The TRIPs agreement and biodiversity

Article 27.3(b) of the TRIPs agreement provides that “Members may exclude from patentability: 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.”

One issue of debate in the literature is the ethics of patenting life forms and the patentability of biological materials. Rapid developments in biotechnology, for example in genomics and monoclonal antibodies, lead to a continuing debate.

There is also discussion on the options under the sui generis (i.e. of its own kind) system to protect plant varieties. The International Convention for the Protection of New Varieties of Plant UPOV Convention) is currently the only plant variety protection system that exists in international IPR law. The UPOV convention was originally developed to meet the conditions in the advanced industrialised countries. Many developing countries are likely to join UPOV to comply with the TRIPs requirement. Whether UPOV is suitable for developing countries is a question of debate, however.

Below a selection of the literature is presented.

Intellectual Property Protection and Agricultural Biotechnology- a Multidisciplinary perspective, J.P. Kesan, Law and Economics Working Paper series, WP No. 00-22, April 2001, University of Illinois.

IP protection makes it possible to exclude others from appropriating the fruits of research and development. At the intersection of biotechnology and intellectual property are several public policy issues concerning innovation, technology, and society, which must be considered from a multidisciplinary perspective. The article discusses the structure of the agricultural biotechnology industry, the role of IP in achieving co-ordination and sharing of both the benefits and risks of innovation, international and national IP regimes, and the economic and philosophical rationales for IP. Finally, the key principles and doctrines are then applied to specific IP controversies in biotechnology.

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Study on the Relationship between on TRIPs and Biodiversity-related Issues, Centre for European Agricultural Studies in association with G. Tansey and Queen Mary Intellectual Property Research Institute, report prepared for the European Commission DG Trade, September 2000.

This 143-pages background document studies the relationship between IPRs as covered by the provisions of the TRIPs Agreement and Biodiversity related issues. It describes the work of international institutions and forums on this issue and likely future developments. It also provides an overview of international business associations and NGOs that are active in the area of TRIPs and biodiversity. After analysing the relationship between TRIPs and biodiversity from both a legal and practical policy perspective, the paper identifies initiatives on IPRs and biodiversity where the EU and its member states provide financial and technical assistance to developing countries. The paper ends with recommendations for policy making and actions.

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Technical Issues on Protecting Plant Varieties by Effective sui generis Systems, F. Mangeni, T.R.A.D.E. Occasional paper no. 2, December 2000, South Centre, Geneva.

The paper focuses on the technical issues regarding the protection of plant varieties by effective sui generis systems under the TRIPs agreement. Sui generis systems literally mean systems of their own kind. WTO members are allowed to design these laws themselves, but the law should be effective. Countries are therefore not required to adopt international regimes, such as UPOV or CBD. The author looks at the issues that play a role in the debate on the form of sui generis systems and also studies the concept of effectiveness of sui generis system. The paper ends with a number of minimal proposals developing countries could take to comply with the requirements under the TRIPs agreement.

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Beyond UPOV, Examples of Developing Countries Preparing non-UPOV sui generis Plant Variety Protection Schemes for Compliance with TRIPS, Grain, July 1999.

It is unclear what the “effective sui generis system”, required in article 27.3(b) is or should be. Most developed countries argue that UPOV provides the best sui generis system. Most developing countries disagree however. GRAIN (Genetic Resources Action International), has compiled a set of examples of some of the sui generis initiatives in the Africa, Asia and Latin America, which deviate from the UPOV regime.

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Enclosing the Global Plant Genetic Commons, R.W. Herdt, Paper prepared for the China Center for Economic Research, 24 May 1999.

Changing technology and institutions have interacted throughout history to create property rights from what s companies are seeking to capitalise on new developments and purchase mhad previously been public goods. The author notes that large multinational life scienceany independent seed companies, leading to high levels of concentration in the seed industry. The paper focuses on crop plants and on the potential implications of these new developments on the public interest. It outlines policies to address the challenges posed by these developments, and pays special attention to the situation of developing countries. The paper ends with a list of the pros and cons of intellectual property rights in developing countries.

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Trade, Intellectual Property, Food and Biodiversity, Key Issues and Options for the 1999 Review of Article 27.3 (b) of the TRIPS Agreement, G. Tansey, February 1999, Quaker Peace and Service.

This discussion paper reviews the complexities and uncertainties surrounding the impact of the TRIPs regime on plants and animals, on plant variety protection systems and on food security and agricultural biodiversity. The paper starts by looking at intellectual property rights in general, and then examines article 27.3(b) in more detail. It highlights the policy options for developing countries regarding this article and the options for review. It specifically pays attention to the moral, economic, environmental and social issues surrounding the agreement and examines the role that official development assistance can play. The author concludes that that the ambiguities surrounding the TRIPs agreement caution against any strengthening of such rights at this time.

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Ten Reasons not to Join UPOV, GAIA Foundation/GRAIN, Global Trade and Biodiversity in Conflict, Issue no.2, May 1998.

Over the last years developing countries are under pressure to extend intellectual property rights legislation to biodiversity, in particular to plant variety rights. Joining UPOV is often presented as a ready-made solution for complying with the TRIPs agreement. This paper gives a short description of UPOV and presents ten reasons why countries should not be joining UPOV.

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Eight Reasons Why Patents Should Not be Extended to Plants and Animals, L. Busch, Biotechnology and Development Monitor, No. 24, p. 24, September 1995.

Biotechnology industry interests normally call for an extension of patents to plants and animals as a requirement to stimulate investments in biotechnological research, and to ensure the wide distribution of the benefits from such research. In this one-page document, the author argues that if intellectual property rights must be extended to living organisms, another legal form would be needed. He presents eight reasons why an extension of patent law to higher organisms is not likely to serve the public good.

This document is available here

Other sources of information:

UPOV 

Convention on Biological Diversity (CBD)