the owner of the patent and the underlying technology, and protection of investments makes the patent into an invaluable tool for the transfer of technology.

Opponents to intellectual property rights generally claim that patents lead to "monopoly prices" that are much higher than the prices charged, for instance in the field of pharmaceuticals or agrochemicals, by the producers of generic products. The economic facts are not that simple:

(a) Whereas the patent holder enjoys a privileged position on the market, he is also under the threat of the compulsory licensing provisions of the patent laws and more generally of the competition or anti-trust laws.

(b) The producers of generics have not taken any risk in terms of investments in research, development and marketing, and have made minimum investments in respect of human, animal and plant health regulations.

(c) The commercial decisions are controlled by many factors, one of which being the acceptance of the product by the consumer, at the price and conditions offered by the producer. There are in fact many examples of patents leading to price or cost decreases. Genetically modified varieties and, more generally, improved varieties are a case in point: to be accepted by the farmer, they must offer him a (substantial) advantage.

It remains that the patent is an instrument in the hands of commercial actors that may be used in ways that are open to criticism. A patent application may for instance be filed and published solely to mislead a competitor. The drawbacks are known, but are not fundamentally different from those of other instruments used in commercial strategies (or even scientific ones). Those drawbacks are in fact the expression of the way in which the economy functions, rather than drawbacks of the patent system itself.

 

 

PART III: PLANT VARIETY PROTECTION

GENERAL – THE UPOV CONVENTION AND UPOV

The patent system is not adapted to the protection for new varieties of plants, as such. After decades of attempts to nevertheless obtain patent protection for their achievements, plant breeders, together with a segment of the intellectual property specialists, requested that consideration be given to a specially designed protection system. The request was taken up by the French Government, which hosted between 1957 and 1961 the Conferences and meetings which led to the signing, on December 2, 1961, of the International Convention for the Protection of New Varieties of Plants, the UPOV Convention.

The Convention entered into force on August 10, 1968. It was revised on November 10, 1972, in respect of some administrative provisions, on October 23, 1978, in respect of all provisions (but with only minor substantive modifications) and again on March 19, 1991. The latter revision, thirty year after the initial adoption, was substantial; the reasons for the changes were:

(a) to clarify certain provisions in the light of the experience of the UPOV member States in operating the Convention since 1961;

(b) to strengthen the protection offered to the breeder in certain specific ways;

(c) to reflect technological changes.

UPOV currently has thirty-eight member States:

(a) On the basis of the 1961/1972 Act: Belgium, Spain;

(b) On the basis of the 1978 Act (the States marked with an asterisk have a law that conforms entirely or substantially with the 1991 Act): Argentina, Australia*, Austria, Canada, Czech Republic, Chile, Colombia*, Ecuador*, Finland, France, Hungary, Ireland, Italy, Japan*, Mexico, New Zealand, Norway, Paraguay, Poland*, Portugal, Slovakia*, South Africa*, Switzerland, Trinidad and Tobago, Ukraine, United Kingdom*, United States of America*, Uruguay.

(c) On the basis of the 1991 Act: Bulgaria, Denmark, Germany, Israel, Netherlands, Republic of Moldova, Russian Federation, Sweden.

The following States – and the European Community – have initiated the procedure for becoming members:

Belarus, Bolivia, Brazil, China, Croatia, Estonia, Kenya, Kyrgystan, Morocco, Nicaragua, Panama, Venezuela, Zimbabwe.

The procedure includes a request to the Council of UPOV to advise the country in respect of the conformity of its laws with the provisions of the Act which the State wishes to adhere to. Only when the decision embodying the advice is positive can the instrument be deposited.

There is considerable interest in plant variety protection and in membership in UPOV from a great number of African States. The most noteworthy is perhaps the plan of the African Intellectual Property Organization (AIPO) to create a supranational protection system for 16 States (Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d’Ivoire, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, Togo and -in the process of accession- Djibouti) and to adhere to UPOV.

To ensure success – in particular in view of the controversies generated by the protection of new plant varieties by patents – the Conferences had been limited to western-European countries. The drawback of that approach has been a slow growth of the Union. The circumstances surrounding the establishment of the Convention and the subsequent evolution also led to the creation of a separate intergovernmental organization, the International Union for the Protection of New Varieties of Plants (UPOV), which maintains close cooperation with the World Intellectual Property Organization (WIPO).

The 1961 Act had left the status of the new Union open, and specified that the terms of the administrative and technical cooperation between UPOV and WIPO’s predecessor, BIRPI, would be set out in a document established by the Swiss Government, as the supervisory authority of both organizations. UPOV was then given full legal personality and capacity at the 1978 revision.

