The TRIPS Agreement allows WTO members to exclude, inter alia, plant varieties from patent protection (Article 27.3(b)) [TRIPs Article 27]. If they do so, however, they must have in place some alternate system of plant variety protection. Patent protection for plant varieties, if allowed, would confer stronger and broader rights than plant variety protection regimes. The latter have generally allowed farmers to save the seed that comes from growing protected varieties for their own use in replanting (farmers’ privilege). They may also allow them to exchange and re-sell such seeds. Under such regimes, breeders can use protected varieties to create new varieties (breeders’ exemption).
Farmers’ privilege allows farmers to better adapt protected varieties to changing climatic and locally specific conditions (as well as to enjoy the economic benefits of producing their own seed). Breeders’ exemption allows new varieties to more quickly be created—varieties that may be crucial in helping farmers adapt to changing climatic conditions. Plants may be improved or modified, among other objectives, to cope with climate change by enhancing their resistance to environmental stresses such as heat, cold, salinity and drought.
The possibility of broadly excluding plants and parts thereof from patentability is limited or completely ruled out in countries that have signed RTIAs that impose an obligation to make efforts or to grant patents for plants.10 These sorts of obligations are not recommended.
Option 1:Commitment to implement a plant variety protection regime that allows for breeders’ exemption and farmers’ privilege
Allowing breeders’ exemption and farmers’ privilege encourages more robust innovation in plant varieties, especially those ideally suited to specific local climatic conditions. Such local adaptations may be increasingly important in the face of climate change.
Examples
Model text exists in some countries’ national IP legislation (e.g., Malaysia, India, Thailand), but is not enshrined in any international trade law. For model text of a sui generis plant variety protection system see Chapter 4 in the PDF linked below.
How Commonly Used
Option 2:Commitment to implement a plant variety protection regime that does not allow for breeders’ exemption and farmers’ privilege
Not recommended; dampens innovation in the development of new plant varieties.
Examples
“Each Party shall ratify or accede to each of the following agreements, if it is not already a party to that agreement, by the date of entry into force of this Agreement for that Party: … UPOV 1991 … ”1 (TPP, Article 18.7(2))
How Commonly Used
Option 3:Commitment to provide patent protection for plant varieties
Not recommended; does not allow for breeders’ rights or farmers’ exemption; dampens innovation in the development of new plant varieties.
Examples
“Each Party shall make patents available for the following inventions: (a) plants, and (b) animals.” (US-Morocco Free Trade Agreement Article 15.9(2))
How Commonly Used
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For instance, the U.S. FTAs with Chile, Peru, Colombia and CAFTA-DR include “best endeavour clauses” to make available patents for plants, while other FTAs (e.g., with Morocco) contain a straightforward obligation to make patents available for plants.
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UPOV 1991 is International Convention for the Protection of New Varieties of Plants, as revised at Geneva, March 19, 1991.