IPRs, as seen as a contract between the inventor and society should respond to developments in the sector. IPR laws have thus changed over time, as have their interpretation. We will briefly describe the developments in UPOV and in the patent systems in the main jurisdictions.
The UPOV system of Plant variety protection has gone through three revisions: 1972, 1978 and 1991, especially in the two latter Acts gradually strengthening the rights for the breeder, and limiting those of farmers. This was in response to the needs of the breeding industry in the UPOV member countries when these acts were negotiated (mainly industrialised countries). The main changes in the 1991 Act are

1. a restriction of the ‘farmers privilege’ to seed produced and used in the same farm (outlawing sales and exchange of seed of protected varieties among farmers);
2. the possibility for the rights to extend to the harvested product but only if the breeder has not had a reasonable opportunity to get his right on the planting materials;
3. the introduction of the concept of ‘essentially derived varieties’ to limit the rights on new varieties after minor changes (cosmetic breeding, mutation, and modification)

Currently, a limitation of the breeding exemption is under discussion in the industry, for example through a ban of ten years on the use of a protected variety for further breeding. These changes, and in particular the limitation of the farmers’ privilege, is a stumbling block for developing countries to subscribe to the UPOV system.

More details about the difference of patent and UPOV systems



The TRIPS agreement does not prescribe that the UPOV system is the only ‘effective sui generis’ system. Various countries have developed their own models, most notably in order to combine the concepts of breeder’s rights and farmers’ rights in one legal framework (notably India, Thailand and the African Union). The concept of Farmers’ Rights stems from the International Undertaking on Plant genetic Resources for Food and Agriculture (IU PGRFA), which was transformed in a legally binding International Treaty (IT PGRFA). In these different models, different interpretation of the concept are included, notably the right of farmers to apply for protection on their own varieties (e.g. in Thailand different types of varieties may have different levels of protection) and the right of farmers to share in the benefits derived from the use of their genetic resources, e.g. through a national ‘gene fund’.