Research Paper 55, November 2014

Patent Protection for Plants: Legal Options for Developing Countries

The paper examines, first, the exclusion of patent protection for plants, including plant varieties, biological materials, and essentially biological processes for the production of plants. The legal implications of the right – recognized under the TRIPS Agreement – to exclude plants from patent protection are briefly discussed, as well as how the exclusion allowed by article 27.3(b) of said Agreement has been implemented at the national level and, particularly, whether it can be extended to parts and components of plants.

Second, the paper describes the obligation to grant patents on plants imposed under several free trade agreements (FTAs) entered into between the USA and developing countries. Third, it analyses possible limitations to the scope of patents relating to plants. Fourth, possible exceptions to the exclusive rights normally granted by a patent are examined, including the question of whether introducing specific provisions on plant materials is compatible with the non-discrimination clause of article 27.3(b) of the TRIPS Agreement. Fifth, the paper briefly considers how to address the overlapping of plant variety protection (PVP) and patent protection and the issue of infringement and permanent injunctions. Finally, some conclusions and recommendations are made.

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