New Horizons in Environmental and Energy Law series
Chapter 8: The plant protection provisions of UPOV, the TRIPS Agreement and bilateral treaties
The previous chapter provided a general overview of the workings of the international property rights regime in regard to PGRFA and this chapter will analyze its specific application to these resources. The development of property rights over new plant varieties, while having its roots in national laws, later expanded in the international sphere. The national and inter- national developments have to a great extent influenced each other. The process has also resulted in the impetus at international level to make national legislation on such rights consistent with international regimes. This chapter will provide a brief discussion of the development of plant protection laws in the national sphere and then examine the provisions of two international agreements which deal with the application of intellectual property rights (IPRs) to PGRFA, namely the UPOV Convention and the TRIPS Agreement. I will consider the impacts of IPRs on farmers and agricultural systems particularly in developing countries, and analyze the debate on the subject which is taking place in international fora. Two forms of monopolistic property rights are available to breeders of new varieties of plants – namely patents, and plant variety protection (PVP) or plant breeders’ rights (PBRs). Both are forms of intellectual property rights. A patent, which is available for any industrial invention, gives the inventor the right to prevent any other person from using the invention in any way for a period of time, usually 20 years. The criteria for obtaining a patent on an invention are proof of novelty or non-obviousness, inventiveness, and utility or usefulness.
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