WORLD TRADE
ORGANIZATIONIP/C/W/284
15 June 2001
(01-2970)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
COMMUNICATION FROM SWITZERLAND
By means of a communication, dated 13 June 2001, the following text has been received from
the Permanent Mission of Switzerland with the request that it be circulated as an unrestricted Councildocument.
_______________
REVIEW OF ARTICLE 27.3(b):  THE VIEW OF SWITZERLAND
1. During the discussions on the review of Article 27.3(b), several Members presented their
views in written submissions
1 and oral statements.  Switzerland carefully considered the views
expressed and presented its view in statements read at the TRIPS Council meetings of
November 2000 and April 2001, respectively.  With the present submission, Switzerland would like to
further elaborate its view on the review of Article 27.3(b).
I. THE SCOPE OF THE RE VIEW OF ARTICLE 27.3(b)
2. In the view of Switzerland, the review of Ar ticle 27.3(b) should focus on the scope of the
exclusions from patentability of "plants and animals other than microorganisms, and essentially
biological processes for the production of plan ts and animals other than non-biological and
microbiological processes" as set forth in sentence one of this provision.  At the same time, the review
                                                     
1 These documents are:
document IP/C/W/198 “Protection of Biodiversity  and Traditional Knowledge - The Indian Experience:
Submission from India ” (date:  14 July 2000);
document IP/C/W/206  “Review of the Provisions of Article 27.3(b):   Communication from Mauritius on
behalf of the African Group ” (date:  20 September 2000);
“Comment on Japan ’s intervention on item K in the TRIPS Council meeting on 28.6.2000:
Communication from India ” (date:  22 September 2000);
document JOB(00)/6091 “Issues for Discussion under the Review of the Provisions of Article 27.3(b) of
the TRIPS Agreement:  Non-Paper by India ” (date:  5 October 2000);
document IP/C/W/209 “Review of the Provisions of Article 27.3(b) - Further Views of the US:
Communication from the US ” (date:  3 October 2000);
document WT/CTE/W/176 “Peru ’s Experience of the Protection of  Traditional Knowledge and Access
to Genetic Resources ” (date:  27 October 2000);
document IP/C/W/228 “Review of Article 27.3(b):  Communication from Brazil ” (date:
24 November 2000);
document tp259 “Response to US Paper No. IP/C/W/209 on Article 27.3(b):  Intervention by India ”
(date:  28 November 2000);
document IP/C/W/236 “Review of the Provisions of Article 27.3(b) –  Japan ’s View ” (date:
11 December 2000);
document JOB(00)/7853 “Non-Paper:  Article 27.3(b) ” (date:  11 December 2000).IP/C/W/284
Page 2
should focus on the sui generis  system of protection for plant varieties as set forth in sentence two of
this provision.
3. Based on this view, the present submission primarily addresses these two issues.  In their
submissions and statements, other Members have expressed their views on additional issues that
Switzerland considers to be beyond the issues to be d ealt with in the review of Article 27.3(b) as such.
Nevertheless, where these additional issues are linked to this review, Switzerland will also express its
views, however, without prejudice to its position on the scope of the review of Article 27.3(b).
II. SENTENCE 1 OF ARTICLE 27.3(b):  THE SCOPE OF THE EXCLUSIONS FROM
PATENTABILITY
(1) The Need to Adequately Protect Biotechnological Inventions
4. In the past few years, great advances have been made in biotechnology.  This future-oriented
technology promises to be one means which could help solve the problems facing today's world in
areas such as agriculture, health, nutrition or th e environment.  Examples where biotechnology might
be of use are the development of new pharmaceuticals that aid in the treatment of illnesses such as
cancer and AIDS, or the breeding of improved plant varieties adapted to difficult environments or
with improved nutrition levels that will help nourish the growing world population.  Research and
development (R&D) necessary for further advances in biotechnology and the creation of new and
improved biotechnological products and processes are generally very costly.  Besides publicly funded
research institutions, private companies are crucial actors in this area.  To continue their R&D
activities, private companies must be able to recove r their past expenses for R&D and to acquire the
resources necessary to fund such activities in the future.  One important means in this respect are
intellectual property rights, in particular patents.
