Article 27(3)b adds one more layer of complexity concerning plant varieties. The question of plant variety protection is only one of many issues related to life patenting but it is of special interest. This is due to the fact that the lack of consensus led to the following statement: ‘Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof'³⁰. This implies an obligation to introduce IPR for plant varieties but does not impose patents as the only form of protection. In fact, the expression sui generis indicates that no specific type of IPR is favoured. This is a significant exception in the TRIPS Agreement, which generally includes specific commitments that do not leave much room for differentiation. Plant variety protection is, therefore, one of the few provisions where action is required on the part of all states but where developing countries get a chance to implement the provision in a way that suits their interests in this specific field and related areas. The provision of Article 27(3)b concerning plant variety protection was not specifically drafted with the needs of developing countries in mind, but the lack of specificity allows developing countries significant scope to introduce an alternative plant variety protection system which, for instance, incorporates farmers' rights³¹. This provision is significant because agriculture remains extremely important in many developing countries and a fundamental mainstay of the economies of all least developed countries. It is also important because it could constitute a model towards a revised TRIPS Agreement incorporating more, and more specific, differential treatment in favour of developing countries.

Apart from general exceptions to patentability, some temporary exceptions were also granted. One such exception allowed countries like India to retain specific exclusions to product patentability for ten years after the entry into the TRIPS Agreement. This covered, for instance, the case of product patents in the pharmaceutical sectors, which did not have to be introduced before January 1, 2005³⁵. Some conditions were, however, attached to this exclusion. First, the extra time could not be used to change laws in a way that would have taken India further away from compliance, for instance, by introducing further restrictions on patentability during the transition period ³⁶. Secondly, in the case of restrictions on pharmaceutical and agricultural chemical products, countries could delay the introduction of product patents but had to introduce a means for allowing the filing of applications for patents on such inventions. They also had to apply the criteria for patentability of the TRIPS Agreement and had to provide patent protection for the remainder of the patent term as of 1 January 2005. Further, in the intervening period, patents applicants were to be granted exclusive marketing rights.

Notes and References

³⁰ Article 27(3)b, TRIPS Agreement.
³¹ The concept of farmers' rights was developed partly in reaction to the introduction of IPR in agriculture. Farmers' rights are, therefore, closely linked to patents and plant breeders' rights. However, due to a lack of consensus among states, the concept is still being developed at the international level and the limited recognition at the international level does not include the rights of farmers over their intellectual assets. Historically, the concept of farmers' rights arose as a result of international debates on the asymmetric benefits dervied by donors of plant genetic resources and donors of technology, as well as the lower status ascribed to farmers' activities compared to commercial plant breeding. While commercial plant breeding was increasingly benefiting from the protection offered by plant breeders' rights or other IPR, there was no system of compensation or incentives for farmers (Esquinas-Alcazar 1996). The basic premise for the introduction of farmers' rights was the creation of incentives for the equitable sharing of benefits arising from the use of plant genetic resources and for the sustainable use and conservation of these resources.
³⁵ Article 65(4), TRIPS Agreement.
³⁶ Article 65(5), TRIPS Agreement.