Breeding Exemption in Plants Under Intellectual Property Regimes

Abstract

Despite the aims of harmonisation under the General Agreement on Tariffs and Trade under its Trade Related Aspects of Intellectual Property Rights Agreement, and subsequent trade agreements, there are still non-harmonised aspects of many intellectual property regimes. Depending on jurisdiction, the plant breeding exemption, which allows breeders to use biological material protected under intellectual property regimes for creating new plant varieties, are handled in different ways. In some cases, such as China, the Plant Variety Protection Act provides for a breeding exemption, for any purpose, but the Patent Act’s research exemption does not extend to plants. This is in contrast to Australia where both patents and plant breeders protection hold a limited research exemption, but the patent exemption does not extend to breeding new varieties for commercial use. This paper explores the dimensions surrounding such exemptions, looking to China and Australia for different approaches, within the context of Free Trade Agreements. Some exemptions are available under the International Convention for the Protection of New Varieties of Plants 1991 (UPOV 1991), to which Australia is a party, and although this is a different version to UPOV 1978 to which China is a party, the breeding exemption is essentially preserved. Naturally, it is desirable to design a harmonised regime that promotes the development of new varieties, to maximise desirable outcomes for breeders, farmers and civil society as a whole, whilst allowing for needed jurisdictional differences. Notably, the Trans Pacific Partnership requires all members to sign up to UPOV 1991.