5. Patents grant their holders the right to prevent others from commercially exploiting the
patented invention during a limited term of protection.  Patents, however, do not automatically grant
their holders the positive right to commercially expl oit the patented invention.  In other words, the
patenting of an invention does not automatically m ean that it can also be commercially exploited by
the patent holder.  Whether an invention can be commercially exploited is determined by bodies of
law other than patent law which regulate the marketing of products or commercial activities which
may be harmful to human life or health or the environment or raise ethical concerns.  Thus, as all
other inventions, biotechnological inventions can only be commercially exploited if it is permitted by
administrative laws such as laws on the protection of the environment2 or animal welfare3;  the
granting of a patent for biotechnological inventions  in itself does not have any implications for the
admissibility of the commercial exploitation of such an invention.
6. If, under these administrative laws, the patent holder is permitted to commercially exploit the
patented invention, the right accorded by patent law to exclude others for a limited period of time
from this commercial exploitation should allow patent holders to recover their R&D expenses and to
fund further such activities.  The possibility to exclude others from the commercial exploitation of an
invention thereby provides one important incentive for the continued involvement of privatecompanies in costly R&D activities.  Patent law, however, not only safeguards the interests of
inventors, but also of the public:  In order for the patent to be granted, the applicant must fully
disclose the invention in the patent application.  This ensures that the technological and scientific
knowledge contained in a patented invention is accessible to the public and can be used for further
                                                     
2 The French text of the “Federal Law on the Protection of the Environment ” is accessible at
<http://www.admin.ch/ch/d/sr/8/814.01.fr.pdf>.
3 The French text of the “Federal Law on the Protection of Animals ” is accessible at
<http://www.admin.ch/ch/f/rs/4/455.fr.pdf>.IP/C/W/284
Page 3
research even before the patent term has expired.  Without patents, the results of R&D activities
would likely be kept secret;  thus, by requiring patent applicants to disclose their invention to the
public, the patent system facilitates the dissemination of technological and scientific knowledge.
Furthermore, with the disclosure of the invention in the patent application, the public is made aware
of inventions the commercial exploitation of which may raise ethical or other concerns.  Without therequirement of full disclosure of the invention, the public would have much greater difficulties in
accessing information on the latest developments in R&D activities.  In this regard, the patent system
provides a valuable source of information and assists the public debate on areas such as
biotechnological R&D.  These key features – the right to exclude others from the commercial
exploitation of the patented invention for a limited period of time;  the requirement to fully disclose an
invention that not only allows for the disseminati on of technological knowledge, but also for public
awareness of developments in sensitive fields of technology - ensure that the patent system adequatelybalances the interests of inventors and the public.
7. In the field of patents, major implications on the scope of protection of biotechnological
inventions have Article 27.1, which requires that patents are available for inventions in all fields of
technology, and Article 27.3(b), which allows Members to exclude from patentability plants and
animals, but not microorganisms.  In other words, whereas biotechnological inventions are inprinciple patentable, plants and animals, that is, possible results of the application of biotechnology,
may be excluded from patentability by Members in their national laws.
8. In the view of Switzerland, inventions in all fi elds of technology must be adequately protected
by patents.  One such field of technology is biotechnology.  As biotechnological inventions deserve
the same patent protection as is accorded to other areas of science and industry, the review ofArticle 27.3(b) should not lead to any lowering of the level of patent protection of such inventions.  In
this regard, it is important to keep in mind that, in the field of biotechnology, exclusions from
patentability are possible already under the current wording of the first sentence of Article 27.3(b).
Switzerland considers this provision to be a balanced one that takes into account the various interests
and needs of Members.
(2) Plants and Animals
9. The first sentence of Article 27.3(b) distinguishes between plants and animals on the one hand
and microorganisms on the other hand, in so far as Members may exclude the former from
patentability, but must make available patents for the latter.  In the view of Switzerland, this
distinction is in accordance with the generally accepted scientific classification of organisms and is
also proof of the flexibility granted to Members by the TRIPS Agreement to decide whether or not toexclude the patentability of plants and animals in light of their specific national interests and needs.
