Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 391

3. Provide for dual protection under patent law and under another system or law, as
in the United States;
4. Exclude plant varieties only from patentability and establish a sui generis system.
The UPOV convention is the relevant convention on plant varieties but TRIPS does not
mandate joining UPOV and it did not specify the UPOV Convention as the model to
be followed. Whether countries should join the UPOV Convention or not depends on
many factors. The major advantage is that countries can readily use its rules and provi-
sions and need not extend protection to all varieties.
In TRIPS Plus agreements, which are negotiated under bilateral trade agreements,
countries are to provide stronger protection for plant varieties by providing patent pro-
tection or adhere to the 1991 UPOV convention norms, with very few exceptions.16 This
provides “effective” protection for plant varieties from the perspective of the United
States and the European Union. However, in the changing intellectual property land-
scape, patents are preferred to mere plant breeders' rights or a combination of both is
sought. The UPOV Convention also allows dual protection. Hence, in the United States
and Europe, effective protection means dual protection with virtually no exemption or
little exemption for farmers and plant breeders. Countries that are joining UPOV now,
although they may start with a sui generis system in applying protection to a limited
number of varieties, may have little option later. But whether they can retain a farm-
ers' exemption is an important question as the UPOV Convention is being revised and
countries have to adhere to the 1991 UPOV Convention if they join now.
Large developing countries, such as India, China, and Brazil, have taken differ-
ent approaches in plant variety protection. While China has adopted the UPOV
Convention as the model, India opted for a sui generis system that gives effect to plant
breeders' rights and farmers' rights through a separate law. In developed nations, patent
protection is emerging as the de facto standard for protecting plant varieties, while in
many developing countries a balance is struck between plant breeders' rights and farm-
ers' rights to use the variety for varietal development without permission of the intellec-
tual property right holder.
Legally the patent holder can deny access to plant genetic resources necessary to
develop new varieties and this can become a constraint in developing varieties using
biotechnology. The European Community Directive 98/44 on the Legal Protection
for Biotechnological Inventions enables breeders to apply for a compulsory license for
nonexclusive use of the patented invention; the patent holder is entitled to royalties. In
implementing this provision, France and Germany have provided for a flexibility that
enables exemption for scientific research and breeders (Santilli 2012, 98-99).
Irrespective of the 1991 UPOV Convention and the TRIPS agreement, some European
countries have enacted laws to safeguard and promote the use of local varieties and to
provide farmers with the opportunity to choose varieties. Norway has adhered to the
1978 UPOV Convention. In some countries, including Brazil, many types of varieties,
such as local varieties and conservation varieties, are recognized by law, and the provi-
sions on seed saving and use and exemptions from registration and other provisions