Plant Variety Protection Under International Intellectual Property Laws And National Laws With Special Emphasis On Sudan And India

Abstract

The international legal framework for the protection of plant varieties is controversial. This thesis traces the historical development and the nature of plant variety protection. It argues that the United States’ legal system protects plant varieties either by the patent system or by the certificate of protection. The European Union’s legal system excludes individual plant varieties from the patent system. The UPOV system grants individual plant breeder who breeds or discovers and develops a new plant variety, special regime of protection, namely, plant variety protection or plant breeders’ rights. As a result of the latest revision of the UPOV Convention, the patent and plant variety protection systems are no longer mutually exclusive. The International Treaty on Plant Genetic Resources for Food and Agriculture focuses on farmers’ rights. The Convention on Biological Diversity provides that States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner. The Agreement on Trade-related Aspects of Intellectual Property Rights requires member States to protect plant varieties either by patents or by an effective sui generis system or by any combination thereof. The African Model Legislation provides for the protection of the rights of local communities, farmers’ rights and plant breeders’ rights. The thesis argues that although the subject matter under plant variety protection system is the plant variety itself the definition of the term “plant variety” under the various legal systems examined in this research is controversial. Furthermore, it examines novelty, distinctiveness, uniformity and stability, as they comprise the four substantive conditions for the grant of protection. Further the thesis considers the persons entitled to protection and concludes that the breeder is the person who bred or discovered and developed the variety. The Indian law considers the farmer, group of farmers or any xiii village or local community who contribute in the evolution of a variety as breeders. The thesis argues that the international legislators restrict the scope of plant breeders’ rights by reference to the commercial propagation of the variety. The thesis examines acts relating to the production or propagation of the variety for non-commercial purposes as limitations to the rights conferred. Also the thesis discusses the implementation and enforcement of the international intellectual property obligations relating to plant variety protection and the institutional mechanisms for their implementation and enforcement. It concludes that the implementation and enforcement of these obligations shall take into consideration the particular needs of the country. Finally the thesis suggests the issuance a sui generis legislation on plant variety protection that incorporates plant breeders’ rights, farmers’ rights, and the intellectual property rights of local communities.