Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 390

plant variety in a scientific sense, based on taxonomy, or in a legal sense, based on spe-
cific criteria to be met for protection. A plant variety can also be defined as a combina-
tion of both. It can be argued that the term plant varieties is more a legal construct than
a scientific fact. With the advent of biotechnology the legal construct has also under-
gone changes as claims have been made for protection of genes and hybrid plants. Thus,
although a wide scope appears to exist both for flexibility in defining plant varieties and
for intellectual property, protection has to be balanced with other objectives, such as
farmers' rights and promoting research in plant breeding.
TRIPS does not define what is meant by “effective protection” under Article 27.3(b).
Countries have responded in many ways, so much so that many types of varieties are
defined by the laws differently. For example the Plant Variety Protection and Farmers
Rights (PVPFR) Act of India defines four types (new variety, extant variety, farmers'
variety, and essentially derived variety) with different criteria, rights, and durations.14
Many countries, particularly developing countries, have opted for a sui generis system
of protection for plant varieties.15
A TRIPS compatible system of protection can be one of the following:

1. Exclude plants and plant varieties and set up a sui generis system, which can be
under patent law or a separate system;

2. Cover plants and plant varieties under patentability;

Table 15.1 Comparison of TRIPS Compatible Patent Law, UPOV 1978, UPOV 1991
and “Sui Generis”

TRIPS Compatible
Patent Law

Feature UPOV 1978 UPOV 1991 “Sui Generis”

Eligibility for
Protection

Novelty, Inventive
Step and utility

Novel, Distinctive,
Uniform and Stable

Novel, Distinctive,
Uniform and Stable

Novel,
Distinctive,
Uniform and
Stable but other
criteria also for
some types of
varieties

Exclusive Rights Patent like

protection

Plant Breeders' Rights
with exemptions

Plant Breeders'
Rights and Patents,
exemptions optional

Plant Breeders'
Rights with
exemptions for
Breeders and
Farmers

Minimum Term of
Protection

20 years 18 years for trees and

grapevine, 15 years
for all other plants

25 years for trees
and grapevines,
20 years for all other
plants

Varies—no
uniformity