I. Introduction
In the age of global markets and the resulting development of international intellectual property rights, conflicts arise between industrialized nations seeking to develop new products from plants, and developing nations seeking to capitalize on their indigenous flora. One example is the conflict over basmati rice. Long identified as originating in the Indian sub-continent, basmati rice is prized for its distinctive aroma, flavor, and long, slender, fluffy grains. The connection between India and basmati seemed threatened when the United States ("U.S.") patented Texmati, described as an American basmati rice. The Indian government seeks to have the U.S. revoke the patent as part of its plan to protect its rice industry. This article explores this situation with an eye towards understanding what rights the patent provides Texmati and how it affects, if at all, India's rice industry. GDPR consultancy Tipperary Ireland
II. Intellectual Property
A. Patents
A patent for an invention is a grant of a property right by the government to the inventor. The patent term is twenty years from the date on which the patent application was filed in the U.S. The right granted by the U.S. patent extends only throughout the U.S. and its territories and possessions.
The patent rights are, in the language of the statute, "the right to exclude others from making, using, offering for sale, or selling" the invention in the U.S. or "importing" the invention into the U.S. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
B. Trademark
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce. The trademark identifies and distinguishes the goods of one manufacturer or seller from goods manufactured or sold by others. In short, a trademark is a brand name.
A certification mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce with the owner's permission by someone other than its owner. The certification mark certifies regional or other geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of someone's goods or services. A certification mark can also demonstrate that the labor on the goods or services was performed by members of a union or other organization.
A collective mark is a trademark or service mark used, or intended to be used, in commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark which indicates membership in a union, an association, or other organization. GDPR schools Ireland
C. Plant Variety Protection
The Plant Variety Protection Act (PVPA), enacted in December of 1970, and amended in 1994, provides legal protection, similar to patents. The right holders are breeders of new plant varieties which are sexually reproduced (by seed) or are tuber-propagated. Bacteria and fungi are excluded. The United States Department of Agriculture ("USDA") administers the PVPA.
A Certificate of Protection is awarded to a breeder if the USDA agrees that the plant variety is new, distinct from other varieties, genetically uniform, and stable through successive generations. The certificate is valid for twenty years for most crops and 25 years for trees, shrubs, and vines. The breeder has exclusive rights to multiply and market the variety's seed.
The owner must prove the distinctness, uniformity, and stability of the new variety. The applicant may: list the single variety he or she believes is the one most similar to the new variety and describe how the new variety differs from it; list a group of varieties to which the new variety is similar, and describe how it differs from that group; or, describe how the variety differs from all other known varieties. A statement of uniformity must report the level of variability in any characteristic of the variety.
The PVP Office maintains databases for crops of both public and private varieties. The plant variety examiner uses these and other sources to determine which, if any, varieties are indistinguishable from the new one. If the examiner finds varieties which appear to be indistinguishable from the application variety, the applicant will be notified that supplemental data are necessary. To obtain additional data, applicants may use DNA profiling or other analyses to show distinctness. The USDA does not perform tests to confirm a variety's distinctness.
III.International Trade Agreements
A. World Trade Organization ("WTO") and General Agreement on Tariffs and Trade ("GATT")
The GATT is an international agreement that sets the rules for conducting international trade in goods only. The WTO is an international organization that incorporates the GATT. The WTO updates the agreement to include services and intellectual property.
B. Trade Related Aspects of Intellectual Property (TRIPs)
The WTO's TRIPs Agreement is an attempt to harmonize intellectual property rights globally and provide a dispute settlement system. TRIPs covers copyrights, trademarks, patents, integrated circuit designs, trade secrets, industrial designs, and geographic indications.
WTO member countries may refuse a patent for an invention if its commercial exploitation is prohibited for reasons of public order or morality. A country may also exclude plants and animals (except microorganisms), and biological processes for producing plants or animals (except microbiological processes). However, if the country does not allow plant patents, the country must provide some protection. One permitted alternative is providing plant breeder's rights under the International Union for the Protection for New Varieties of Plants ("UPOV"). If a country did not protect plants before 1 January 1995, it may delay plant protection until 1 January 2005.
Articles 22 to 24 of TRIPs refer to protection of indicators of geographic origin. This portion of TRIPs protects geographic indications which identify a product as originating from a member-state where a reputation is attached to that geographic origin. Member-states may pursue legal recourse to discontinue the use of misleading geographic indications. Data Protection Officer Ireland
C. Provisions For Developing Nations
TRIPs includes special transitional provisions for the introductory period of TRIPs. Normally, members' laws and procedures needed to comply with TRIPs by 1 January 1996. Developing countries have until 1 January 2000 to adopt the TRIPs provisions. The least developed countries have until 1 January 2006 to comply with TRIPs.
