Sui Generis plant variety protection systems: liability rules and non-UPOV systems of protection

Abstract

Due to the flexibility availed by the ambiguous wording of Article 27.3(b) of the World Trade Organization Agreement of Trade-Related Aspects of Intellectual Property Rights, a number of developing countries have expressed interest in the development of national sui generis plant variety protection (PVP) systems. Specifically, there appears to be growing interest in alternative approaches to exclusive property rights for incremental or ‘sub-patentable’ innovations. Many developing country policy makers have been pushed towards UPOV models of PVP. Sui generis systems have, however, already been developed in India and Thailand and are being implemented in parts. This article discusses the compensatory liability components of these laws as an alternative to exclusive property rights systems, while also noting the limitations with regards to respect of the cultural rights and customary norms of local or indigenous people. The article highlights options for developing country policy-makers in the form of ‘legal hybrids’ that utilize compensatory liability approaches alongside exclusive mechanisms of property rights and of prior informed consent.

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