FAO LEGISLATIVE STUDY 85

FAO LEGISLATIVE STUDY 85

Intellectual property rights in plant varieties
International legal regimes and policy options for national governments

Laurence R. Helfer

for the
Development Law Service
FAO Legal Office


FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS
Rome, 2004

 

Table of Contents


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ISBN 92-5-105222-0
ISSN 1014-6679

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© FAO 2004


CONTENTS

PREFACE

1. PART I: LEGAL AND POLICY CONCEPTS RELATING TO THE PROTECTION OF PLANT VARIETIES AND PLANT BREEDERS’ RIGHTS

1.1. Intellectual property rights: philosophical and policy underpinnings
1.2. Policy objectives favouring IPRs in new plant varieties
1.3. The evolution and structure of the international intellectual property system

1.3.1. Limited treaty obligations
1.3.2. The territoriality of IPRs
1.3.3. Core obligations imposed by international intellectual property agreements
1.3.4. The "minimum standards" framework of multilateral IPR agreements
1.3.5. Identifying the relevant international agreements and institutions relating to intellectual property rights in plant varieties.
1.3.6. Specific policy objectives in tension with IPRs

2. PART II: INTERNATIONAL IPR AGREEMENTS REGULATING PLANT VARIETIES AND PLANT BREEDERS’ RIGHTS

2.1. Introduction and overview
2.2. The UPOV Acts

2.2.1. The 1978 UPOV Act
2.2.2. Eligibility requirements
2.2.3. The 1991 UPOV Act
2.2.4. Resistance to the 1991 Act

2.3. The TRIPs Agreement.

2.3.1. TRIPs as a spur to plant variety protection.
2.3.2. Patent protection for plant varieties under TRIPs
2.3.3. Sui generis protection for plant varieties under TRIPs

3. PART III: OPTIONS AVAILABLE TO NATIONAL GOVERNMENTS UNDER EXISTING INTERNATIONAL IPR AGREEMENTS PROTECTING PLANT VARIETIES AND PLANT BREEDERS’ RIGHTS

3.1. Introduction
3.2. Classification of states according to their international IPR obligations

3.2.1. Cumulative treaty obligations
3.2.2. Conflicting treaty obligations

3.3. Identifying the level of discretion available to states in each treaty classification

3.3.1. WTO and UPOV 1991 Act members
3.3.2. WTO and UPOV 1978 Act members
3.3.3. 1991 or 1978 UPOV Act members only
3.3.4. Member of WTO only
3.3.5. Not a Member of WTO, UPOV or other IPR agreements

3.4. Discretionary choices available to "WTO only" Members

3.4.1. Introduction
3.4.2. Revising eligibility requirements
3.4.3. Additional conditions on the grant of protection
3.4.4. Modifying exclusive rights, protected material, terms or exceptions and limitations

3.5. Current trends in national laws

3.5.1. Alternative plant variety protection laws
3.5.2. Failure to enact plant variety protection laws

3.6. Understanding the limitations of sui generis IPR systems

4. PART IV: FUTURE REVISIONS OF INTERNATIONAL IPR AGREEMENTS AFFECTING THE PROTECTION OF PLANT VARIETIES: THE WTO DOHA ROUND AND THE ITPGR

4.1. Introduction
4.2. The WTO Doha Round of trade negotiations

4.2.1. Trade tensions between industrialized and developing nations
4.2.2. Disagreements over the scope of review of article 27.3(b)
4.2.3. Provisions of the Doha declarations relating to Article 27.3(b)
4.2.4. Balancing IPRs and other objectives: mandatory or permissive policy options in a revised TRIPs Agreement

4.3. International Treaty on Plant Genetic Resources for Food and Agriculture ("ITPGR").

4.3.1. Overview and basic objectives
4.3.2. Intellectual property provisions of the ITPGR
4.3.3. The relationship between the ITPGR and TRIPs

5. PART V: CONCLUSION

BIBLIOGRAPHY

FAO LEGISLATIVE STUDIES

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