Article 27(3)(B) Trips and Plant Variety Protection in Developing Countries

Hanns Ullrich, Reto M. Hilty, Matthias Lamping and Josef Drexl (eds.), TRIPS plus 20: From Trade Rules to Market Principles, Heidelberg-New York-Dordrecht-London: Springer, 2016

28 Pages Posted: 31 Jan 2018

See all articles by Christoph Antons

Christoph Antons

University of Newcastle (Australia) - Newcastle Law School

Date Written: August 2, 2016

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 exclusions 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.

Keywords: TRIPS, plant variety protection, developing countries, exclusions and exceptions from patentability, compulsory licensing, breeding exemption, sui generis options

JEL Classification: F53, K22, K33, O34, Q16, Q17, Q18

Suggested Citation

Antons, Christoph, Article 27(3)(B) Trips and Plant Variety Protection in Developing Countries (August 2, 2016). Hanns Ullrich, Reto M. Hilty, Matthias Lamping and Josef Drexl (eds.), TRIPS plus 20: From Trade Rules to Market Principles, Heidelberg-New York-Dordrecht-London: Springer, 2016. Available at SSRN: https://ssrn.com/abstract=2817628

Christoph Antons (Contact Author)

University of Newcastle (Australia) - Newcastle Law School ( email )

1 University Drive
Callaghan, 2308
Australia

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