New Horizons in Environmental and Energy Law series
Chapter 10: Sui generis legislation
Article 27.3(b) of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) states that members shall provide for the protection of plant varieties either by patents or by an effective sui generis system, or by any combination thereof. Therefore while countries are required to formulate a legal framework to protect new plant varieties, this need not be based on patents. A sui generis system permitted for this purpose would be one tailored to the specific context, situation and needs of each country as opposed to one that would be applicable globally. The debate on this requirement has taken place in the TRIPS Council in the context of the review of Article 27.3(b). While sui generis legislation is contained in the TRIPS Agreement in relation to plant variety protection, its application has been expanded to cover traditional knowledge and expressions of folklore. Developing countries have taken up issues of sui generis legislation for the protection of traditional knowledge in relation to plants and their uses in the TRIPS Council, and also in various fora of the CBD in the context of Article 8 (j). In the World Intellectual Property Organization (WIPO), the topic has been discussed in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). There has been considerable debate in international fora as to the nature of sui generis measures and what elements they should comprise. These elements would differ in regard to the protection of plants on the one hand, and traditional knowledge on the other.
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