The cooperation continues. The WIPO Director General, Dr. Kamil Idris (Sudan), is at the same time the Secretary-General of UPOV. UPOV’s offices are located in the WIPO building, and UPOV draws upon the support services of WIPO. The Office is thus quite small; its staff includes four professionals and five secretaries and clerical staff.

The UPOV Convention is the only model for a plant variety protection system (the "alternatives" which have been proposed recently in some quarters are either no true alternatives – for instance they are not an intellectual property system – or are modeled after systems which were introduced in Europe in the first part of the century, but have demonstrated their lack of effectiveness). The explanations below are essentially based on the 1991 Act of the UPOV Convention.

The UPOV Convention is not only an intellectual property treaty, but also an instrument in the field of agricultural policies. This is reflected as follows in the Preamble to the 1961 and 1978 Acts of the Convention:

"Convinced of the importance attaching to the protection of new varieties of plants not only for the development of agriculture but also for safeguarding the interests of breeders."

 

PERSONS ENTITLED TO PROTECTION

The Persons

Protection is granted to the breeder of a new variety or to the successor in title of the breeder.

The definition of the breeder in Article 1(iv) of the 1991 Act of the UPOV Convention gives a general indication for the case where the variety has resulted from the work carried out by a person in the course of employment or contractual services: the solution basically is left to national law.

The definition also indicates that the rights deriving from the creation of a variety may be transferred by assignment or succession, at all stages (before the application is made, during the processing of the application, or after the granting of the breeder’s right).

The Notion of "Breeding"

The breeder is defined in the 1991 Act of the UPOV Convention as the "person who bred, or discovered and developed, a variety." Protection has thus to be afforded not only where a variety has originated from "breeding" in the somewhat restricted sense of crossing parent plants and selecting from within the progeny, but also where a person identifies a mutation or a variation, of known or unknown origin, in existing plant material and ensures that the mutation or variation is isolated and propagated as a new variety. The following is to be underlined:

(a) Mere "discovery" is not sufficient: the breeder must also have "developed" his variety in order to secure protection.

(b) "Discoveries" are a very important source of varieties (particularly in the case of fruit crops) and the plant variety protection system would not fulfill its purpose in a satisfactory way if it were to exclude them from its scope (in actual fact, their exclusion might act as a disincentive to the search for and exploitation of mutations and variations).

(c) Since the plant variety protection system is concerned with cultivated plants, "discoveries" in the wild – e.g. in the rain forests – do not play any significant role. In some instances, however, people "domesticate" wild species, in particular as ornamental plants, forage crops or producers of chemical compounds; this requires considerable work to establish the growing conditions, and also heavy breeding work.

(d) Selection within an existing variety or landrace is also a form of "breeding" that may lead to a variety qualifying for protection. UPOV circles are very conscious of the fact that there is a borderline to be drawn in this respect: an activity which is more akin to maintenance breeding does not lead to a protectable variety, as explained below.

THE CONDITIONS OF PROTECTION

The "Variety" and the "Protectable Variety"

The UPOV Convention has been very successful in impressing upon the plant varieties and seed sector, in particular in the UPOV member States, a notion of variety (synonym: cultivar) that, from the technical point of view, is identical with "protectable variety." But such an amalgamation is not warranted. It was thus felt necessary to highlight the distinction in the Convention. According to Article 1(vi) of the 1991 Act of the UPOV Convention, a "variety" basically is a plant grouping which meets the conditions of distinctness, uniformity and stability, but not necessarily to the degree required for protection.

A particular instance where the definition is material is the examination of a variety for distinctness: when comparing it to other varieties, one would have to include into the comparison material that is not sufficiently uniform for protection purposes, but still uniform enough to be identified as a separate class of material for cultivation purposes (a "variety"). A fairly homogeneous landrace that is made homogenous to the degree required for protection would not be protectable.

The Conditions of Protection in Detail

The Required Conditions

There are five conditions:

(a) Novelty.– The variety to be protected must not have been the subject of commercial acts before certain dates determined on the basis of the date of application. Under the 1991 Act of the UPOV Convention, the relevant provision is as follows (Article 6):

"(1) [Criteria] 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;

(i) in the territory of the Contracting Party in which the application has been filed earlier than one year before that date; and

(ii) in a territory other than that of the Contracting Party in which the application has been filed earlier than four years or, in the case of trees or of vines, earlier than six years before the said date."

It is to be noted that a disclosure of the variety, for instance its description in a publication, does not prejudice the novelty of the variety; the reason is that such a disclosure is not "enabling," i.e. does not make the variety available to the public. Furthermore, it is widely admitted that the breeder may also undertake some pre-commercial activities, such as the bulking-up of a seed stock, without detriment to novelty.

(b) Distinctness.– The applicable provision is as follows (Article 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 the filing of the application. In particular, the filing of an application for the granting of a breeder’s right or for the entering of another variety in an official register of varieties, in any country, shall be deemed to render that other variety a matter of common knowledge from the date of the application, provided that the application leads to the granting of a breeder’s right or to the entering of the said other variety in the official register of varieties, as the case may be."

