Legal obligations under art 273 of TRIPS

The WTO Secretariat document reviewing art. 27.3(b) appreciates the differences in member's opinions on the PBRs issue. Consequently, according to art. 2 7.3(b) of TRIPS: '[M]embers shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.' Thus, the article obligates members to effectively protect plants without setting substantive standards for such protection. By leaving the term 'plant variety' undefined, TRIPS implies effective protection of all plant varieties. The effective protection can be made by any one of the regimes mentioned in art. 27.3 of TRIPS, being patents, or a sui generis mechanism or a combination of both patents and the sui generis mechanism (TRIPS, 1994, art. 2 7.3). TRIPS generally establishes minimum standards of protection, but, vis-à-vis plant varieties, it merely requires countries to provide any one of the three broad forms of the outlined protections. Thus, art. 27.3 is unique in not harmonizing the plant variety regime. Harmonization requires a certain degree of uniformity that would be impossible to achieve considering the flexibilities embedded in the article. The highlight of art. 27.3 of TRIPS is the flexibility that provides members the luxury of determining appropriate national PVP regimes. In doing so, art. 2 7.3 accommodates national priorities in protecting plant varieties (Halewood, 1999; Bodeker, 2003). It enables countries that question the assertions of developed nations on the benefits of PBRs or, alternatively, the applicability of the studies conducted elsewhere to their national conditions, to tailor a protection regime for plant varieties based on national requirements.

Further flexibility in the art. 27.3 language can be found in the use of the expression 'an effective sui generis' system (as opposed to 'the effective'). The language allows nations to determine the type of sui generis system to protect plants (Halewood, 1999; Bodeker, 2003). Moreover, the sui generis option allows countries to promote innovative plant breeding while preserving genetic biodiversity and traditional forms of farming. The TRIPS requirements for PVP would be satisfied if the national systems for PVP possess characteristics that generally apply for protecting real property (Council for TRIPS, 2002). Thus, TRIPS does not harmonize PVP, but merely requires that one of the article's broad forms of protection covers plant varieties.

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