(3) Microorganisms
10. The first sentence of Article 27.3(b) requires Members to make available patents for
microorganisms.  The TRIPS Agreement, however, does not define this term.  Switzerland agreeswith the United States and Japan that the language of Article 27.3(b) must therefore be interpreted in
accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, that is,
inter alia , "in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in light of its object and purpose".  With regard to the definition of the term
microorganism to be used, Members put forward different proposals:  the United States and Japanconsider the definition of the Oxford Dictionary
4 to be sufficient to distinguish "plants and animals"
                                                     
4 According to this definition, a microorganism is “an organism not visible to the naked eye, e.g.,
bacterium or virus. ”IP/C/W/284
Page 4
from "microorganisms" for the purposes of the discussions on the review of Article 27.3(b).5  I n
contrast, Brazil proposes to apply a more scientific definition of this term.6  Considering the general
absence of definitions of the term microorganism in national and international intellectual property
legislation and the ambiguities of the scientific definitions of this term, Switzerland agrees with the
United States and Japan that the definition of the Oxford Dictionary is sufficient for the discussionson the review of Article 27.3(b).
III. RELATED ISSUES
(1) Access and Benefit Sharing
11. Living organisms, that is, plants, animals a nd microorganisms, or their parts and components,
that are protected by patents may contain genetic resources which were obtained from third parties.
Furthermore, related knowledge, innovations and practices of indigenous and local communities(hereafter referred to as "traditional knowledge") may also be involved.  The issues arising in the
context of access to genetic resources and the related traditional knowledge, and the sharing of the
benefits arising from their use, are presently bein g discussed in several international fora, including
the following:
• "Working Group on Article 8j and the Related Provisions" and "Working Group on Access and
Benefit Sharing" of the Convention on Biological Diversity (CBD).  The former met for the first
time in March 2000 and will meet again in February 2002.  It is mandated to deal with issues
arising in the context of traditional knowledg e.  The latter will meet for the first time in
October 2001 and is mandated to deal with issues arising in the context of access to genetic
resources and the sharing of the benefit arising from their use, in particular the development of
international guidelines;
• "Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore" (Intergovernmental Committee) of the World Intellectual Property
Organization (WIPO).  This committee provides a forum to discuss issues arising in the context of
intellectual property, genetic resources, traditional knowledge and folklore.  It held its first
meeting in April/May 2001 and will hold a second meeting later this year;
• "Commission on Genetic Resources for Food and Agriculture" of the Food and Agriculture
Organization (FAO), which is in the process of preparing the revision of the "International
Undertaking on Plant Genetic Resources" (Internati onal Undertaking), an international agreement
dealing with issues arising in the context of plant genetic resources for food and agriculture.
12. Switzerland has actively and constructively participated in the discussions of these
international fora.  In the CBD, for example, Switzerland presented the "Draft Guidelines on Access
and Benefit Sharing Regarding the Utilization of Genetic Resources".
7  In the view of Switzerland, the
mentioned international fora – the CBD, WIPO and FAO – should remain in the foreground to deal
with the issues arising in the context of access to genetic resources and the related traditional
knowledge, and the sharing of the benefits arising from their use.
                                                     
5 Document IP/C/W/209 “Review of the Provisions of Article 27.3(b) Further Views of the US:
Communication from the US ” (date:  3 October 2000), p. 1-2;  document IP/C/W/236 “Review of the Provisions
of Article 27.3(b) – Japan ’s View ” (date:  11 December 2000), p. 3.
6 Document IP/C/W/228 “Review of Article 27.3(b):  Communication from Brazil ” (date:
24 November 2000), p. 2.
7 The text of the Draft Guidelines may be found at <http://www.wipo.int/eng/meetings/2001/igc/pdf/
grtkfic1_9.pdf>.IP/C/W/284
Page 5
(2) Traditional Knowledge
13. One issue that may be linked to the patenting of plants, animals and microorganisms, is the
protection of traditional knowledge that is related to these organisms.
14. Some of the issues discussed at the international level arise because traditional knowledge is
increasingly used outside its traditional area of us e, that is, outside the indigenous or local community
that created and used it.  Within its traditional area of use, local laws, customs and traditions regulate
questions of ownership and access.  In contrast, outside its traditional area of use, traditional
knowledge, as many other forms of knowledge, pr esently generally belongs to the public domain and
can be used without consent and compensation by all interested.
