Patents and Plant Breeder's Rights over Plant Genetic Resources for Food and Agriculture

Date01 March 2004
Published date01 March 2004
AuthorCharles Lawson
DOI10.22145/flr.32.1.5
Subject MatterArticle
PATENTS AND PLANT BREEDER'S RIGHTS OVER PLANT
GENETIC RESOURCES FOR FOOD AND AGRICULTURE
Charles Lawson*
1 INTRODUCTION
Recognising the importance of species diversity in conserving and exploiting plant
genetic resources for food and agriculture, international and domestic arrangements
have attempted over the decades in situ conservation, ex situ germplasm collections
and germplasm exchange mechanisms.1 These initiatives established valuable
resources for the development of new crop and forage plant varieties but there were no
uniform or binding arrangements for conserving and accessing these resources. A
more formal and uniform arrangement to both facilitate the conservation and exchange
of some crop and forage plant genetic materials and share the benefits is now
addressed in the International Treaty on Plant Genetic Resources for Food and Agriculture
('PGRFA Treaty').2 The Food and Agriculture Organization of the United Nations
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* Charles Lawson, Australian Centre for Intellectual Property in Agriculture, School of Law,
Griffith University, Nathan QLD. While I accept all responsibility for this work, I
appreciate the guidance and suggestions from the anonymous referees. This work was
supported by an Australian Research Council grant to research 'Gene Patents in Australia:
Options for Reform'.
1 For a summary of these measures see Conference of the Parties to the Convention on
Biological Diversity, Progress Under the FAO Global System for the Conservation and
Sustainable Utilization of Plant Genetic Resources for Food and Agriculture,
UNEP/CBD/COP/3/15 (1996); Conference of the Parties to the Convention on Biological
Diversity, FAO Global System for Plant Genetic Resources for Food and Agriculture,
UNEP/CBD/COP/2/18 (1995).
2 Opened for signature 3 November 2001, [2002] ATNIF 14 (not yet in force); '[t]he
Government proposes to deposit Australia's instrument of ratification as soon as
practicable after the end of the tabling period': International Treaty on Plant Genetic Resources
for Food and Agriculture, National Interest Analysis (2002) [4] (tabled in the House of
Representatives on 3 December 2002); although note that the Parliament's response has not
yet been finalised: 'The committee has informed the Minister for Foreign Affairs and the
Minister for Agriculture, Fisheries and Forestry that additional time is required beyond the
usual 20 sitting day period to consider the proposed treaty action. The additional time will
allow the committee to consider concerns raised by key industry stakeholders, such as the
Grains Council and Seed Industry Association of Australia, on the detailed financial,
technical and policy implications of ratifying the [PGRFA T]reaty': Commonwealth,
Parliamentary Debates, House of Representatives, 25 March 2003, 13 474 (Julie Bishop MP).
108 Federal Law Review Volume 32
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('FAO') adopted the PGRFA Treaty in 2001, although it has not yet entered into force.3
A separate and distinct PGRFA Treaty was the culmination of the re-negotiation of the
United Nations' International Undertaking on Plant Genetic Resources for Food and
Agriculture4 recognising 'the special nature of agricultural biodiversity, its distinctive
features and problems needing distinctive solutions'.5
The PGRFA Treaty followed other related legally binding international agreements
dealing with plant genetic materials generally and the various rights to access these
materials and importantly, the protection of potential intellectual property rights over
those materials.6 These agreements include:
(a) The United Nations' Convention on Biological Diversity ('CBD')7
establishing, in part, a scheme for the conservation of biological
diversity,8 its sustainable use and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources, including by
appropriate access to genetic resources and respect for intellectual
property rights;9 and
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3 Adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture and
Interim Arrangements for its Implementation, Res 3, UN FAO, 31st sess, conf (2001); see also
Conference of the United Nations Food and Agriculture Organization, International
Undertaking on Plant Genetic Resources for Food and Agriculture, C 2001/16 (2001); the PGRFA
Treaty enters into force after the fortieth instrument of ratification, acceptance, approval or
accession is deposited, at least twenty being from FAO members (art 28(1)); countries have
agreed to continue inviting ratification: see, eg, 'Plan of Implementation of the World
Summit on Sustainable Development', UN Report of the World Summit on Sustainable
Development (2002) 6, 31 [40q].
4 International Undertaking on Plant Genetic Resources, Res 8, UN FAO, 22nd sess, conf (1983);
agreed interpretations were subsequently adopted in 1989 (Agreed Interpretation of the
International Undertaking, Res 4, UN FAO, 25th sess, conf (1989) and Farmer’s Rights, Res 5,
UN FAO, 25th sess, conf (1989)) and in 1991 (Res 3, UN FAO, 26th sess, conf (1991)) and
annexed to the Undertaking.
5 Conference of the Parties to the Convention on Biological Diversity, FAO Global System for
the Conservation and Utilization of Plant Genetic Resources for Food and Agriculture, Decision
II/15, UNEP/CBD/COP/2/19 (1995) 26.