Distinctness is established on the basis of individual characteristics (descriptors in genetic resources parlance) which are botanical in nature and are not necessarily related to the agricultural or technological properties or value of the variety. In the case of qualitative characteristics, there must be a difference in the states of expression (e.g. green seed for one pea variety, yellow seed for the other); in the case of quantitative characteristics, the difference must be established statistically in a test using small plots (in the case of pea, for instance, the observations and measurements are to be made on 20 plants according to the UPOV Test Guidelines).

(c) Uniformity (or homogeneity).– The applicable provision is as follows (Article 8):

"The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics."

(d) Stability.– The applicable provision is as follows (Article 9):

"The variety shall be deemed to be stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle."

(e) Variety denomination.– The variety must be given a denomination under which it will be commercialized.

Uniformity (or homogeneity) is an area that is prone to misconceptions. The basic rules are established by UPOV for: vegetatively propagated varieties and truly self-pollinated varieties, for mainly self-pollinated varieties (the tolerance is the double of the one for the previous category), for cross-pollinated varieties including synthetic varieties (the tolerance is relative and based on the homogeneity of existing comparable varieties) and for hybrid varieties (the tolerances take account of the genetic constitution of the variety concerned). UPOV’s main concern is that the variation shown by a variety, depending on the breeding system of that variety and off-types due to occasional mixture, mutations or other causes, is as limited as necessary to permit accurate description of the variety, to permit accurate assessment of distinctness and to ensure stability. This concern is shared with other legal systems, in particular variety listing and seed certification. It is in fact common to many actors of the plant variety and seed sector, including farmers who need to know exactly what they grow. The UPOV criteria are, therefore, not fundamentally different from those applied in the other contexts.

It should in fact come as a surprise to many that UPOV is more lenient than many seed certification systems, including the FAO quality-declared seed system. In truly self-pollinated crops such as wheat, rice, French bean or peanut, for example, UPOV tolerates three off-types in 100 plants (basically grown from the very foundation stock), whereas many countries require 98% of even 99% varietal purity in certified seed.

The Prohibited Conditions

The UPOV Convention does not allow, beyond the formalities and the payment of fees, further or different conditions. In particular, two conditions are not allowed:

(a) Value for cultivation and use.– This cannot be a condition relevant to plant variety protection, i.e. the recognition of a property right. Such a right is generally recognized whatever the value of the good concerned. The VCU condition is, however, foreseen in the variety listing or registration systems, at least for some crops. Experience shows that breeders may find an interest in protection despite the fact that their variety has not been entered into the national list and may therefore not be marketed.

(b) Marketing authorization under legislation for the protection of human, animal or plant health or of the environment.– The same considerations as those above apply. In addition, it should be noted that the two legislations are very different in nature: protection is optional for the breeder and is a matter of private law; marketing authorization is mandatory (where relevant, for instance in the case of certain genetically modified varieties) and is a matter of public law.

THE SCOPE OF PROTECTION

The Scope of Protection Under the 1978 Act of the UPOV Convention

The Right Granted to the Breeder

The 1978 Act of the UPOV Convention – like the 1991 Act – sets out a minimum scope of protection. The right which States parties to the 1978 Act are required to recognize to the breeder of a new plant variety has the effect that his authorization is required for:

(a) the production for purposes of commercial marketing of the propagating material, as such, of the variety (typically the production of certified seed);

(b) the offering for sale of the propagating material;

(c) the marketing of such material;

(d) the repeated use of the variety for the commercial production of another variety (typically a hybrid variety); and

(e) the commercial use of ornamental plants or parts thereof as propagating material in the production of ornamental plants or cut flowers.

The Limitations

The "breeder’s exemption". – It follows from the above – and the 1978 Act of the UPOV Convention expressly states the fact – that the use of a new variety as the initial source of variation for creating other new varieties and marketing them is free (that is, it does not require the breeder’s authorization). Accordingly, protection under the 1978 Act does not give the plant breeder any rights in the genes, the underlying genetic resource, which are contained in his variety. This corresponds to the "breeder’s exemption" and is the most fundamental feature of the special (or "sui generis" to use an expression popularized by the TRIPS Agreement) protection system.

The breeder’s exemption acknowledges the fact that each generation of breeding achievements is essentially based on the preceding one; the breeder of a protected variety, having been able to freely use the material of his predecessors, has to accept – and actually does it quite happily – that his material may be freely used by his successors.

