Protecting Our Food But Protecting Our Food But Leaving Our Harvest? Leaving Our Harvest?

Srividhya RagavanSrividhya Ragavan

University of Oklahoma Law CenterUniversity of Oklahoma Law Center

Article 27.3 TRIPSArticle 27.3 TRIPS

“…members shall provide for the protection of

plant varieties either by patents or an effective

sui generis system or by any combination

thereof”

Disadvantages in UPOV

• Diluted Novelty & Distinctiveness reqmt.

• Exaggerated scope of protection for breeders

• Lack of public interest exceptions.

• Definition of Novelty• The variety shall be deemed to be new if, at the

date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety

•The Sale Standard for novelty in UPOV excludes:

•Cultivation, reference collection, publication etc., will not defeat novelty

•Allows the breeder to claim protection over genetic varieties that have been cultivated for centuries but never sold.

• Distinctiveness (Art. 7)

• “The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application.”

• Application materials that are a matter of common knowledge can pass the test of distinctiveness if it can be distinguished from another material that is a matter of common knowledge.

• Distinctiveness (Art. 7)

• “The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing the application.”

• Art 14: A variety is “a matter of common knowledge,” … if it has been subject “of an application for the granting of a breeder's right” or has been entered in the official register of varieties, in any country.”

• Sole requirement for distinctiveness - ability to distinguish from another variety in the official register or, for which an application has been made.

• Plant A is a rare but well known plant within a small indigenous society. But Plant A is distinguishable from all varieties in the official register – UPOV would deem Plant A as distinct.

• Varieties already cultivated, being cultivated, well known, and are indistinguishable from well known varieties will continue to qualify as “distinct” so long as close cousins of the variety have not been subject to an application for breeder’s rights.

Scope of protection for breeders

• Breeder’s right covers protected variety and “varieties not clearly distinguishable” (art. 14 (5)(a))

• Breeder’s right covers protected variety and “varieties not clearly distinguishable” (art. 14 (5)(a))

• Art. 14 (5)(b) - Breeder can exercise rights over “essentially derived varieties”

• ‘Essentially derived varieties’ are:

– predominantly derived from the variety predominantly derived from an initial variety

– clearly distinguishable from the initial variety

• Thus protection extends over clearly distinguishable & clearly indistinguishable varieties.

• Rights over essentially derived varieties:– Breeder can claim rights of farmer’s experimented

variety although it is clearly distinguishable from the protected variety

Limitations on Breeder’s Rights

• Breeder’s rights have few restrictions– Art 14(1)(b): “Breeder may make his authorization

subject to conditions and limitations”– Art 17: “No Contracting Party may restrict the free

exercise of a breeder's right for reasons other than of public interest”

• “Public interest” been left undefined

Economic effect of PBR• Current operation of PBR will also be subject to operations

under Agricultural Agreement– Art 13 of AoA precluded challenges for noncompliance

with Agricultural liberalization commitments– Exceptions to GATT, AoA and SCM permitted

developed nations to maintain subsidies of totaling upto $ 150 billion

• Dumping caused from the agricultural subsidies of several developed nations– Resale in third markets at less than the cost of production in the

exporting country; The export subsidies, direct payments and credits bridge the gap between high cost of production, high internal prices and lower world prices.

Effect of subsidies on PBR

• Assuming PBR results in higher yield, newer varieties and better crop

• Economies will flourish if farmers can sell the produce

• Farmers will not be able to sell because of the dumping of subsidized products in both local and international markets

Effect of PBR on Farming• Abundant availability of food becomes inconsequential if

majority population (farmers) suffers from lack of trade and hence is unable to afford food

• Farmer cannot stock and reuse the seed because UPOV prohibits it (art 14)

• Farmer cannot continue farming because he may not be able to afford the cost of seed for the next cultivation– Throws farmers out of business– Creates more international trade barriers – atleast does not reduce

the international trade barriers.

• Majority of population will be affected if the produce of the farmers cannot be sold

Suggestions

• Agricultural liberalization to precede PBR