Third World entitled to more time for plant protection

Gurdial Singh Nijar*

Penang May 18 (TWN) -- Developing countries are being bombarded by a barrage of advice from a variety of sources to adopt laws and regulations to provide protection for plant varieties under Art. 27 (3)(b) of the TRIPS agreement, and do this by end 1999, even before the mandated review of the provisions are taken up and completed.

Article 27(3)(b) requires developing countries to provide sui generis protection for plant varieties, if they do not provide patents as such.

A proper reading of the various parts of the TRIPS agreement, and a reasonable interpretation of the provisions suggest that developing countries are entitled to more time to fulfil their obligation under Article 27(3)(b) to provide for the protection of plant varieties.

Article 65 (4) of TRIPS states that if a country is obliged to extend product patent to areas for the first time as at the date when the Agreement came into force, 1 January 1995, then it may delay the application of the provision for an additional period of 5 years.

This is in addition to the period of 5 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. 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 5 years.

Four further points may be made :

* 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 says that to the extent a developing country is obliged by this agreement to extend product patent protection to areas of technology not so protectable on its territory on the general date of application of this agreement, as defined in Art. 65.2 (i.e.1 Jan 2000), it may delay the application of the provision on product patents of Section 5 of Part II of TRIPS to such areas of technology for a further period of five years.

The test of being "obliged" to provide a patent by a developing country member is thus satisfied.

* There is no obligation under TRIPS to declare before the extended date for implementation that is the option being considered, although this may be stated to the TRIPS Council if there is an enquiry by it.

* There is no obligation to provide for plant protection by any other method before the extended date if protection by patents is being considered.

* Will there be any sanctions if on the extended date, countries provide for protection of plant varieties by a system other than patent? 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.

The 5-year period should only commence when the review ends.

(a) In any event, countries have been given 5 years to provide for protection of plant varieties. This is to give them sufficient time (5 years) to put in place institutions, change laws, provide infrastructure, etc. However there is an obligatory review a year before the expiry of the 5-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. Firstly, The view (being advanced by the US and EC) that the Art 27.3.b review is only about implementation does not even make sense for it would mean dealing with the implementation of a provision a year before its implementation date.

Secondly, the Article could have, but does not state that the review is about implementation. Another article, 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.

There should be an extension of time in any event.

Finally, for these reasons outlined above, there is a lack of clarity as to when the obligation to provide for plant variety protection is to begin. As a result, countries should be given more time to implement their obligations.

Countries should be given a further 5 years from the end of the review period to implement a system for the protection of plant varieties.

Countries should be given a further 5 years from 2000 (i.e. until 2005) under Article 65(4) of the TRIPS agreement. In any event there should be an extension of time of 5 years. (SUNS4437)

(* Gurdial Singh Nijar is a senior practising lawyer in Malaysia and Legal Advisor to the Third World Network.)

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