The "farmer’s privilege". – It also follows from the description of the basic right that the breeder’s authorization is not required for the production of propagating material that is not for commercial marketing, in particular farm-saved seed (seed produced by a farmer on his own farm and used in the following season, again on his farm). This corresponds to the "farmer’s privilege." It is to be underlined that this privilege is implicit, and by no means mandatory. It does not exist for ornamental plants. It has not been provided (or has been eliminated) by a number of countries for fruit crops. It has not been provided at all in the French law or the former South African law.

Exhaustion. – Protection could be extended under the 1978 Act beyond the propagating material stage, in particular to the harvested material. Such extension has been provided by France, for example, in respect of ornamental plants since 1970 and all plants since January 1996. However, although not explicitly spelled out, the exhaustion principle applies.

The Scope of Protection Under the 1991 Act of the UPOV Convention

General

Experience has shown that the minimum scope of protection under the 1978 Act of the UPOV Convention was deficient in several respects, to the detriment of not only the breeder but also his partners in the exploitation chain. A completely new approach was thus taken in the 1991 Act in defining the scope of the breeder’s right. The fundamental objective has been to make the right granted to the breeder – and thus the Convention – more effective.

Basically, the 1991 Act specifies, first, a broad scope and, then, mandatory or optional restrictions and limitations.

The Basic Right

The basic right now pertains to seven acts:

1. production or reproduction (multiplication);
2. conditioning for the purpose of propagation;
3. offering for sale;
4. selling or other marketing;
5. exporting;
6. importing; and
7. stocking for any of these purposes.

The purpose of this more detailed enumeration is not so much to give a more extensive right to the breeder, than to give him a more effective one. Conditioning, for instance, is essentially one (technical) step of seed or plant production.

The right applies to two classes of material to which such acts must relate and one class to which they may relate:

(a) the propagating material;

(b) the harvested material (including whole plants and parts of plants), provided this has been obtained through the unauthorized use of propagating material and that the breeder has had no reasonable opportunity to exercise his right in relation to the propagating material;

(c) optionally (at the discretion of the member State), products made directly from harvested material, provided this has been obtained through the unauthorized use of harvested material and that the breeder has had no reasonable opportunity to exercise his right in relation to the harvested material.

In the case under (b), for instance, the breeder gets a more extensive right in relation to certain imported harvested material. Where harvested material has been produced with illegal seed, he now has another opportunity to exercise his right.

Furthermore, the 1991 Act specifies four subject matters to which the breeder’s right extends. They are:

1. the protected variety itself;
2. varieties which are not clearly distinguishable from the protected variety;
3. varieties which are essentially derived from the protected variety; and
4. varieties whose production requires the repeated use of the protected variety.

The addition of varieties that are not clearly distinguishable is designed to make the breeder’s right more effective; to prevent an infringer from claiming that he was not exploiting the protected variety, but a very similar one falling outside the "protection perimeter". The addition of essentially derived varieties is explained below.

The Exceptions

The 1991 Act establishes three compulsory exceptions to the breeder’s right and one optional exception. The three compulsory exceptions are:

(a) acts done privately and for non-commercial purposes (in particular the reproduction of a protected variety by a subsistence farmer or by an amateur gardener);

(b) acts done for experimental purposes; and

(c) acts done for the purpose of breeding other varieties, and (provided protection has not been specifically extended to them, as for instance in the case of an essentially derived variety) for the purpose of exploiting such other varieties.

It is to be noted that the "breeder’s exemption" – the free availability of the underlying genetic resource embodied in a protected plant variety for the purpose of breeding is reaffirmed in the 1991 Act of the UPOV Convention.

The optional exception relates to farm-saved seed. States which are party to the 1991 Act of the UPOV Convention may except farm-saved seed from the breeder’s right, within reasonable limits and subject to safeguarding the legitimate interests of the breeder. Each member State will exercise this option in the light of its own national conditions. Some States have chosen to give farmers an unconditional right to replant seed from their previous harvest while others have limited this right to certain crops or to small farmers.

A number of developing countries – on this continent Morocco and the OAPI member States – have provided for or are contemplating a farmer’s privilege that does apply to all crops, except fruit, forest and ornamental plants.

Essentially Derived Varieties

Under the 1978 Act of the UPOV Convention, any protected variety may be freely used as a source of initial variation to develop further varieties and any such variety may itself be protected and, what is more important, exploited without any obligation on the part of its breeder and users towards the breeder of the variety which was used as a source of initial variation. These rules have with certain exceptions worked well in practice and have been reaffirmed in the 1991 Act.

However, the rules did not prevent a person finding a mutation within a plant variety (such mutations are quite frequent in some species), or selecting some other minor variant from within a variety, from exploiting the mutant or variant with no authorization from, or recognition of the contribution of, the original breeder to the final result. The lack of recognition of that contribution in such circumstances was generally considered to be improper. Modern biotechnology has greatly increased the likelihood of such situations; it may take 15 years to develop a new variety but a mere three months to modify it by adding a gene in the laboratory.

