ICTSD Outputs and Activities on Biotechnology, Trade and Sustainble Development

Biotechnology: Addressing Key Trade and Sustainability Issues

B.4 Intellectual property rights

Q20 What intellectual property rights apply to agricultural biotechnology?

Patents and plant variety certificates are the main types of intellectual property rights used in relation to agricultural biotechnology. Patents were created as a tool to promote innovation and the dissemination of knowledge. They are privileges granted by a government that allow an inventor to exclude other persons from exploiting a patented product or process. Essentially, patents create a fence around the claim of a new contribution to technological knowledge for a limited period of time. Originally, this was meant to provide an incentive for intellectual creativity, but increasingly, the balance between protecting private and public policy interests is being lost.

It should be noted that the very legitimacy and characteristics of patent protection for biotechnology products remain controversial. While such concerns will not be analysed here, they cannot be ignored by the patent system whose basic principles require governments to avoid its misuse (CIEL, n.d.). Patents on biotechnology products, moreover, may also impact the integrity of the patent system undermining the very purpose of patent protection. For instance, the increasingly broad understanding of an 'invention', which is fundamental to accommodate many biotechnology-related patents, could have serious consequences for the functioning of the patent system. The level of patenting activity and the low quality of many patents on biotechnology products has also induced widespread concern (OECD, 2002). Patents granted on products and processes that do not involve an inventive step, for instance, or patents "fencing in" an overly broad portion of knowledge are increasingly common in regard to biotechnology products.

Plant variety protection (PVP) is also relevant to agricultural biotechnology. Indeed, biotechnology is increasingly becoming an important tool for plant variety breeders. Given the particular nature and characteristics of agricultural innovation and its significance for livelihoods, efforts to use intellectual property to protect agricultural innovations originally did not resort to the patent system, but rather to a distinct form of protection. PVP thus developed separately from patent protection, generally focusing on traditional plant breeding methods (APEC, 2001). The protection only applies to new plant varieties (including new varieties that result from genetic engineering) that are distinct variations within a given species (Jördens, 2002).

The benefits of PVP from a sustainable development perspective have been noted by various organisations, including the Commission on Intellectual Property Rights. With PVP, countries are able to elaborate a regime that promotes innovation while, for instance, controlling the impact of intellectual property protection on seed prices, safeguarding farmers' traditional practices of saving, exchanging and planting seeds, supporting public agricultural research institutions, and maintaining and developing varieties tailored to local conditions. The choice granted by the TRIPS Agreement, which requires WTO Members to provide some sort of protection for plant varieties, but allows an option for sui generis plant variety protection systems, is significant in this regard. While countries are free to design their own sui generis system, the most widely used PVP system is the International Convention for the Protection of New Varieties of Plants (the UPOV Convention), which was adopted in 1961 and revised in 1972, 1978 and 1991 (see Section C.2).