15. The just described legal status of traditional knowledge outside its traditional area of use has
led to the call for the protection of this knowledge at the international level.  Switzerland considers
traditional knowledge to be a valuable global resource and has thus actively supported these efforts.
The two international fora that are in the foreground regarding the discussions on the protection of
traditional knowledge are the Working Group on Arti cle 8(j) of the CBD and the Intergovernmental
Committee of WIPO.  This committee agreed at its first meeting to start work on traditional
knowledge in several areas, including the clarif ication of terminology and the assessment of the
application of existing forms of intellectual property rights to traditional knowledge.
(3) Prior Art:  International Database on Traditional Knowledge Related to Genetic
Resources
16. When determining the novelty and inventive step of an invention that might include
traditional knowledge related to genetic resources, one of the major problems that patent granting and
judicial authorities face is the accessibility of prior art regarding this knowledge.  Often, this form of
knowledge is only transmitted orally and it is therefore not documented in a written form.  Oral
information, however, may not be accessible at all by these authorities.  Or, if it is documented in
writing, it may be so in languages that these authorities are not familiar with.  This makes evident that,even if these authorities try their best, they might be unable to access prior art regarding traditional
knowledge.  A database on traditional knowledge could substantially improve this situation.  Patent
authorities could search this database when dealing with patent applications which raise questions
regarding traditional knowledge as an element of prior art.  This is why, in the TRIPS Council
meetings of October 1999 and April 2001, Switzerland proposed establishing such a database.  It
noted with great satisfaction that this proposal was welcomed by other delegations.
17. Such a database on traditional knowledge may have the following features:
• It should be established at the international level.  Only this will ensure that all national, regional
and international patent authorities and relevant judicial authorities have adequate access toinformation on traditional knowledge.
• As the recording of traditional knowledge in one single international database would likely be a
very costly endeavour, it would seem preferable to electronically link existing regional, national
and local databases.  Thus, rather than recording traditional knowledge itself, such aninternational database would primarily function as a gateway to these other databases.  In other
words, the international database could provide a network of regional, national and local
databases and would function similar to th e Clearing House Mechanism of the CBD.
• Such an international database should be established and administered by WIPO.  This
organization is in the foreground as it is best placed to administer such a database in the context of
ongoing similar projects for automation.  WIPO, therefore, already has the necessary expertiseIP/C/W/284
Page 6
and technical capacity to establish and administer the proposed database.  WIPO should carry out
its efforts on this database in close cooperation with other relevant international bodies that have
competence in the field of traditional knowledge, including in particular the CBD.
• The recording of traditional knowledge in the databa se should be voluntary, that is, recording may
only take place if the holders of the knowledge in question agree.  The recording, however, should
not constitute a prerequisite for the existence of any rights regarding traditional knowledge.
• The holders of traditional knowledge may specify that some elements of their knowledge may not
be disclosed to the public, i.e., it would be accessible only to the patent granting authorities.
• The knowledge recorded in this database should be organized in standardized classifications.
Only this ensures that the patent granting and judicial authorities are able to perform
comprehensive and conclusive searches.
• The information contained in the database should be recorded in several languages.
• The recording of the traditional knowledge should  be as easy as possible.  Furthermore, the
recorded knowledge should be updated as necessary.  This would ensure that traditional
knowledge, which is constantly created and improved, is always recorded in its newest form.
Keeping the recorded knowledge up–to-date appears to be much easier in regional, national and
local databases than updating one large international database.  Besides the lower costs mentionedabove, the ease of updating recorded traditional knowledge also speaks in favor of linking
existing regional, national and local databases ra ther than recording traditional knowledge in a
single international database.
18. The proposed international database would allow the effective integration of traditional
knowledge documentation into searchable prior art.  The proposed international database, however,
would not ensure that the benefits arising from the use of the recorded traditional knowledge are
properly shared or that rights to traditional knowledge are available and properly enforced.
Nonetheless, such a database would be one important step in addressing the issues arising in the
context of access to traditional knowledge and the sharing of the benefits arising from its use.Furthermore, it could be complemented by other measures such as the Draft Guidelines proposed by
Switzerland.  Only a comprehensive set of measures taken by the competent international fora will
ensure that the issues arising in the context of traditional knowledge can be properly addressed.