This situation indeed can be a disincentive to the continued pursuit of "classical" plant breeding (and also of genetic engineering since it suffices to add yet another gene to escape the protection of the variety taken as host for that gene). The concept of essentially derived variety embodied in Article 14(5) of the 1991 Act of the UPOV Convention is designed to ensure that the Convention continues to provide an adequate incentive for plant breeding. Under that Article, a variety which is essentially derived from a protected variety may be the subject of protection (if it fulfills the normal protection criteria of novelty, distinctness, uniformity and stability), but cannot be exploited without the authorization of the breeder of the protected variety.

For practical purposes, varieties will only be essentially derived when they are developed in such a way that they retain virtually the whole genetic structure of the earlier variety. Any protected variety may, even under the 1991 Act of the UPOV Convention, be freely used as a source of initial variation and only if a resulting variety falls within the narrowly defined concept of essential derivation is the authorization of the breeder of the protected variety required.

Right to the Protection of the Denomination

The UPOV Convention requires that the variety that is the subject of an application for protection be given a "denomination" which will be the generic designation of the variety.

The denomination of a variety registered in one of the member States of UPOV may not be used, in any member State, as the denomination of another variety of the same or a closely related botanical species. Any person who offers for sale or markets propagating material of a protected variety is required to use the denomination in connection with such offering for sale or marketing, and to do so even after protection has expired. A trademark, trade name or similar indication may, however, be associated with the variety denomination.

The provisions of the Convention are thus a powerful tool for the organization and moralization of the market. In addition, States which have carefully drafted their legislation with respect to the sanction of the inappropriate use of variety denominations, or the failure to use them when obligated to do so, have provided the breeder with additional, efficient tools for the enforcement of their rights.

THE NEED FOR PLANT VARIETY PROTECTION

The creation of a new plant variety requires a substantial investment in terms of skill, labor, material resources, and money.

There is no need to dwell into this in a meeting concerned with seed policy and programmes. Suffice it to say that the art of plant breeding is not only about applying successfully the available techniques on the available plant material used as a genetic resource, but also about anticipating the needs of the market (of agriculture and the agriculture-based industries) that will exist some 10, 15 or 20 years after the initial stage of the breeding program. There are not many human activities that require such a degree of anticipation.

New plant varieties are an essential tool for the sustainable development of agriculture and the achievement of a country’s food security.

Classically, the power of plant breeding is illustrated by the increases in yields, the improvement of quality, and the better adaptation of the plant material to the growing conditions, which is itself illustrated by the resistances to pests and diseases. Provided that the plant is flexible, the breeder is able to respond to very different exigencies and meet real challenges. The broad research avenues are, all over the world: improvement of the yield potential and dependability; adaptation to special agroclimatical conditions; improvement of quality, including adaptation to the requirements of the successive operators along the agroindustrial chain (from the producer to the consumer); incorporation of resistances to pests and diseases (and more recently to total herbicides).

One should add that better varieties, while often requiring better crop husbandry practices to express their higher yield potential, maximize the investment made by the farmer in particular as regards his own labor and the application of fertilizers and chemical treatments.

In addition, the cost of a new variety to the farmer usually is minimal. In agricultural systems based upon an assortment of varieties that is constantly renewed, the new variety is available on the market at a cost which is broadly similar to the cost of the varieties from the previous generation (the marginal cost thus is nil). The experience of Argentina shows that the advent of protected varieties did not increase the price of the seed: breeders and seed producers, to remain competitive on the seed market with unprotected varieties, rationalized the production of and trade with their seed, and the royalty was taken from the savings.

The price of the seed is sometimes boosted, in particular when hybrid varieties are produced and are competing with traditional population or pure line varieties. The hybrid seed is of course much more expensive to produce. The experience shows that producers are quite willing to accept the extra cost, simply because the advantages derived from the hybrid varieties are by far higher than their cost; if the advantage is not big enough, the variety will have no success.

There is thus every reason, from the political point of view to ensure that plant breeding is given the attention it deserves; and, as shown above, it deserves a lot.

Many countries have given that attention by promoting a strong public research, which has been quite successful. But experience shows that this is not enough: the State cannot care for every crop, every agro-climatic zone, etc., and can do so even less in times of shrinking public resources. In addition, the articulation between research and development, between public plant breeding and private-sector seed production, is frequently deficient.

The recognition of these difficulties is one of the main reasons for this Meeting organized by FAO. It is also one of the main reasons for the interest shown by many developing countries in plant variety protection and UPOV: plant variety protection (and membership in UPOV) is an indispensable element of the new seed policies that give a more important role to the private sector.