6 A useful statement of the applicable laws and policy issues relating to agriculture and
under consideration in international fora are discussed in Michael Blakeney, 'Access to
Genetic Resources, Gene-Based Inventions and Agriculture' (Study Paper No 3b,
Commission on Intellectual Property Rights, 2002); Dwijen Rangnekar, 'Access to Genetic
Resources, Gene-Based Inventions and Agriculture' (Study Paper No 3a, Commission on
Intellectual Property Rights, 2002).
7 Opened for signature 5 June 1992, [1993] ATS 32 (entered into force generally and for
Australia on 29 December 1993).
8 Biological diversity may be considered at three levels, genetic diversity, species diversity
and ecosystem diversity: see Commonwealth Department of the Environment, Sport and
Territories, National Strategy for the Conservation of Australia's Biological Diversity (1996) 1.
9 Aspects of the CBD are included in domestic Australian legislation as the Environment
Protection and Biodiversity Conservation Act 1999 (Cth), with access to genetic resources
addressed in s 301; although there are a number of other laws that affect various other
aspects of access: see, eg, Wildlife Protection (Regulation of Exports and Imports) Act 1982
(Cth), Customs (Prohibited Exports) Regulations 1958 (Cth).
2004 Patents and Plant Breeder's Rights over Plant Genetic Resources 109
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(b) The World Trade Organization's ('WTO') Agreement on Trade-Related
Aspects of Intellectual Property Rights ('TRIPS')10 setting, in part,
minimum standards for patents and a sui generis scheme for plant
inventions, now reflected in domestic Australian legislation as
'exclusive rights' under the Patents Act 1990 (Cth) ('Patents Act')11 and
the Plant Breeder's Rights Act 1994 (Cth) ('Plant Breeder's Rights Act').12
The place of intellectual property rights is central to economic theory about
allocating the scarce resources necessary to both conserve and efficiently exploit plant
genetic resources for food and agriculture,13 with an assumption of overall economic
benefit while at the same time having minimal social costs.14 Theoretically these
intellectual property rights compensate for the disincentive to innovate with a limited
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10 Marrakesh Agreement Establishing the World Trade Organisation [1995] ATS 8, Annex 1C
(entered into force generally and for Australia 1 January 1995).
11 The Patents (World Trade Organization Amendments) Act 1994 (Cth) amended the Patents Act
1990 (Cth) to be consistent with TRIPS by extending the patent term to 20 years, onus
requirements for infringement proceedings, compulsory licenses and Commonwealth and
State use of a patent; the statutory 'exclusive rights' under the Patents Act are, 'during the
term of the patent, to exploit the invention and to authorise another person to exploit the
invention' (Patents Act 1990 (Cth) s 13(1)); these rights are 'personal property' that is
'capable of assignment and of devolution by law' (Patents Act 1990 (Cth) s 13(2)); the term
'exploit', 'in relation to an invention, includes: (a) where the invention is a product — make,
hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose
of it, use or import it, or keep it for the purpose of doing any of those things; or (b) where
the invention is a method or process — use the method or process or do any act mentioned
in paragraph (a) in respect of a product resulting from such use': Patents Act 1990 (Cth) sch
1.
12 The Plant Breeder's Rights Act 1994 (Cth) implements the International Convention for the
Protection of New Varieties of Plants, opened for signature 19 March 1991, [2000] ATS 6
(entered into force generally 24 April 1998 and for Australia 20 January 2000) (based on 2
December 1961 agreement, as revised 10 November 1972 and 23 October 1978); the
statutory 'exclusive rights' under the Plant Breeder's Rights Act 1994 (Cth) are 'to do, or to
license another person to do, the following acts in relation to propagating material of the
variety: (a) produce or reproduce the material; (b) condition the material for the purpose of
propagation; (c) offer the material for sale; (d) sell the material; (e) import the material; (f)
export the material; (g) stock the material for the purposes described in paragraph (a), (b),
(c), (d), (e) or (f)' (s 11), except private and non-commercial purpose acts (s 16(a)),
experimental purposes (s 16(b)), the breeding of other plant varieties (s 16(c)) and
conditioning for 'reproductive purposes' or reproduction (such as farm saved seeds): s 17.
13 This is an ongoing debate between at least two different views about the benefits of
intellectual property rights: one view emphasises the need for more intellectual property
rights to encourage more innovation, and the contrary 'monopoly distortions' view
emphasises the costs of intellectual property rights as extracting too high a cost through
monopoly distortion in the market; see generally Peter Drahos with John Braithwaite,
Information Feudalism: Who Owns the Knowledge Economy? (2002); Christopher May, A Global
Political Economy of Intellectual Property Rights: The New Enclosures (2000); Jay Kesan,
'Intellectual Property Protection and Agricultural Biotechnology: A Multidisciplinary
Perspective' (2000) 44 American Behavioural Scientist 464.
14 The social costs are higher prices, restricted outputs, subsidised foreign inventors and the
administrative costs of the schemes: see, eg, Industrial Property Advisory Committee,
Patents, Innovation and Competition in Australia: A Report to the Hon Barry O Jones MP
Minister for Science and Technology (1984) 13.

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