9 Effective Sui Generis Systems For The Protection Of New Varieties Of Plants

Abstract

This chapter analyzes the minimum requirements for plant variety protection as defined by Trade-Related Aspects of Intellectual Property Rights (TRIPS). It first analyzes the International Union for the Protection of New Varieties of Plants (UPOV), which is a recognized international system for the effective protection of plant varieties. UPOV 1978 establishes one maximum requirement, as Article 2.1 explicitly excludes double protection on plant varieties, and leaves the decision as to whether to grant patents on plant varieties to the States themselves. UPOV 1991 allows dual protection. Hence, both plant breeders’ rights and patent rights can be granted on a plant variety provided that the requirements for protection are met. The chapter then examines the specific requirements of an ‘effective sui generis system’ for plant varieties.Keywords: effective sui generis system; patent rights; plant varieties; TRIPS; UPOV