Sui generis protection of biotech serves better than current IP regimes

A very brief account of the development of mainstream intellectual property law as it relates to genetic resources will be outlined in this section. This summary will provide a useful context within which to appraise the potential significance of the protection of indigenous knowledge. It will also serve as an introduction to a few anomalous aspects of intellectual property law that might provide openings for, or complement, efforts to create new systems for the protection of indigenous and local knowledge.     In the case of genetic resource management, three factors--technological capacity, market demand, and intellectual property protection--have developed in close association over the course of the last sixty years. During that period, it is possible to concurrently trace the evolution of these three factors through three fundamental shifts in focus: (i) asexual flower breeding; (ii) improved cross-breeding of sexually producing crop plants; and (iii) biotechnical manipulation of plant parts and microbes.     International and domestic intellectual property laws have shifted to accommodate and protect these evolving technologies and markets. For example, the United States Plant Patent Act(FN22) extended protection only to asexually reproducing plants. Similarly, the first international agreement to countenance the subject of plant-related intellectual property law--an amendment to the Paris Convention for the Protection of Industrial Property(FN23) at the London Conference in 1934(FN24)--extended recognition to breeding efforts concerning asexually reproducing flowers. Subsequent domestic legislation and international conventions extended protection to improved varieties of sexually producing plants. The legal protection in these cases had to be sui generis protections because plant varieties could not qualify for generic plant protection since industrial plant breeding activities could not meet the standard patent law criterion of novelty and non-obviousness, and because it was impossible to disclose in writing the nature of plant breeding innovations.(FN25) New and somewhat more lax criteria for the protection of plant varieties had to be created to protect the plant-breeding industry, market, and technologies. The new requirements were that the new varieties had to be distinct, uniform, and stable.(FN26)     More recently, advances in biotechnology have made it possible to engineer new plant varieties (and other biologically based "inventions") which can satisfy the novel and non-obvious criterion.(FN27) Once this technology was firmly established, the Union for the Protection of Plant Varieties ("UPOV") convention was revised in 1991 to allow national governments to provide patent protection for plant varieties.(FN28) Even if countries should choose not to implement patent laws in favour of new plant varieties, UPOV 1991 adds the criterion of novelty to the previous three criteria of distinctiveness, uniformity, and stability.(FN29) One possible future development is that mandatory patent protection of plant varieties will be included in an amendment to article 27(2)(b) of the TRIPs(FN30) agreement, which was scheduled for review in 1999. Finally, with respect to biotechnologies, in response to new-found capacities to create and/or use microorganisms in novel ways, many countries have broadened their intellectual property laws to the effect that they can protect life-forms.