International IP Law: a Balancing Act
The World Trade Organisation (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) came into force in 1995. For many developing countries this required changes in their national intellectual property legislation particularly in the area of protection over plants and plant varieties.
TRIPs in practice
The TRIPs agreement does, however, contain some flexibility, principally through the optional exclusions found in Article 27(3)(b). This Article allows for the exclusion of plants from patenting but members must provide protection for plant varieties either by patents or by an effective sui generis system or both. Many developing countries, particularly those in Asia, made use of this flexibility and excluded plants from being the subject matter of a patent. However, they still had to introduce an effective sui generissystem for the protection of plant varieties.
The problem of farmer’s rights
Although the most obvious sui generis system for the protection of plant varieties was the International Union for the Protection of New Varieties of Plants (UPOV 1991 convention), many developing countries felt that the 1991 Convention was not suitable in that it lacked appropriate recognition of farmers rights. Therefore, few Asian countries joined UPOV but instead implemented their own plant variety legislation with a strong recognition of farmers’ rights.
India, along with many other developing countries, introduced a sui generis form of plant variety protection. The Protection of Plant Varieties and Farmer’s Rights Act (2001) recognised and protected the rights of farmers in respect of their contribution towards conserving, improving and making available plant genetic resources for the development of new plant varieties. The Act permits farmers to save, use, sow, resow, exchange, share or sell farm produce including seed of a variety protected under the Act. But farmers are not permitted to sell a branded seed of a variety protected under the act.
The Indian Patent Act specifically excludes plants and animals in whole or any part thereof other than micro-organisms, but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals.
Whilst arguably this excludes plants and gene or amino acid sequences from being patented, it does not appear to exclude a method or process of expressing gene or amino acid sequences. The granting of a process patent over, for example, a method or process of expressing a gene sequence will give protection over the plant itself and severely limit the activities farmers are permitted to carry out in relation to the plant and any seeds produced. Therefore, patent law would undermine the strong farmers rights found in the PVR legislation.
A solution from EU law
Now this may only be an issue when dealing with genetically modified (GM) crops. However, over the last 16 years there has been a steady increase in the number of countries growing GM crops. To date 19 developing countries, including India, are growing GM crops. Research in this area will find new gene and amino acid sequences and methods of expressing these sequences.
One possible solution to this problem can be found in EU law. The Directive on the Legal Protection of Biotechnological Inventions (biotech directive) led to a closer relationship between patent and PVR law. The farm saved seed provisions found in the Community Plant Variety Regulation were transposed into the national patent law of EU member states. Therefore, the farm saved seed provisions will apply equally to a PVR protected or patent protected plant. Developing countries could utilise the flexibility in TRIPs to ensure patent and PVR legislation coexist rather than conflict.