Status of patenting plants in the Global South: Position paper and research report
This report (PDF) of Oxfam, comprising a position paper and research report, aims to contribute to awareness and understanding of the current status of patenting of plants in developing countries and emerging economies, to inform societal discussion and decision-making. According to the research report, patent law has gradually been extended to cover plants and their parts and components. Patents are granted in many jurisdictions on the basis of claims relating to phenotypics and/or genotypic characteristics. The granting of patents may have significant implications for access to and use of seeds and other propagating materials. The presence of a patented component in a plant may create a barrier for further research and breeding, as well as prevent farmers from saving and re-using seeds that incorporate that component. The facultative exclusion for ‘plants’ under the TRIPS Agreement gives WTO members the possibility of denying patent protection to any plant. The study shows that plants are excluded from patentability only 40% of the 126 developing countries and emerging economies. So, the majority have not used the TRIPS flexibility. Legal provisions prescribing the non-patentability of discoveries may prevent protection of unmodified plant materials. The application of patentability has often led to the rejection of patent applications relating to plants. Overall, there is considerable diversity in legal status regarding the patentability of plants in countries of the Global South. Countries with broad coverage of patents should be encouraged to review their legislation and learn from the example of countries that have appropriately narrowed down the scope of patentability in this field. In the position paper Oxfam states to be concerned that the growing number of patents on plants will threaten food and nutrition security by blocking the free availability of these materials. Oxfam therefore promotes the implementation of Farmers’ Rights to save, use, exchange, and sell farm-saved seed, and the considerate use of plant breeders’ rights as an alternative to patents.