Breeder's Exemption in Patent Law: Towards a TRIPS Compliant Exemption

Abstract

This paper will discuss the incorporation of a breeder’s exemption into patent law. The main question to be addressed is whether such an exemption, as found in plant variety protection regimes, would create an appropriate balance between the patent right holder’s interest and the public interest and whether it would be compatible with the TRIPS disciplines. Section II examines how the breeder’s exemption is provided under the UPOV Convention and in some jurisdictions (with the examples of US, Europe, Ecuador), while section III analyses the compatibility of two different versions of that exemption with the TRIPS Agreement.

Keywords: Patents, Plant Breeders’s Right, Trips Agreement