chapter  8
30 Pages

Plant Variety Protection: UPOV, Community, Directive

The Strasbourg Convention 1963 established a patent system essentially universal in character. However, as already noted,1 some exceptions to patentability, including plant varieties, were permitted under Article 2 thereof. The rationale underlying the exceptions is that plant varieties are best protected by specific national legislation, or, alternatively, by virtue of the International Union for the Protection of New Varieties of Plants (UPOV) Convention 1961. There was also a desire among states not to interfere with agricultural or horticultural cross-breeding processes, and the limitation on patenting was extended to essentially biological processes for the production of plants and animals. This reflected states’ practice and was the intention of the drafters at Strasbourg. The result of the Strasbourg Convention was that rights became available to inventors on a set of uniform (if not clearly defined) principles. The logic of Article 2 Strasbourg was extended in Article 53 of the European Patent Convention (henceforth EPC) to include animal varieties. As already noted,2 difficulties with the provision include that Article 53(b) constitutes an exception to the general provision of Article 52 EPC outlining patentability criteria. Since EPO jurisprudence is unclear in respect of what is unprotectable by virtue of Article 53 EPC,3 and because under the revised UPOV Convention 1991 certain plant varieties are not eligible for protection, some life forms are without any protection. This situation needs to be remedied.