Legal and Biological Perspectives of “Plant Variety” in IPR Context

Abstract

The possibilities of human intervention on plants were limited for a long time to simple handling of selection or crossing which were always regarded as essentially biological processes. However, the development of the genetic engineering in the field of plants and the possibilities of plants genetic inheritance handling by the advanced techniques, such as the recombining DNA, evoked debates over the patentability of plant inventions.

According to Article 27.3(b) of the TRIPS Agreement, Members may exclude “plants” from patentability, but they shall provide for the protection of “plant varieties” either by patent or by an effective Sui generis system or by any combination thereof.

The relationship between plant breeder's rights (as a sui generic system) and plant rights results interesting dynamics in the interface between the systems since the UPOV understanding of plant variety can affect the understanding of the term in the patent system.

In view of the importance of the decision of countries to protect plant varieties, the study assesses also the legal positions adopted by jurisprudence or doctrine to determine the scope of the plant varieties exception.

It is concluded that the actual and biological differences between “plant” and “plant variety” could give good reason for interpreting the two terms in different ways.