Sui Generis Systems in the Context of ABS/TK

Manuel Ruiz Muller

Peruvian Society for Environmental Law (SPDA)

Scope of these sui generis systems

• Protection of innovations regarding genetic resources (ie. seeds)

• Protection of knowledge, innovations and practices (traditional knowledge) of indigenous peoples and communities (mostly related to biodiversity)

Sui generis ?

• Rather than a sui generis regime we may need to think about different sui generis regimes, systems, or forms of protection (approaches) for genetic resources and TK adapted to national, regional and international circumstances and needs

Protection ?

• Compensation

• Control

• Exclusion of third non authorized parties

• Maintenance and preservation

• Dissemination

• Other objectives …

A sui generis system in the TRIPS Agreement

3. Members may also exclude from patentability:... (b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.

Examples of sui generis regimes

• The Union for the Protection of New Plant Varieties (UPOV) – early 1960´s … – Protection of plant varieties that are new, distinct,

stable, uniform

– Gives the breeder the right to impede unauthorized use, commercialization, importation, sale, etc. of the protected variety

– Acts of 1961, 1978, 1991

– Limitations to the Breeders Exemption and the Farmers Exemption (left to national legislation)

Examples of sui generis regimes

• The FAO International Treaty on Plant Genetic Resources (2001)

– The CDB and Annex 3 … pending issues Farmers Rights, ex situ collections, etc.

– The Multilateral System for ABS - SMTA

– Farmers Rights

• Protection of TK related to PGRFA

• Participation in processes related to ABS and TK

• Participation in benefit sharing

• Safeguarding the right to save seed (respecting IP rights)

Elements to consider

• Farmers Rights are to implemented at the national level (FAO IT)

• Farmers Rights (at the national level) may involve other rights (and other measures): i.e. rights to land, biodiversity registers, seed laws, biocultural and community protocols

Examples of sui generis regimes

• The Nagoya Protocol on Access and Benefit Sharing (2010) and national/regional ABS regimes (Andean Community Decision 391, Philippines EO 247, OAU Model Law, etc.)

– Balance between facilitating access and controlling use of genetic resources

– Benefit sharing provisions (compensation)

– Recognition of TK

Examples of sui generis regimes

• Law 27811, for the Protection of Collective Knowledge of Indigenous Peoples Related to Biodiversity (Peru, 2001) – Contracts (licenses)

– Recognition of customary law for decision making by representative organizations

– Registers

– Trade secrets and unfair competition principles

– Indigenous People Compensation Fund

Examples of sui generis regimes

• Law 20, for the Protection of Traditional Knowledge (Panama, 2000)

– Customary practices and decision making

– Registers for innovations, arts, crafts, textile designs, dances

– Recognition limited to Panama

Examples of sui generis regimes

• Defensive protection

– Part of a “user measures” strategies (recognized in the CBD Bonn Guidelines and Nagoya Protocol)

– Using the IP (patent and Plant Breeders Right system) to “protect” countries and communities interests over their genetic resources and TK

– Granting rights will be conditioned to complying with national ABS and TK legislation and frameworks

THANK YOU !

Aamesege'nallo' !