19. Switzerland intends to further pursue the idea of an international database at the international
level, in particular in the Intergovernmental Committee of WIPO.
(4) Ethical Concerns
20. The flexibility granted by Article 27.3(b) allows Members to take into account ethical
concerns.  Switzerland takes these concerns very seriously and enacted national legislation in this
respect.  Examples of such national legislation are provisions in the Swiss Federal Constitution and inFederal laws, such as the law on the protection of the environment or the law on animal welfare.
Furthermore, in 1998, the Swiss Federal Council put in place the "Swiss Ethics Committee on
Non-Human Gene Technology"
8, an independent body of experts mandated to provide advice on
ethical issues to the Federal Council and subsequent administrative agencies.  Parallel to Article 27.2,
the Swiss patent law allows to take into account ethical concerns, as it allows in Article 2(a) of the
"Federal Law on Patents for Inventions" to exclude from patentability inventions the prevention of the
                                                     
8 More information on this committee can be found at <http://www.buwal.ch/stobobio/ekah/e/
index.htm>.IP/C/W/284
Page 7
commercial exploitation of which is necessary to protect ordre public  or morality.  Switzerland is of
the view that beyond ordre public and morality, that is, the fundamental pillars of a legal system and
the fundamental legal norms based on ethical considerations, respectively, ethical concerns must be
dealt with by the police provisions of the applicable administrative laws.9
IV. SENTENCE 2 OF ARTICLE 27.3(b):  THE PROTECTION OF PLANT VARIETIES
21. The second sentence of Article 27.3(b) requires Members to protect plant varieties either by
patents, an effective sui generis  system, or a combination thereof.  Below, Switzerland elaborates
further its views on the nature of this sui generis  system of protection which it expressed in its
statements read at the TRIPS Council meetings of November 2000 and April 2001.
22. Switzerland is a Contracting Party of the 1978 Act of the UPOV10 Convention.  It considers
the plant breeders' rights system, established by the UPOV Convention, to be an effective sui generis
system as required by the second sentence of Article 27.3(b).  It furthermore agrees with Singaporethat the UPOV system is a useful reference for the basic level of protection of any sui generis  system
for the protection of plant varieties.  Taking furthermore into account the negotiation history of
Article 27.3(b) and the growing number of Contracting Parties of the UPOV Convention – currently
forty-seven States
11 -, Switzerland views the UPOV system to be in the foreground as an effective
sui generis  system of protection for plant varieties, as required by the second sentence of
Article 27.3(b).  Nonetheless, Switzerland agrees  with those Members who state that there may be
other sui generis  systems of protection for plant varieties that meet the requirements of Article 27.3(b)
besides the UPOV system of protection.
23. Article 27.3(b) requires the sui generis  system of protection for plant varieties to be
"effective", without, however, further specifying what elements constitute the effectiveness of such asui generis  system.  Switzerland considers the elements listed in the communication from the
United States
12 to present helpful guidelines for any national legislator when drawing up a sui generis
system of protection which differs from the system of protection of the UPOV Convention.
24. The second sentence of Article 27.3(b) does not define the term "plant variety".  The TRIPS
Agreement does not, therefore, specifically determine the subject matter to be protected by the sui
generis  system of protection.  Considering the overall objectives of the TRIPS Agreement, the results
of commercial plant breeding are likely the primary subject matter to be protected by the sui generis
system.  In this regard, the definition of the term "plant variety" contained in Article 1(vi) of the 1991
Act of the UPOV Convention13 might be helpful.  Nevertheless, Switzerland agrees with India14 that
the second sentence of Article 27.3(b) does not preclude Members from also implementing a sui
                                                     
9 See above, para. 5.
10 UPOV stands for the French “Union internationale pour la protection des obtentions végétales ”.
11 See <http://www.upov.org/eng/ratif/pdf/ratifmem.pdf>.
12 Document IP/C/W/209 “Review of the Provisions of Article 27.3(b) Further Views of the US:
Communication from the US ” (date:  3 October 2000), page 2.
13 The term plant variety is defined as follows:  “a plant grouping within a single botanical taxon of the
lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder ’s right are
fully met, can be
- defined by the expression of the characteristics resulting from a given genotype or
combination of genotypes,
- distinguished from any other plant grouping by the expression of at least one of the said
characteristics and
- considered as a unit with regard to its suitability for being propagated unchanged[.] ”
(<http://www.upov.org/eng/convntns/1991/pdf/act1991.PDF>).
