Establishing intellectual property rights for plant varieties

Developing countries are facing intense pressure to institute intellectual property rights (IPRs) for plant varieties. These pressures are centred now in the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs Agreement) of the WTO. TRIPs obliges all member countries of the WTO to protect private rights to plant varieties by either patent or by an effective sui generis system.

Developing countries are concerned that the TRIPS agreement does not encourage those seeking patents over biotech inventions to respect the basis principles of the CBD, i.e. obtain a permission from the source countries of bio-material used in inventions and share the benefits with the country of origin. They argue that the absence of information on the geographical origin of bio-material used in inventions makes it difficult for them to keep track of the commercial use of these resources or to check whether bio-prospectors have respected the principles of the CBD. Plant variety protection (PVP) is one form of sui generis rights to plant varieties. It was designed in Europe in the late 1950s to give patent-like rights to plant breeders.

The Union for the Protection of New Varieties of Plants (UPOV, from its French derivation) is a multilateral agreement that has been adopted by countries offering common rules for the recognition and protection of the ownership of new varieties by plant breeders. Set up in 1961, UPOV went from six original European members to around 20 by the early 1990s. Today there are 37 members, including several Latin American newcomers. UPOV has a small secretariat inside the UN's World Intellectual Property Organisation in Geneva. The original International convention for the protection of new varieties of plants (1961) (UPOV Convention) has been subsequently revised in 1972, 1978 and 1991. All members are either party to the 1978 or the 1991 Act. The 1978 Act will be closed to further accession in April 1999. After that point, any country wishing to join UPOV will have to adhere to the terms of the 1991 version.

TRIPS and the CBD, far from being in conflict, are compatible and can mutually reinforce each other. The key proposal in the paper is a means of obliging applicants for patents who have used the fruits of bio-prospecting for new products, to disclose the geographical origin of any biological material used in biotech inventions. At present, there is no such obligation.

Instead of being an incentive to put more diversity in the seed supply, IPR laws are encouraging agrochemical companies to claim ownership of the world's genetic resources and take control of public agricultural research systems simply to suit their market interests worldwide.