International Aspects of Plant Variety Protection by ert554898

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									Protecting Our Food But
 Leaving Our Harvest?



                        Srividhya Ragavan
       University of Oklahoma Law Center
           Article 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

								
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