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I would like to talk about the few aspects of the Patent laws regarding GMOs since this affects the international trade has a global impact. I maybe writing few chapters on this topic but first let us have a look at the basic Patent provisions at the beginning of this controversial topic.

{This article aims to provide information on - protection of new gmos & protection of gmos}

Patent protection can be conferred on plant materials in the following ways-

1. Through US model of utility patents.
2. Through normal patents on plants and cells.
3. Through patenting plant varieties.
4. Through providing Sui generis form of Plant Variety Protection (PVP), e.g.- Plant Breeders Rights.
5. Through allowing patents on DNA sequence, gene, transformed plants by these and seed and progeny of these plants.[1]

{This article aims to provide information on - protection of new gmos & protection of gmos}

Certain questions arise relating to patenting of GMOs. Like-

Whether the IP protection will help to generate needed technologies by the farmers?, whether it will affect the farmers access to technologies?, to what extent intellectual property protection, basically patent protection should be given to inventions in agriculture like GMOs?, whether it will contribute to access and benefit sharing which are the principles of CBD?[2]

Control over plants and animals through patenting will largely determine who controls the food system in the future.[3] It is claimed that patent protection generates needed technologies for the farmers. We have discussed the results of patent protection previously which shows that such protection constraints the rights of the farmers and effects biodiversity adversely. It only benefits the biotechnology companies.

Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPs)  does not mention the issue that whether the genes should be patentable. This issue is left for national legislation. The only specific requirement is for protection of plant varieties and micro-organisms.[4]

{This article aims to provide information on - protection of new gmos & protection of gmos}

 Exclusion of GMOs from patentability:

Art. 27.2 of TRIPs[5] provides for-

Any member state can exclude from patentability, inventions which is necessary to protect public morality, health, and human or plant life or to avoid serious prejudice to the environment.

Such exclusion should be based on scientific proof and not merely because its prohibited by their law.

Art. 27.3(a) states, plants and animals other than micro organisms, and essentially biological processes for the production of plants or animals other than non- biological and microbiological processes, shall not be patentable. Though Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.[6]

{This article aims to provide information on - protection of new gmos & protection of gmos}

Exclusion provisions of European Patent Convention:

Art. 53 (a) – European patents can not be granted to the inventions, exploitation of which will be against the public moral of that country. Such will not be decided only on the basis of law of that member state.

Clause (b) provides for exclusion of plant or animal varieties or essentially biological processes for the production of plant or animal. This provision does not apply to microbiological processes or products.[7]

Exclusion provision of EU Directive :

Art. 4 states that plant or animal varieties and essentially biological processes for the production of plant or animals, shall not be patentable.

Art.4.2, states that inventions which concern plant or animals, shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety.

Art.4.3, excludes microbiological processes or products obtained by such process.[8]

{This article aims to provide information on - protection of new gmos & protection of gmos}

International Union for the Protection of New Varieties of Plants (UPOV):

TRIPs allows the member states to adopt ‘sui generis system’ for Plant variety protection’ UPOV system can be adopted since it provides readymade legislative framework

It came into force in 1961 and has been revised thrice since then. It provides the breeders of new plant varieties, exclusive property rights over it. The criterion for protection is not inventive step but distinctivity, uniformity and stability.

In 1978, the act provided the breeder with rights regarding production for the sale of seeds. In 1991, the act became more restrictive for the rights of the farmers.

In 1978, UPOV allowed the farmers to use their own harvested seeds without the permission of the right holder.[9]

The 1991, UPOV allows farmers to reuse their own seeds but does not allow them to sale or exchange informally. The disadvantage is that it is designed with keeping in mind the commercialised farming system of the developed countries which can be of a little use to the developing countries.

The system allows the breeders to save seeds having very similar characteristics which show the commercial considerations only.[10]

The requirement of uniformity and stability in the UPOV system excludes local varieties developed by the farmers which are more heterogeneous  and less stable but these varieties are more suited and adaptable to the agro-ecological environment in which the majority of poor farmers live.[11]

Plant Variety Protection (PVP):

Most of the data available on the effect of PVP is from developed countries. In US it is found that PVP has not increased research activity as was claimed it would.

There is little evidence to show that the farmers have got increased range of plant materials as a result of PVP. It is looked by some as being developed to focus mainly on big farmers, affecting adversely Small farmers. One reason is, the requirement of purchasing seeds every year showing that the PVP is only a marketing tool.[12]

Some argue that PVP, by stimulating the production of new varieties increases biodiversity. On the contrary, PVP requires uniformity in the developed varieties for giving protection and certifies similar varieties of crop. This can in fact cause loss of biodiversity. [13]Similar concerns arose from the greater uniformity resulting from the success of  green revolution which lead to greater susceptibility to disease and loss of on-field biodiversity.[14]

The Plant Variety Protection Act (PVPA):

It came into force in 1970 and in 1994, it was amended. It is a voluntary program and provides patent-like rights to breeders, developers and owners of plant varieties. After amendment it also provided protection to potatoes and tuber crops.

The object of the Act was to encourage development of new non-hybrid varieties.[15]

The Act provides for following provisions–

1. The protected varieties can be sold as seed stock only with permission of the certificate holder and in some cases only as a class of certified seed.
2. The protected varieties must have labels on the seed containers indicating the type of protection.
3. Farmers can save limited amount of seed for replanting but it prohibits the reselling without the owner’s permission.[16]

{This article aims to provide information on - protection of new gmos & protection of gmos}

[1] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and development policy, p-59

[2] Ibid

[3] CIDSE, (international Co-operation for development and solidarity, bio-patenting and the threat to food security., Feeding or fooling the world?, http://www.ebfarm.com/PDFs/Feed_Fool_World.pdf

[4] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and development policy

[5] Trade-Related Aspects of Intellectual Property Rights 

[6] Farhana Yamin, Intellectual Property Rights, Biotechnology and Food Security, p-18

[7] Farhana Yamin, Intellectual Property Rights, Biotechnology and Food Security, p-18

[8] Ibid

[9] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and development policy,

[10] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and development policy,

[11] Ibid

[12] Ibid

[13] Ibid

[14] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and development policy,

[15] The Plant Variety Protection Act,  http://www.ext.colostate.edu/pubs/crops/00301.html

[16] Ibid