THE EFFECTS OF PLANT VARIETY PROTECTION

The Exercise of the Breeder’s Right

However its precise definition may be, the right granted to the breeder affords him a right to:

(a) perceive a remuneration (royalty) in respect of every cycle of exploitation of the protected variety (and certain other varieties); and

(b) organize, at least to some extent, the exploitation of the variety in such a way that every one in the chain draws a profit.

The extent to which the breeder can do this depends, however, to a large degree on the breadth of the "farmer’s privilege." If too broad (as in the case of the old Plant Variety Protection Act of the United States of America), the privilege may make plant breeding altogether uninteresting; farmers, and consumers will then be deprived of the advantages of genetic progress.

The way in which the breeder chooses to exercise his right depends upon many factors, and the scope of the protection conferred to him is only one of them. In the case of cereals and other crops with bulky seed, he will – under both the 1978 Act and the 1991 Act – seek to organize the production of commercial (certified) seed in a fairly loose way and seek to collect a royalty at each multiplication stage (to spread the risks); he will apply a very open license policy. On the other end of the scale, the breeder of an ornamental plant will seek to organize the production and sale of cut flowers, and not just propagating material. This is also to the advantage of the producer.

It is in the light of this that one must consider the effects of plant variety protection. Economic theories and constructions based upon the notion of "monopoly" are totally inappropriate in the case of plant varieties:

(a) The breeder is bound to associate others – in effect partners – to the exploitation of his variety; the success of a particular variety – and of the commercial strategy of its breeder – is the result of many individual decisions.

(b) The breeder of a protected variety is almost always bound to compete with other breeders and their varieties.

Another relevant factor is the existence and scope of a "farmer’s privilege" (the need to make commercial seed competitive with farm-saved seed).

The Direct Effect: Promotion of Plant Breeding

All States which have become a member of UPOV and whose agricultural sector is of a size that justifies investments in plant breeding have reported increases in the volume of plant breeding activities, with direct effects on their agriculture. The others have reported increases in the assortment of varieties made available by foreign breeders. Here are some typical indicators:

(a) Before the advent of the European Community plant variety rights system, The Netherlands received some 1,500 applications and granted some 1,100 breeders rights per year, France and Germany received some 1,100 applications and granted some 800 rights, and the United Kingdom received some 600 applications and granted some 400 rights.

(b) In the case of important crops, several dozens of varieties may be available to the farmer or grower at any time. In Germany, for instance, there were 86 bread wheat, 96 barley, 33 oat, 31 rye and 10 triticale varieties on the national list as at April 1, 1997.

(c) The countries which have the longest tradition in protecting the breeders’ interests either through plant variety protection legislation (The Netherlands, Germany) or through a code of conduct, largely based on seed legislation, accepted by seed producers (France) are those which have the strongest breeding industries. They have also been able to maintain small and medium-size breeding enterprises, whereas a country like the United Kingdom has seen the development of a strong breeding industry following upon the enactment of the Plant Varieties and Seeds Act, in 1963.

(d) By way of anecdote, a rose breeder decided some years ago to emigrate from Northern Ireland. He chose to settle in New Zealand, in part because of the existence of a plant variety protection system there.

The Derived Benefits

In the Field of Plant Breeding

Maintenance breeding. – The plant variety protection system is not only there to encourage (creative) plant breeding activities.

The full benefit of the creation of a new and improved variety can only be drawn if, first of all, the variety is properly maintained and, secondly, if authentic propagating material of the variety is made available to users.

The plant variety protection system ensures that the breeder has a lasting interest in ensuring these activities (at least as long as the variety is commercially successful).

Genetic diversity. – The increased number of breeding programs which enter into competition implies a diversification of the programs, with a resulting increased probability of obtaining superior and genetically diverse varieties. This is a strong counterbalance to the trend for uniformity that may be generated by the market demand in products.

Breeders know that their raw material includes the obsolete varieties which are being displaced by their own products. They thus have an interest in maintaining those varieties in their collections.

The essence of the plant breeding activity can thus be described as follows:

(a) The breeder creates uniformity for use in single fields (to allow rational and efficient production), and diversity for use across fields; and

(b) The breeder contributes to the widespread use of a relatively narrow, but improved, genepool (to maximize agricultural production), and to the preservation of the large genepool that serves as a genetic reservoir for further progress.

At the same time, the breeder contributes to lessening the pressure on the natural ecosystems.

Public research. – Plant variety protection also benefits public breeding. Public institutions use the system to generate income and optimize the exploitation of their varieties. The income can be used as an argument to resist cutbacks in their programs.

Public research can also devote attention to other areas, and organize optimal distribution of the tasks between the various partners (the systems adopted in the various countries range from the sharing of the tasks in an organized manner to full competition between public and private breeding).

In the Field of Agricultural Production and Trade

Seed trade. – Plant breeders draw their revenue, at least in the case of the major crops, from the trade in seeds and plant material; they organize and moralize it, by choosing serious partners and driving less serious people out of the market. In many countries, breeders have created licensing societies, so that seed production is also organized on a fairly uniform basis across varieties and species.

