Comparative Analysis of Plant Breeder’s Right Proclamation No.1068/17 against UPOV Convention and African Model Law
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Date
2024-05
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Addis Ababa University
Abstract
Historically plant varieties were not eligible for patentability, making the protection of plant varieties through intellectual property rights a controversial topic. Recent developments within the WTO have heralded a major shift towards the imposition of the sui generis model of plant variety protection in most countries around the world. Article 27.3(b) of the TRIPS Agreement is the only provision regarding to plant variety protection; it stipulates that member states “shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” However, TRIPS does not specify or offer guidelines for what makes an effective sui generis system to which members and accession countries should conform. As TRIPS did not specifically refer to UPOV as an effective sui generis model of law, members and accession countries have the freedom to establish their own sui generis system for protecting plant varieties. Consequently, the WTO Council has mandated the TRIPS Council with examining the relationship between TRIPS and CBD, along with addressing concerns raised by developing nations. However, the revision of Article 27. (3) (b) of the TRIPS agreement is currently pending. It is anticipated that the proposed changes will alter the essence of Article 27(3) (b) to better suit the needs of developing nations. Consequently, this will provide flexibility for developing countries not to be compelled to join UPOV 91, which has implications for farmers and national interests. Moreover, in accordance with Article 66 of TRIPS and the council's decision for least-developed countries, these nations are not required to adhere to most provisions of the agreement, including Article 27(3)(b) of TRIPS.
To conclude, it can be understood that member‟s states of WTO does not reach any consensus as to what constitute an effective sui generis system of plant protection system. Therefore, member‟s states are not duty-bound to join UPOV or to adopt legislation based on it. They are
free to determine their own sui generis plant protection system in the context of respective national interests.
This study addressed the issues associated with what constitutes an effective sui generis plant variety protection system in the context of developing countries and its implications for Ethiopia's accession to the WTO.
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Effective sui generis system