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1st NUSRL IPR ESSAY WRITING COMPETITION’ 12 “IPRS AND PLANT VARIETIES: CONFLICT OR SYNERGY?” By: Vivek Saurav & Richa Kashyap, School of Law, KIIT University. ABSTRACT There are a number of concerns in respect to the potential impacts of the patenting of food and farming crops on agricultural livelihoods and the ability of poor people to feed themselves in developing countries. This study provides a comprehensive overview of the international intellectual property system regulating plant var
  1 st   NUSRL IPR ESSAY WRITING COMPETITION’ 12   “IPRS AND PLANT VARIETIES: CONFLICT OR SYNERGY?”   By: Vivek Saurav & Richa Kashyap,School of Law, KIIT University.  ABSTRACT There are a number of concerns in respect to the potential impacts of the patenting of food andfarming crops on agricultural livelihoods and the ability of poor people to feed themselves indeveloping countries. This study provides a comprehensive overview of the internationalintellectual property system regulating plant varieties and the rights of plant breeders, includingthe policies supporting the grant of intellectual property rights, the institutions that have shapedthe international intellectual property system and the basic components contained in the relevantinternational treaties. This article looks at some of the reasons for the introduction of plantvariety protection and examines in particular the links with food security and the reasons for introducing plant variety protection measures, along with some of the potential impacts of theTrade Related Intellectual Property Rights (TRIPs) Agreement of the World Trade Organisation(WTO). And in particular the authors would focus on the impact of Intellectual Property Rights(IPR) regime on small farmers and food security in developing countries. Part I of the studyreviews rationales for granting intellectual property rights in new plant varieties and the policyobjectives that may be in tension with such rights. It includes the identification of theinternational institutions and intergovernmental organizations that regulate intellectual propertyrights in plant varieties and plant genetic resources generally, and describes the core obligationsset forth in international intellectual property agreements. Part II discusses the provisions of therelevant international intellectual property agreements in greater detail. These agreementsinclude the 1991 and 1978 Acts of the Union internationale pour la protection des obtentionsvégétales   (“UPOV”), which protect plant breeders’ rights, and t he 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPs”), which permits World TradeOrganization Members to protect plant varieties with either patents or a  sui generis system of intellectual property protection. Part II also includes a discussion of so- called “TRIPs plus”  bilateral and regional agreements as they relate to plant variety protection. The existing IndianPatent Act, 1970 excluded agriculture and horticultural methods of production from patentability. Part III critically analyses the provisions of legislations for their effectiveimplementation. It also looks to the future and considers the ‘Doha Round of trade negotiations’ now under way at the World Trade Organization as well as the International Treaty on PlantGenetic Resources for Food and Agriculture, which entered into force in June 2004. It explains  how these two developments may lead to a revision of existing legal rules and policy options for national governments in the area of plant variety protection and it explores the possibilities for harmonizing conflicting treaty commitments. This study makes the case for the maintenance of an exception to patentability for plant varieties. It examines what has been proposed both in thegovernmental and non-governmental sectors. It ends with the argument that how India needs todo more it has done until now to implement a plant variety. INTRODUCTON Intellectual Property is the oil of the 21st century   - this quote by Mark Getty, chairman of Getty Images, one of the world's largest Intellectual Proprietors, offers a unique perspective onthe current conflicts around copyrights, patents and trademarks. Not only does it open up thecomplete panorama of conceptual confusion that surrounds this relatively new and rather hallucinatory form of property - it must also be understood as a direct declaration of war. Theimportance of plant genetic resources for agriculture to human welfare and the world economy is incalculable. According to Stephen Brush, plant genetic resources provide “the foundation of all food production and the key to feeding unprecedented numbers of people in times of climate and other environmental change” and therefore comprise perhaps the most important category of  biological resources. The relationship between intellectual property protection and internationaltrade has been one of the most controversial issues in global negotiations in recent years. Thedebate has largely about the implications of the agreement on the Trade-related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO) for international trade in general, and for developing countries in particular.Plant varieties protection in form of plant breeders right has been in existence in industrializedcountries for a long time. From the 1920s a number of European Countries have recognized various kinds of plant breeders’ rights. From the 1930s, plant varieties were admitted to patent  protection in the United States and Germany and subsequently many developed countries. 1 TheProtection of Plant Varieties by means of intellectual property rights has been subject of increasing importance in the aftermath of the adoption of the Agreement on Trade Related 1 M.BLAKENEY, Trade Related Aspects of Intellectual property Rights: A Concise Guide to the TRIPs Agreement,Sweet & Maxwell, 1996, London, p 21.    Aspects of Intellectual property Rights (TRIPs). 2 The ultimate rationale for plant variety protection is the enhancement of food security through the provision of new improved varietiesand improves availability of seeds through private sector channels. Farming communities have awell established practice of saving exchanging and replanting seeds which may be restricted under plant breeders’ rights. Accordingly, the recognition and the grant of an intellectual  property right to the breeder of new plant variety is not welcomed in a large number of developing countries. 3 The TRIPs Agreement leaves to each country’s discretion whether to  protect new plant varieties by means of patent or by effective sui generis system or by anycombination thereof. Farmers in developing countries usually posses traditional knowledge anduse traditional techniques to manage and develop new crop types and biodiversity conservation.They have been playing a major role in the conservation of plant genetic resources andtransmission of these resources to seed companies, plant breeders and research institutions. 4  Traditional farmers and indigenous people around the world have been seeing their plant geneticresources (PGRs) and traditional knowledge (TK) monopolized by private enterprises under   patents and plant breeders’ rights and have not been receiving their equitable share of benefitsfor their contribution 5 . These concerns led to the adoption of two United Nations bindinginternational treaties, the Convention on Biological Diversity (CBD) , the first global agreementon the conservation and sustainable use of biological diversity, signed at the 1992 Earth Summitin Rio de Janeiro, and the International Treaty on Plant Genetic Resources for Food andAgriculture (PGRFA), adopted on 3 November 2001 under the auspices of the FAO, whichrecognizes the enormous contribution that farmers and their communities have made andcontinue to make to the conservation and development of genetic resources. PART ILAW AND POLICY RATIONALE FOR PLANT VARIETY PROTECTION 2 Agreement on Trade Related Aspects of Intellectual Property Rights, Marrakech, 15 Apr. 1994, 33 InternationalLegal Materials 1197 (1994) [hereafter TRIPs Agreement]. 3 T. KONGOLO,  New Options for African Countries regarding Protection for New Varieties of Plants, 4  JWIP  ,2001 p.349.   4 M.BLAKENEY,  Regulating Access to Genetic Resources , International Association for the Advancement of Teaching and Research in Intellectual Property Congress ( ATRIP ), New Delhi, India, 6-8 October 2002, para.1   5 P. C. .MARIN  , Providing Protection for Plant Genetic Resources . Patents Sui generis System and Bio- partnerships , Kluwer Law international, 2002, New York, p.1  
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