INTELLECTUAL PROPERTY:
Enhanced: An International Appraisal
Bonwoo Koo,¹ Carol Nottenburg, ² Philip G. Pardey^3*
Science, Vol 306, Issue 5700, 1295-1297 , 19 November 2004

The era of free and unencumbered access to new crop varieties appears to be passing. This development in intellectual property (IP) has raised a chorus of concerns about the implications for food production and human health, especially throughout the developing world. The downsides of IP have been emphasized by a series of articles in Science (1-4) [HN1]. However, much of the debate occurs in the absence of an understanding of the specifics of the rights available in particular jurisdictions, a practical sense of the rights actually claimed or granted, and their evolution over time. Existing information highlights rich-country developments, with little, if any, attention to developing countries.

While protection of a piece of IP is limited to the countries or regions that grant the protection, international aspects of IP can affect use and especially transfer of the technology or products. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) [HN2], which came into effect in 1995 and is a requirement for members of the World Trade Organization (WTO), inextricably tied trade with patent protection by providing patent owners the right to prevent others from importing a patent product and a product obtained directly from a patented process. Thus, if a producer wants to export a genetically modified crop to a country where there is a patent on the process to make that crop, importation requires the permission of the patent owner.

TRIPS requires that "patents shall be available for any inventions, whether products or processes, in all fields of technology" [Article 27(1)], but also provides added protections for plant varieties by mandating their protection "by patents or by an effective sui generis system or by any combination thereof." [HN3] Sui generis is a term literally meaning "of its own kind" or "unique." Systems for plant variety protection that satisfy the sui generis requirement of TRIPS are often called plant breeders' rights [HN4]. Although the minimum criteria for patents are set forth in TRIPS, no criteria are elaborated for what constitutes an "effective" sui generis system. There is considerable variation among countries in the implementation and application of these forms of protection. To illustrate the variety of plant-related IP protection on offer worldwide, we describe the different approaches to awarding patents for plants in the United States, Canada, Europe, and the Andean Community; illustrative sui generis systems from the United States (5), Europe, and India are contrasted.

Utility patents. In most countries, plants and inventions directed to plants or plant products (e.g., seed) are not eligible for a patent. In the United States, however, any living organism that is the product of human intervention (such as by breeding or laboratory-based alteration) is patentable (6). In particular, plants and plant parts, including seeds and tissue cultures, have been explicitly held to be patentable (7). Plant varieties can also be patented, and, since a recent ruling (8), there is no prohibition against obtaining multiple kinds of protection on the same variety [HN5]. Other plant- related patentable subject matters include plant groups, individual plants and their descendants, plant parts (e.g., specific genes or chromosomes), plant material used in industrial processes, transgenic plants, and particular plant traits.