Time period for enacting sui generis laws on plant variety protection

Gurdial Singh Nijar contends that more time can, and should, be given to developing countries to provide sui generis protection for plant varieties under Article 27.3(b) of TRIPS/WTO.

THIS note suggests that on an interpretation of the provisions of the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of intellectual Property Rights (TRIPS), developing countries are entitled to more time to fulfil their obligation under Article 27.3(b) to provide for the protection of plant varieties.

1. More time is given by Article 65 (4) of the TRIPS Agreement

Article 65 (4) states that if a country is obliged to extend product patents to areas for the first time as at the date when the Agreement came into force, that is 15 April 1994, then it may delay the application of the provision for an additional period of five years. This is in addition to the period of five years and 11 years given to developing countries and least developed countries respectively under Article 65(1) and (2).

Countries can consider providing protection for plant varieties by patents. This is set out in Article 27.3(b) of TRIPS. The Union for the Protection of Plant Varieties (UPOV) 1991 also allows for protection by patents. This will be a product patent. So countries that are considering this as one of the options, need more time to set up their infrastructure, change of laws, etc. The transitional arrangements recognise this and provide for a further five years.

Four further points may be made:
a. There is an obligation to provide patent protection or some other form of protection for plant varieties under Article 27.3(b). Article 65(4) ['...a developing country member is obliged by the terms of this Agreement...'] is therefore satisfied.
b. There is no obligation under TRIPS to declare before the extended date for implementation that that is the option being considered, although this may be stated to the TRIPS Council if there is an enquiry by it.
c. There is no obligation to provide for plant protection by any other method before the extended date if protection by patents is being considered.
d. Will there be any sanctions if on the extended date, countries provide for protection of plant varieties by a system other than patents? This really depends upon whether this can be considered a violation of the TRIPS obligation.

A case can be made out that as the country was genuinely considering product patents, and this option is allowed under Article 27.3(b), there is no violation.

2. The five-year period should only commence when the review ends

(a) In any event, countries have been given five years to provide for protection of plant varieties. This is to give them sufficient time (five years) to put in place institutions, change laws, provide infrastructure, etc. However there is an obligatory review a year before the expiry of the five-year period. The review could, on one view especially as advanced by developing countries, result in an amendment or change of the obligation imposed by the Article. In that case countries would require the full 5-year transitional period after the end of the review to set up the required infrastructure etc as intended by Article 65 (headed 'transitional arrangements').
(b) The 'review' extends to a re-look at, and not merely implementation of, the Article. First, the Article could have, but does not, state that it is a review of the implementation of the Article. Another Article - 71 - of TRIPS states the limit of the review explicitly: 'shall review the implementation of'. The clear inference is that the review of subparagraph (b) of Article 27.3 was not intended to be so limited. Secondly, the review for the implementation of the Article started in June 1996. The WTO Annual report of 1998 states clearly that the review for implementation for developed countries started for developed countries after the date for these countries to comply with their obligations. They were required to comply by early 1996. The review started in June 1996 (at p. 102). The Report states that review of implementation may be considered in advance of the implementation date for other countries if other members consent. This implies that, the review referred to in the Article, could not be about implementation - as it simply does not make sense for a review about implementation to precede the implementation date! Further, as the review for implementation for developed countries started well before 1999 - the date for the review of the entire subparagraph must mean something different from a review of mere implementation.

3. There should be an extension of time in any event

Finally, for the reasons outlined above, there is a lack of clarity as to when the obligation to provide for plant variety protection is to begin, especially since a relook of the Article may result in its change or modification. As a result, countries should be given more time to implement their obligations.

Conclusion

a. Countries should be given a further five years from the end of the review period to implement a system for the protection of plant varieties.
b. Countries should be given a further five years from 2000 (i.e. until 2005) under Article 65(4) of the TRIPS agreement.
c. In any event there should be an extension of time of five years.

Gurdial Singh Nijar is a Malaysian lawyer and consultant to the Third World Network.