Breeders also contribute to the improvement of the seed production and distribution infrastructure. That infrastructure, in many countries with an old breeding tradition, is able to cope with poor-quality harvests and to respond to brutal changes in demand (for instance after a crop failure at the early stages).

Primary Users. – The farmer does not just receive a genetic potential in a high quality seed. In the highly competitive markets, breeders also offer fringe benefits, for example in the form of crop insurances; they undertake extension activities, in particular comparative trials, and provide detailed technical information on crop management.

In the case of the specialized crops, when the breeder can also control in some measure the final product, producers under license can claim from the breeder that he guarantees the peaceful enjoyment of the license, that is to say, he can make claims for a secure production and marketing operation – of course within the limits set by the agro-economic vagaries.

International trade. – This aspect becomes even more important with the extension of international trade and the reinforcement of intellectual property rights, in particular under the 1991 Act: a producer of, say, tropical fruit may be refused access to the consumer market on the basis of the breeder’s right granted in the country concerned; conversely, the producer operating on the basis of a license concluded under the breeder’s right valid in the production country will secure, in the license agreement, the right to enter the consumer market.

In other words, plant variety production will play a role in the South-South competition.

In the Field of Transfer of Technology and Know-how

Plant variety protection plays an essential role in the introduction of foreign varieties (and the associated technology) which enrich the assortment available to the farmer and contribute to the improvement of agricultural production, both in permitting such introduction and in speeding it up.

Foreign breeders also take a more direct interest in breeding activities in the country, in particular since breeding in the environment in which the resulting varieties are to be used is more effective. This is done both through the creations of subsidiaries and through partnership agreements. In both cases there is a flow of technology and know-how, in both directions (subsidiaries having to rely on the local seed trade).

 

PART IV: PLANT VARIETY PROTECTION AND OTHER LEGAL SYSTEMS

The TRIPS Agreement

The Agreement Establishing the World Trade Organization, adopted in Marrakech on April 15, 1994, includes as an annex the Agreement on Trade-Related Aspects of Intellectual Property Rights – the TRIPS Agreement.

The purpose and objective of the WTO Agreement, to which 40 African countries are party, is described in its Preamble:

"Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development,

"Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development,

"Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to elimination of discriminatory treatment in international trade relations, [...]"

As for the TRIPS Agreement, the following basic statements are of particular importance:

"Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

"[...]

"Recognizing that intellectual property rights are private rights;

"Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;

"Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base."

Article 27.3 provides for an obligation to protect plant varieties which became effective for developed countries on January 1, 1996, and will become effective for developing countries on January 1, 2000 (January 1, 2006 for least-developed countries):

 

"3. Members may also exclude from patentability:

[...]

(b) 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. 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. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement."

It is clear that WTO members will enforce this obligation through the adoption of a sui generis protection system.

At the fourth extraordinary session of the FAO Commission on Genetic Resources for Food and Agriculture (Rome, December 1 to 5, 1997), the FAO Legal Adviser commented as follows:

"In fact, the concept of a sui generis system in the TRIPS Agreement is a very general concept that allows States to exercise ample discretion. The TRIPS Agreement does not give any direct indication on the elements or components that should be included in the sui generis system; nor does it require to follow the criteria of UPOV, which is already a sui generis system of plant variety protection although not the only possible one. Nevertheless, it is possible to infer, from the general context of the TRIPS Agreement, some of the minimum requirements of the sui generis system, namely: (i) it should be, at least in the broad sense, a system to protect intellectual property rights; (ii) it should be applicable, in principle, to all traded plant varieties; (iii) it should be effective, that is, enforceable; (iv) it should be non-discriminatory as regards the country of origin of the applicant (principle of national treatment); and (v) it should accord the most-favored-nation treatment."

There is a need to go a step further: whilst the TRIPS Agreement leaves ample discretion to the WTO members in theory, there is in practice a strong commitment, on the part of those members, to abide by established legal systems. Any new plant variety protection system that would be out of line, compared with the UPOV system, and would create "distortions and impediments to international trade" (see Preamble to the TRIPS Agreement) is likely to attract criticism, if not retaliatory measures. On the other hand, the UPOV Convention – including the 1991 Act – offers enough discretion to States so that they can design their national protection system to fit national circumstances.

The TRIPS Agreement does not entail any obligation to become a member of UPOV. There are, however, objective reasons to join the Union, in particular in terms of:

(a) credibility – and practical effectiveness – of the national protection system,

(b) ability to share in and benefit from the combined experience of member States,

and

(c) ability to contribute to the worldwide promotion of plant breeding and to the evolution of the plant variety protection system.

