This study provides a comprehensive overview of the international intellectual property system regulating plant varieties and the rights of plant breeders. It identifies the essential features of this system, including the policies supporting the grant of intellectual property rights (IPRs), the societal objectives in tension with IPRs, the institutions that have shaped the international intellectual property system and the basic components contained in the relevant international treaties. The study explains in particular the different forms of legal protection required by international IPR agreements, including the system of plant breeders’ rights in the 1978 and 1991 UPOV Acts, the choice between patent and sui generis protection created by article 27.3(b) of the TRIPs Agreement and the impact of so-called "TRIPs plus" bilateral and regional treaties.
This study is directed in particular to national governments considering how to protect plant varieties. It analyses the alternatives available to a state depending upon the different IPR treaties it has ratified. Each of these treaties grants national governments a different level of discretion to choose how to protect plant varieties as a form of intellectual property. Once a government has consulted this study to determine the degree of discretion it enjoys as a result of its treaty ratifications, it can then review those portions of the study that identify the mechanisms that it may adopt, consistent with its international obligations, to balance the protection of IPRs against other societal objectives. These objectives include encouraging biodiversity, facilitating access to plant genetic resources, recognizing farmers’ rights, promoting the equitable sharing of benefits and protecting the traditional knowledge of indigenous communities.
Finally, the study explains the ways in which the international intellectual property system is on the cusp of significant change. The degree of discretion that governments currently enjoy in this area may diminish significantly depending upon the outcome of negotiations currently under way in the WTO and likely to commence now that the ITPGR has entered into force. Governments interested in retaining discretion would be advised to monitor and participate in these negotiations, with a view to harmonizing their international obligations, thereby avoiding the necessity of turning to international tribunals to settle their disputes.
