This study describes and analyses the various international legal regimes governing intellectual property rights in plant varieties and sets forth regulatory options for national governments to protect plant varieties while achieving other public policy objectives relating to plant genetic resources. It identifies different sets of policy options for governments based upon the specific constellation of treaty commitments they have undertaken. The study includes tables to convey complex information in a clear and easily understandable format.
Part I of the study reviews rationales for granting intellectual property rights in new plant varieties and the policy objectives that may be in tension with such rights. It also identifies the international institutions and intergovernmental organizations that regulate intellectual property rights in plant varieties and plant genetic resources generally, and describes the core obligations set forth in international intellectual property agreements.
Part II discusses the provisions of the relevant international intellectual property agreements in greater detail. These agreements include the 1991 and 1978 Acts of the Union internationale pour la protection des obtentions végétales ("UPOV"), which protect plant breeders rights, and the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPs"), which permits World Trade Organization Members to protect plant varieties with either patents or a sui generis system of intellectual property protection. Part II also includes a discussion of so-called "TRIPs plus" bilateral and regional agreements as they relate to plant variety protection.
Part III of the study begins with a brief overview of the international legal rules governing cumulative and conflicting treaty obligations. For each of the relevant international intellectual property agreements, Part III then identifies: (1) the implementation measures that are mandatory for member states; (2) the implementation measures that member states may but are not required to adopt; and (3) a range of policy options for national governments consistent with the treaty commitments that they have undertaken. Part III also includes a discussion of recent trends in national laws relating to the protection of new plant varieties.
Part IV looks to the future and considers the Doha Round of trade negotiations now under way at the World Trade Organization as well as the International Treaty on Plant Genetic Resources for Food and Agriculture, which entered into force in June 2004. It explains how these two developments may lead to a revision of existing legal rules and policy options for national governments in the area of plant variety protection and it explores the possibilities for harmonizing conflicting treaty commitments.
Part V summarizes the study, which concludes that the options available to national governments are dependent upon the international agreements to which they are parties.
This study was authored by Laurence R. Helfer, Professor of Law at Vanderbilt University Law School in the United States. It was initially published in 2002 as a Legal Paper Online in the series of the same name published by the FAO Legal Office at http://www.fao.org/Legal/prs-ol/paper-e.htm, and has been revised and updated in 2004. The author would like to thank Lawrence Christy, Daniele Manzella, Ali Mekouar, Victor Mosoti, Marta Pardo and Jessica Vapnek for their many helpful comments and suggestions. He extends a special note of thanks to Jessica Vapnek for first sparking his interest in plant variety protection and for her encouragement throughout the drafting process.
Development Law Service