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Dutfield, Graham; Muraguri, Lois; Leverve, Florian --- "Exploring the Flexibilities of TRIPS to Promote Biotechnology in Developing Countries" [2010] ELECD 457; in Correa, M. Carlos (ed), "Research Handbook on the Protection of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Protection of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209047

Section: Chapter 16

Section Title: Exploring the Flexibilities of TRIPS to Promote Biotechnology in Developing Countries

Author(s): Dutfield, Graham; Muraguri, Lois; Leverve, Florian

Number of pages: 49

Extract:

16 Exploring the flexibilities of TRIPS to
promote biotechnology in developing
countries1
Graham Dutfield, Lois Muraguri and
Florian Leverve


1. Introduction
The aim of this chapter is to provide some guidance on how to design
patent rules that are optimal ­ within the confines of what the Trade-
related Aspects of Intellectual Property Rights (TRIPS) Agreement allows
­ in terms of enabling developing countries to participate in the much-
heralded `biotechnology revolution' and to thereby benefit their econo-
mies and populaces. It finds that totally reliable guidance is not available
from any available source. Nonetheless, evidence is available to offer
some general rules of thumb for avoiding patent rule-making that would
not benefit developing world economies and populaces in the ambit of
biotechnology.
According to TRIPS Article 27.1, `patents shall be available for any
inventions, whether products or processes, in all fields of technology, pro-
vided that they are new, involve an inventive step and are capable of indus-
trial application'. Since biotechnology is obviously a field of technology, it
is not possible to keep biotechnology out of the patent system altogether,
whether or not to do so would be deemed as desirable. Nonetheless, it is
important to understand that biotechnology is covered in the context of
exclusions from patentability. Thus, Article 27.3(b) permits World Trade
Organization (WTO) Members to exclude from patentability:

plants and animals other than micro-organisms, and essentially biological
processes for the production of plants or animals other than non-biological and
microbiological processes. ...