Article 27.3, point b), of the ON TRIPS Agreement, deals with the patentability or inseableness of plant and animal inventions and the protection of plant varieties. Overall, the TRIPS agreement states that any invention, whether a product or a process, can be patented in all technological areas, provided it is new, incisive, inventive and likely to be used for commercial purposes. However, in accordance with Article 27.3, point b), members may exclude from the patentability of plants and animals other than microorganisms and essentially biological processes of plant or animal production, with the exception of non-biological and microbiological methods. However, members provide for the protection of plant varieties either through patents, an effective sui generis system, or by any combination of them. Relationship between the TRIPS Agreement and the Convention on Biological Diversity – summary of the issues raised and the points raised (IP/C/W/368/Rev.1 and Corr.1). It reviews relevant documents submitted to the TRIPS Council on three items on its agenda: the revision of the provisions of Article 27.3 (b); The relationship between the TRIPS Convention and the Convention on Biological Diversity; and the protection of traditional knowledge and folklore. It lists all relevant documents submitted to the Commission from 1999 to 1996. The issue of the patentability of genetic materials and the Convention on Biological Diversity is also addressed. The TRIPS agreement allowed members to exclude from patentability inventions for which commercial exploitation under a patent regime could seriously harm public order or morality, including the protection of human, animal or plant or health life, and the protection of the environment. It allows members to ensure the protection of plant varieties either through patents, an effective sui generis system, or by any combination of these varieties. Flexibility in the choice of protection system appears to meet the needs and expectations of developing countries, for which living organisms or natural resources should not be patented.
However, a close examination of the agreement reveals discrepancies and contradictions in what may be excluded from the scope of the patent. The TRIPS agreement excluded plants and animals from patentability, while maintaining “microorganisms” and “microbiological” methods of producing plants or animals under the same patent regime. This step has emptied the sui generis system from its quintessence and vulnerable small farmers, whose practice of saving, sharing and/or replanting seeds is etched in a long intergenerational tradition. More importantly, smallholder farmers representing the primary labour force in developing countries are at greater risk than ever, especially at a time when extraterritorial patent protection is being applied and monitored under the TRIPS agreement. India has adopted the protection of plant varieties and the rights of farmers, in accordance with the requirements of the ON TRIPS agreement for the protection of plant varieties.