Robert Lettington (ICIPE, Kenya) [18 April] has suggested that developing countries should develop their own parallel patent systems that ensure that holders of patents using traditional cultivars recognize and compensate the developers of the cultivars. These systems must also address issues of community rights and stability of the innovation and consider all sectors so that the needs of research centres, companies and rural populations are taken into account.

The WTO Council on TRIPs met last October to review Trade Related Intellectual Property Rights (TRIPs). Article 27.3(b) of TRIPs calls for WTO Members to protect intellectual property over plant varieties either by patent or by an effective sui generis system or by a combination of both. Developing countries are under pressure to adopt the International Convention for the Protection of New Varieties of Plants (UPOV 1991) as the mechanism to fulfil their 27.3(b) obligations.

At the meeting, both the U.S. and India submitted papers on Article 27.3(b). The U.S. recommended a patent-based model, arguing that an effective intellectual property protection system has been beneficial in stimulating research and development (A UN study last year has however found that there is no evidence for this). The U.S. warned that any sui generis model for plant variety protection not modelled on UPOV-1991 would need to be looked at on a case-by-case basis.

India analysed the problems associated with handling intellectual property in traditional knowledge in India due to its strong oral tradition, as opposed to the developed countries' text-based tradition. India advised developing countries to wait before implementing a sui generis systems, as the only model offered so far was that of the developed countries. India's position was supported by many of the developing countries.

The EU argued that there is no conflict between TRIPs and Members' commitments under the UN Convention on Biodiversity (CBD). The CBD obliges its signatories (U.S. is a non-signatory) to respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities. The EU disagreed with India that traditional knowledge was within the scope of Article 27.3(b), and pointed out that the World Intellectual Property Organisation (WIPO) was currently working on this area.

This position was supported by developed countries, including Switzerland, Canada, Japan, Australia, and Korea. India has now developed its own sui generis system which protects its farmers' rights, the rights of holders of indigenous knowledge and has recognized extant varieties. In the light of the position taken by developed countries, it is likely that the Indian sui generis system will be opposed by developing [maybe this should be developED...Moderator] countries.

If a large developing country like India cannot withstand pressure from developed countries, there is no doubt that most small developing countries would be coerced into accepting UPOV-1991. Next week, UPOV-1991 will in fact be being "marketed" in Sri Lanka by UPOV assisted by our Intellectual Property Office and Department of Agriculture probably to ensure that we do not try to develop an alternative sui generis system.

So, while Robert Lettington's strategy is no doubt what is best for developing countries, it would appear this is a luxury not permitted to developing countries by the developed world.

Dr. Vijaya Kumar
Senior Professor and Head
Department of Chemistry,
University of Peradeniya,
Peradeniya, SRI LANKA
Phone: +94-8-389129, +94-77-801184
Fax: +94-8-389939
e-mail; vkumar@mail.ac.lk

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