The TRIPS agreement has initiated the development of legal protection systems for plant varieties by several developing countries. Most international discussions on this issue fully concentrate on the legal issues. It can be argued, however, that more emphasis is needed on the institutional options, technical issues and commercial aspects of plant variety protection, including the costs involved for governments and other stakeholders.

Countries have to deal with the pressure of TRIPS to provide for protection and the advantages of complying with an internationally harmonised system, and with the need to develop a system that optimally serves the need for the protection to stimulate innovation in the national context.

Design and Implementation of IPR Regimes to Support Plant Breeding in Developing Countries

Legal issues concentrate around the balance between the rights and obligations of breeders and farmers, and in creating a mutually reinforcing system of national regulatory systems derived from the TRIPs Agreement, the Convention on Biological Diversity (CBD), and the International Treaty on Plant Genetic Resources for Agriculture (see Part 2-2: "Traditional Knowledge"). Most countries conclude that the patent system is not suitable for developing countries to protect plant varieties. The UPOV-system deserves close attention, but several developing countries have opted for the example of the 1978 Convention and as a result have not joined the organisation.

But even if a government confines itself to PVP, there are considerable institutional considerations that have to be dealt with, such as the placement of a PVP-office in the Ministry of Agriculture or in the patent office. Furthermore, decisions have to be made as to what extent the government has to be involved in the testing of the new varieties. Independence of the testing process, human and technical resources within public institutions, the capacities of the breeder/applicant and the courts system, and possibilities for international cooperation, are key issues to be examined. Capacity building has to accompany the development of an effective crop improvement system. This involves breeders, seed producers, farmers and their advisers (extension), and lawyers and judges.

They will play an increasingly prominent part in the plant breeding industry of developing countries by providing economic incentives for more productive commercial research and seed provision. At the same time, it is important to recognize that IPRs can only be justified by their contribution to the welfare of a society, i.e when the benefits of stimulating research outweighs the benefits of having knowledge in the public domain. IPR regimes in plant breeding must therefore be seen as part of a wider strategy for developing an efficient and equitable agricultural sector. Since IPRs need to respond to the needs of the commercial seed sectors, the shape and extend of the rights may have to differ between countries, and possibly between subsectors within agriculture. Even though there are some clear advantages of regional or global harmonisation, IPRs remain national in their scope and objectives.
Many patented technologies are not protected in most developing countries. Since most commodities in developing countries are traded in regional markets and rarely reach the North, there may be considerable opportunities for the use of protected technology without fear of breaching rights.

The main reason for the expansion of plant breeder’s rights to many countries is that in developing countries even more so than in the industrialised world, traditional ways of handling seed are important and even promoted. During the Green Revolution a major effort was put in the so-called lateral spread systems, to promote the use of new varieties as seed by less commercial farmers than as food by the early adopters. Such practices would be outlawed when such varieties would be patented (i.e. during the 20 year period of protection). However, also within UPOV the rules have been tightened and the latest Act (of 1991) also outlaws exchange of seed, and only provides for a possibility of re-using farm-saved seed within the same farm.

There are no simple rules that can be applied for the implementation of IPRs, and IPR implementers and users will have to learn from their own, and others’ experience. Whether IPRs can stimulate research in the public sector remains to be seen. Generally speaking the ‘promise’ of IPR is to generate income for the institution and the science group that produces something new, and/or allowing them to use the IPR as a bargaining chip in negotiating access to (private) technologies or research funding. However, IPRs may lead institutions away from their public ask, and public institutions commonly have problems developing the commercial and bargaining capacities to optimally use IPRs.

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In developing countries, one can now discern different lobbies in favour of IPRs in agriculture:

1. A business lobby:
   Internationally operating breeders having either seed production or crop production in developing countries, support countries to introduce an internationally harmonised IPRs. Producers in developing countries that are involved in export crops, such as soybean, fruit and especially ornamentals, have an interest in accepting these legal requirements. Varieties in export horticulture are seldom bred domestically. They are normally obtained from the foreign crop development industry and subsequently propagated locally. The cultivators of these export crops have therefore been the main domestic advocates of legal plant protection in a number of developing countries.


2. A trade lobby:
   IPRs are promoted as part of a greater lobby of the industry, particularly multinational, during international trade negotiations. IPRs in agriculture are just part of a bigger deal. In the 1980s, it was realized that economic growth greatly relied on the innovative potential of knowledge-intensive industries (based on computer technology, new materials and biotechnology). The protection of this knowledge as intellectual property was considered a strategic element in the defence both of the domestic industry and of the competitiveness of the national economy. In this way, IPRs have become trade issues and not primarily tools to stimulate innovation, which is the basic function of IPRs.


3. A public sector lobby:
   Breeders at national research institutes see opportunities to sustain their operations. General policies to reduce public expenditures affect public institutes for agricultural research quite severely. In the USA, such public institutes and universities are stimulated to protect their inventions, and also in developing countries, breeders see a great opportunity to regain their budgets. They particularly lobby for the protection of existing plant varieties as a kind of transitory measure, in order to immediately be able to capture a major part of the market

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