Article 27(3)(b) TRIPS and plant variety protection in developing countries

Christoph Antons*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Abstract

In comparison with industrialised countries, agriculture in developing countries accounts for a substantial share of GDP and involves a substantial sector of small-holders and traditional agriculturalists. In view of these differences, the biotechnology clause of Article 27.3.b TRIPS with its requirement of plant variety protection either by patents or an effective sui generis system or a combination of the two has been controversial. However, developing countries have made surprisingly little use of the freedom to design their own systems in this field. Instead, there has been a surge in UPOV membership among developing countries and some have gone as far as introducing patent protection for plant varieties. Such countries now have to consider the same exclusions and exceptions to patenting that are normally discussed in countries with much more advanced biotechnology industries. The chapter examines the scope for the use of orde public considerations under Article 27.2 TRIPS, of exceptions for research and experimental purposes under Article 30 TRIPS, compulsory licensing under Article 31 TRIPS as well as the advantages of a specific breeding exemption and it briefly comments on the various sui generis options. While liberal interpretations of the TRIPS exceptions remain possible, the chapter concludes that the majority of developing countries will be better off in more creatively using the freedom to develop sui generis systems suitable for their local conditions rather than struggling to introduce TRIPS conform 'limited exceptions' to patent protection for plant varieties.

Original languageEnglish
Title of host publicationTRIPS plus 20
Subtitle of host publicationfrom trade rules to market principles
EditorsHanns Ullrich, Reto M. Hilty, Matthias Lamping, Josef Drexl
Place of PublicationHeidelberg ; New York ; Dordrecht ; London
PublisherSpringer, Springer Nature
Pages389-414
Number of pages26
ISBN (Electronic)9783662481073
ISBN (Print)9783662481066
DOIs
Publication statusPublished - 2016
Externally publishedYes

Publication series

NameMPI Studies on Intellectual Property and Competition Law
PublisherSpringer
Volume25
ISSN (Print)2191-5822
ISSN (Electronic)2191-5830

Keywords

  • TRIPs
  • plant variety protection
  • developing countries
  • agriculture
  • biotechnology
  • UPOV
  • orde public
  • breeding exemption
  • compulsory licensing
  • research exceptions

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