TRIPS Article 27.3(b) requires Members to provide IPRs for plant varieties either by patents or by an effective sui generis system. The UPOV Convention and the CBD are alternative models for sui generis IPRs, though not the only alternatives. The CBD emphasizes the rights of countries to control access to genetic resources and to protect traditional knowledge, but is flexible regarding how that is done. One way to protect traditional knowledge is via a registry, which can then serve as evidence that the products derived from traditional knowledge are not new inventions and therefore not patentable nor susceptible to IPR protection under the UPOV Convention.
In essence, the CBD and the UPOV Convention set out competing visions of what is the most appropriate form of protection for plant IPRs. TRIPS Article 27.3(b) reflects the lack of consensus on this issue, just as the CBD and the UPOV Convention do. Some WTO Members have already limited their options, by choosing the 1978 or 1991 version of the UPOV Convention, or by entering into Free Trade Agreements in which they agree to adopt one of these versions of the UPOV Convention. Others have implemented a CBD-based model for plant IPRs. The CBD, with less strict obligations and more flexibility than the UPOV Convention, leaves countries with more options should they wish to change their national system in future.
While the UPOV Convention sets out clearer, more binding obligations than CBD, either can serve as a model for national policy regarding plant IPRs. The real issue is which model Members will choose to follow and why, since they can implement a mandatory scheme at the national level, regardless of whether CBD is mandatory. It is beyond the scope of this chapter to determine whether UPOV or
CBD will better serve the goal of food security in the varying national contexts. It may be that UPOV suits countries with large investments in biotechnology, through their multinational firms or public vehicles. It may be that CBD better suits mega-diverse countries with important stores of traditional knowledge. It may be that some other sui generis system better suits developing countries with large numbers of subsistence farmers and greater susceptibility to climate change. It may be that one size does not fit all. However, the focus of this chapter is on understanding the nature of the obligations in TRIPS Article 27.3 and the relationship between WTO law, UPOV, and CBD so that each country can make a more informed decision in light of its own circumstances.
Climate change, technological change, and economic change are converging to make current intellectual property laws, and current debates regarding IPRs and access to technology, obsolete. In this environment, making the right policy choices is increasingly difficult. The right of WTO Members to choose between patents, the UPOV Convention, or some other form of sui generis intellectual property protection for new plant varieties provides the flexibility that is necessary to adapt policies as climate change alters the environment. Moreover, the flexibility inherent in Article 27.3(b) facilitates avoiding conflicts between TRIPS obligations and the obligations contained in other instruments, such as the UPOV Convention and the CBD. Thus, the impasse in the negotiations under Article 27.3(b) may prove to be a good thing. Indeed, the impasse itself may be a sign that reducing existing flexibilities through the adoption of a new multilateral regime is not the best course of action.
-  Cottier and Panizzon, “Legal Perspectives on Traditional Knowledge.