The (FAO) International Undertaking on Plant Genetic Resources

The Undertaking was adopted by the FAO Conference in 1983. It is based on the principle that "plant genetic resources are a common heritage of mankind to be preserved, and to be freely available for use, for the benefit of present and future generations". Its main thrust is thus similar to that enshrined in the "breeder’s exemption" under the UPOV Convention:

"Considering that:

"(a) the international community should adopt a concrete set of principles to promote the exploration, preservation, documentation, availability and full use of relevant plant genetic resources essential to agricultural development;

[...]

(c) progress in plant breeding is essential to the present and future development of agriculture [...]"

Article 5 of the Undertaking (Availability of Plant Genetic Resources) provides as follows:

"It will be the policy of adhering Governments and institutions having plant genetic resources under their control to allow access to samples of such resources, and to permit their export, where the resources have been requested for the purposes of scientific research, plant breeding or genetic resources conservation. The samples should be made available free of charge, on the basis of mutual exchange, or on mutually agreed terms."

Early debates have pressed for the recognition of an inherent conflict between the aims and objectives of the UPOV Convention and those of the FAO Undertaking. That this was not the case was clarified in Resolution 4/89 adopted by the FAO Conference in 1989, which also adopted a Resolution (5/89) on "Farmers’ Rights," which were to be viewed as the counterpart for plant breeders’ rights and were to be:

(a) rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources; and

(b) rights vested in the International Community and to be realized through an International Fund for Plant Genetic Resources.

In the meantime, efforts have been made to transform farmers’ rights into benefits accruing directly to farmers or their communities, or even into intellectual property rights. Nobody has been able so far to establish a comprehensive and workable system.

The Undertaking is being revised, in particular with a view to adapting it "in harmony with the Convention on Biological Diversity". This is not the place for a detailed analysis of the process. Suffice it to emphasize two points:

(a) With respect to the material background to the revision work, the FAO has produced a series of excellent studies, in particular in connection with the Leipzig Conference. Their thrust is that the policy advocated and practised for many years (even before the advent of the Undertaking) in the field of genetic resources is sound and should be pursued.

(b) With respect to the relations between farmers and breeders, plant variety protection should not be viewed solely as a system conferring a right to the breeder – the right to draw an economic benefit from the genetic resources which he uses, transforms and creates; protection is also, and much more, a system that enables him to create even greater benefits to the farmers who are his clients.

The Convention on Biological Diversity (CBD)

The CBD is based on a new set of principles:

"Affirming that the conservation of biological diversity is a common concern of humankind,

"Reaffirming that States have sovereign rights over their own biological resources,

"Reaffirming also that States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner, [...]"

The CBD has accordingly the following objectives:

"The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding."

The CBD must be viewed as a framework Convention that needs implementing measures. The analysis of the true scope of the obligations under the CBD is very difficult for its text is cluttered with limitations such as "as far as possible and as appropriate" and "subject to national legislation".

It is nevertheless clear that there is no contradiction or conflict between the UPOV Convention and the FAO Undertaking, on the one hand, and the CBD on the other. The measures that may be taken to implement the CBD, however, may create such a contradiction or conflict if they do not properly consider the prior legal instruments (and their objective background and rationale), and may even run counter to the CBD’s stated objectives.

In particular, respect for intellectual property rights is expressly called for under Article 16(2), relating to access to and transfer of technology:

"Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and/or facilitated under fair and most favorable terms, including on concessional and preferential terms where mutually agreed, and, where necessary, in accordance with the financial mechanism established by Articles 20 and 21. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below."

With respect to the "fair and equitable sharing of the benefits arising out of the utilization of genetic resources," it should also be obvious that it implies, firstly, the creation of benefits and, secondly, the identification of a person who would be called upon to share the benefits which he and his partners have created. All agreements which have been publicized so far – and follow the pattern created by the Merck-INBio agreement – include as a major component, the sharing of royalties derived from patents.

Thus, effective intellectual property protection is not only in harmony with the CBD, but also indispensable to the achievement of its goals.

CONCLUSIONS

The demands of the farmers in Sub-Saharan Africa are basically no different from the demands of farmers in other parts of the world. In a nutshell, the issue is: "improvement of their lot."

A key answer to this demand is the improvement of agricultural productivity. In this respect, the work of FAO – which has tended to put emphasis in the technical quality of the seed – and the work of UPOV – whose mandate concerns the genetic quality of the seed – are perfectly complementary.

At the close of a seminar organized by UPOV in cooperation with the Government of Burkina Faso, in Ouagadougou in December 1997, the participants declared their conviction that:

(a) plant variety protection is a powerful tool for the improvement of the seed sector and for agricultural development in OAPI member States; and

(b) conversely, an efficient seed sector forms the basis for an effective protection system.

The conclusion of this Meeting could be the same, but for the whole of Sub-Saharan Africa.