ISHS Acta Horticulturae 495: WCHR - World Conference on Horticultural Research
INTELLECTUAL PROPERTY RIGHTS, BIOTECHNOLOGY AND RESEARCH: THE ROAD AHEAD |
| Author: | V. Santaniello |
| Abstract:
Over the recent past two developments with important implications for genetic resources have taken place. The first is the expansion of patent rights to incorporate genetic resources either directly through cloned patent genes or indirectly through patenting plant varieties. The second is the rapid development of biotechnology methods and their application to plant breeding and improvement. Although in economic history there can be found several cases of some kind or another of Intellectual Property Right (IPR) protection applied to plant varieties, in modern times the 1930 US Plant Varieties Act can be considered the first occurrence of granting legal proprietary protection to asexually propagated plants. This has been followed by the 1970 Plant Variety Protection Act (PVPA) that has extended protection to sexually propagated plants. The 1970 PVPA has introduced in the US a breeder right protection that gave to breeders the power of excluding non authorized entities from producing and trading a protected variety. Besides those two Acts, however, what have significantly influenced the IPR regimes in the US, are the cases law where courts decisions have increased the proprietary rights protection of plant varieties and animal races by excluding farmers and research privileges (Evenson 1998). Until now the principles that have informed the legislation on patents in the countries of the European Union were those agreed upon and included in the European Patent Convention (EPC) of 1973. More specifically article 53(b) of the EPC stated that European patents shall not be granted to plants and animal varieties or essentially biological processes for the production of plants or animals. This provision did not apply, however, to microbiological organism nor to their products. Preparatory work to harmonize European patent legislation started as early as 1959, when a first comparative study was conducted on the regulatory norms in force in the six countries forming the original nucleus of the European Union. The Haertel Study recommended that the future European legislation should not include all of the exclusionary provisions that were present in the national laws. Two exceptions, however, were foreseen namely the invention that violated public order and morality and those that related to plant varieties. Although the Coordinating Committee of the Secretary of States stated that the only exclusion that should be present in the future legislation should be for inventions contrary to order and public morale, subsequent formulation by the working groups reintroduced exclusionary provisions for plant varieties and essentially biological processes for the production of plants and animals. As we will be seen later recently the EU has approved a new Common Position on this matter. Developing countries do not have an effective IPR regime, although they should soon create one to comply with the obligations set in WTO agreement signed in 1994. This agreement defined the trade related intellectual property rights (TRIPS) whereby all the low income signatory countries should define and implement a sui generis intellectual | |
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