From: Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System by Dan Leskien and Michael Flitner. IPGRI Issues in Genetic Resources No. 6 June 1997.
POSSIBLE ELEMENTS OF AN INTELLECTUAL PROPERTY RIGHT SUI GENERIS FOR PLANT VARIETIES
Various elements can be included in a TRIPS-compatible sui generis system for the protection of plant varieties:
- Firstly, the protectable subject matter must be defined. There are several ways to define the term plant variety. Furthermore, the TRIPS Agreement leaves the option to protect additional subject matter.
- Secondly, the requirements for protection must be set up. The 'traditional' requirements for the protection of plant varieties – that they be novel, distinct, uniform and stable – can be altered substantially. But the plant grouping to be protected still has to be distinct from other plant groupings and it must be possible to clearly identify it with reasonable effort. Moreover, additional requirements for protection may be set up, such as Value for Cultivation and Use (VCU) or declaration of origin. While the former may allow member states to provide for incentives to fit their specific priorities in plant breeding, the latter may, for example, be helpful in verifying whether the Prior Informed Consent (PIC) of the providers of breeding material has been obtained.
- Thirdly, the scope of protection must be defined. The physical elements (representing a plant variety) which are to be covered by the right may include vegetative or reproductive propagating material, and they may also include the harvested material. Also in modelling the scope of the sui generis right, the legal acts will have to be defined which shall require the authorization of the right-holder. Member states could follow the models provided by current patent law or by the different UPOV Acts. They may also define a different scope of protection subject to the general requirements as set out in Chapter 2. This includes, for example, the option to grant the exclusive right to use a PVP seal for material of a specified, registered variety in combination with its registered denomination. Such a seal would not relate to the material as such.
- Fourthly, the definition of the duration of the sui generis right – which is not specified under TRIPS – is an important factor to deal with.
- Fifthly, the interface with other IPR should be clearly regulated to avoid the problem of overlapping claims, as they have been set out in Chapter 1.
- Finally, there is a package of elements that can be introduced to balance the privilege conferred to the right-holder, such as community gene funds, registers to facilitate benefit-sharing mechanisms and the institute of a public defender. Each single element must be carefully designed, but the main focus should be directed at balancing the different interests in the overall package of elements establishing the sui generis system.