Intellectual Property in the WTO Volume I
Edited by Carlos M. Correa
Chapter 16: Exploring the Flexibilities of TRIPS to Promote Biotechnology in Developing Countries
1 Graham Dutfield, Lois Muraguri and Florian Leverve 1. Introduction The aim of this chapter is to provide some guidance on how to design patent rules that are optimal – within the confines of what the Traderelated Aspects of Intellectual Property Rights (TRIPS) Agreement allows – in terms of enabling developing countries to participate in the muchheralded ‘biotechnology revolution’ and to thereby benefit their economies and populaces. It finds that totally reliable guidance is not available from any available source. Nonetheless, evidence is available to offer some general rules of thumb for avoiding patent rule-making that would not benefit developing world economies and populaces in the ambit of biotechnology. According to TRIPS Article 27.1, ‘patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application’. Since biotechnology is obviously a field of technology, it is not possible to keep biotechnology out of the patent system altogether, whether or not to do so would be deemed as desirable. Nonetheless, it is important to understand that biotechnology is covered in the context of exclusions from patentability. Thus, Article 27.3(b) permits World Trade Organization (WTO) Members to exclude from patentability: plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or...
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