Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 389

Thus, the rights available are extensive while exceptions are limited for two purposes—
if permitted by law. That is, a country can frame its laws under the framework provided
by the 1991 UPOV Convention and specify the limits of exemptions to plant breeders'
rights. It can restrict the so-called farmers' exemption or eliminate it altogether.
Article 53(b) of the European Patent Convention excludes plant varieties from patent
protection. Article 4(1), Paragraph 2 of the European Biotechnology Directive allows
patenting of plants where “the technical feasibility is not confined to a particular plant
variety.” The Enlarged Boards of Appeal of the European Patent Office in the Novartis
case held that GM plants can be granted patent protection when the invention is not
limited to a single variety. This exception to patentability is narrow, as inventions are not
limited to any single plant variety per se.13 Plant variety protection in the United States
and in Europe differs, partly due to the issue of differentiating plants and plant variety/
varieties in the intellectual property laws. In addition, variations are found among coun-
tries within Europe in implementing plant variety protection.
In the Uruguay Round negotiations, intellectual property rights became a matter for
vigorous debate. Developed nations were determined to push for a global agreement
that would expand the subject matter of intellectual property rights. The resulting
TRIPS agreement mandated intellectual property protection for plant varieties. With
the advent of the TRIPS agreement, a global shift in plant variety protection occurred
as countries had to adhere to the norms specified in TRIPS. Article 27.3(b) states that
members may exclude from patentability
plants and animals other than micro-organisms, and essentially biological processes
for the production of plants and animals other than non-biological, and microbiolog-
ical processes. However, Members shall provide for the protection of plant varieties
either by patents or by an effective sui generis system or by any combination thereof.
The rules of the UPOV Convention have served as the basis for plant variety protection
in many countries. But some countries opted for stronger protection even before the
revision of the UPOV Convention in 1991. Since only a small percentage of the popula-
tion is engaged in farming as the primary occupation, the expanding scope of intellec-
tual property rights did not provoke a very intense response, although some opposition
was registered. Farmers were used to hybrids and they have been fully integrated into
the industrial mode of production, in which seeds are just another input. In contrast,
many developing nations had no laws to offer protection to plants, nor very well defined
intellectual property regimes. They had no option but to change their intellectual prop-
erty regime to make it compatible with TRIPS. So the choice before them was not one
of whether or not to provide protection for plant varieties; rather, it was which option to
choose. More important is that member states cannot establish legal concepts of inven-
tion that exclude any living or non-living material from intellectual property protection
as novelty, non-obviousness, and usefulness, i.e., the relevant requirements for patent-
ability can be met by inventions relating to living material as well.
The obligation under 27.3(b) is for granting protection to plant varieties only. Hence,
defining plant variety is essential. But TRIPS does not elaborate on this. One can define