Plant varieties
- Introduction and general background of the exceptions and limitations to the principle by which patents should be granted to all inventions in all fields of technology.
When analyzing the validity element of the three tier analysis that inspired the TRIPS PLUS ULTRA proposal we´ve said that the TRIPS Agreement sets a global standard, and that this global standard admits exceptions and limitations. We’ve also say that the harmonized aspects (the uniform core or heart of the global patent) are by far more relevant than those that are not harmonized, taking as a parameter to this conclusion the patent legal institution as a whole (a legal institution is the set of rules that gives life to an abstract concept). Nonetheless, it is worth analyzing this exceptions and limitations with detail.
One of the posible limitations that countries may establish within their borders regards the patentable subject matter (exceptions to the patentability of certain products, e.i., determining certain inventions as non-patentable subject matter). According to the general principle of the TRIPS Agreement, patents should be granted to all inventions in all fields of technology. This principle admits exceptions (or leves each country liberty to regulate the issue).
2. The exception: plant varieties.
Taken from a “A global solution for the protection of inventions“, pp 148-149. Internal citations omitted.
“While the TRIPS Agreement allows exclusion in some cases of biotechnology protection, it requires protection for plant varieties either by patents or other effective sui generis system or by any combination thereof. Many […] have joined the Union for the Protection of New Varieties of Plants (UPOV), an international organization created under the WIPO that has established a document called the UPOV Agreement containing relevant regulations.”
“A valid purpose should be also having a harmonized legislation regarding this on the coming years. The TRIPS Agreement established that the legislation on plant varieties ‘will be reviewed four years after the entry into force of the WTO Agreement.’ When this necessary revision comes (which has not happened yet), there will be issues—such as plant breeders’ rights and the rights of farmers and indigenous communities that have provided expertise or materials in the procurement—that will surely raise a heated debate.” There will be a better chance to get to an agreement if the TRIPS PLUS ULTRA proposal gets implemented, since it will reset the system.
(Go back to the patentable subject mater analysis for other ways the principle that state that patents should be granted to all inventions in all fields of technology could be limited.)