14 Document tp259 “Response to US Paper No. IP/C/W/209 on Article 27.3(b): Intervention by India ”
(date:  28 November 2000), p. 3.IP/C/W/284
Page 8
generis  system of protection for farmers' varieties.  These generally have characteristics that differ
from commercial plant varieties and may therefore require their own system of protection that is
specifically designed to meet those characteristics.  This interpretation of the second sentence of
Article 27.3(b) would, among others, allow Members to realize Farmers' Rights as set forth in Article
15.2 of the draft for a revised International Undertaking.  However, it must be borne in mind thatFarmers' Rights as currently defined in the International Undertaking
15 cover plant genetic resources,
not plant varieties.  Furthermore, this definition of Farmers' Rights is not specific enough to be "an
effective sui generis  system" as required by Article 27.3(b) of the TRIPS Agreement.  National
legislation would therefore have to further specify Farmers' Rights to render these rights "an effective
sui generis  system".
25. Mauritius on behalf of the African Group16 states that its objective is to ensure that the
obligation to protect plant varieties by effective sui generis  systems as set forth in Article 27.3(b) is
consistent with the provisions of the CBD and the current, legally non-binding International
Undertaking of FAO.  As a Contracting Party of both of these international agreements, Switzerland
shares this objective.  In the view of Switzerland, the provisions of these international agreements and
the second sentence of Article 27.3(b) can - and should - be implemented in a mutually supportive
way.  There is, therefore, no room for inconsistencies between the relevant provisions of theseinternational agreements.
26. Switzerland considers the so-called breeders' ex emption and Farmers' Privilege to be two
features central to the plant breeders' rights system established by the UPOV Convention:
• The breeders' exemption allows breeders to freely use plant varieties protected by plant breeders'
rights in their breeding activities.  The breeders' exemption is provided for in Article 5.3 of the
1978 Act and in Article 15.1 of the 1991 Act of the UPOV Convention.  According to thecommunication from Mauritius on behalf of the African Group
17, "the obligation [to protect plant
varieties] raises the question of the exemption for other breeders to innovate around protected
varieties, without overly restrictive or prohibitive compensatory conditions in favor of breeders of
protected varieties".  In the view of Switzerla nd, the breeders' exemption as provided for in the
plant breeders' rights system established by the UPOV Convention adequately deals with thequestion raised in the communication from Mauritius on behalf of the African Group.
• The Farmers' Privilege allows farmers to replant on their own holdings propagating material of
protected plant varieties they harvested on their own holdings.  Both the 1978 and 1991 Act of theUPOV Convention provide for this privilege in Article 5.1 and 15.2, respectively.  Whether the
Farmers' Privilege is connected to a remuneration is left to the national legislator;  some nationallegislators have opted that farmers must pay a remuneration to the breeders, whereas others have
opted to grant the Farmers' Privilege free of charge.  In Switzerland, for example, the Farmers'
Privilege provided for in the current version of the "Federal Law on the Protection of Plant
Varieties" does not foresee the payment of a remuneration.  Additionally, it is foreseen to
introduce the Farmers' Privilege in the Swiss patent legislation in the on-going revision of the
"Federal Law on Patents for Inventions", also without remuneration.  In this context, it is
important to clearly distinguish the "Farmers' Privilege" from "Farmers' Rights".  As just
                                                     
15 Annex 2 of the International Undertaking currently defines Farmers ’ Rights as “rights arising from
the past, present and future contributions of farmers in conserving, improving, and making available plant
genetic resources, particularly those in the centers of origin/diversity".  (FAO Conference Resolution 5/89, nowAnnex II of the International Undertaking; reprinted in FAO document CPGR-Ex1/94/Inf. 1 [September 1994].)
16 Document IP/C/W/206 “Review of the Provisions of Article 27.3(b):  Communication from
Mauritius on behalf of the African Group ” (date:  20 September 2000). para. 3.5.
17 Document IP/C/W/206  “Review of the Provisions of Article 27.3(b):  Communication from
Mauritius on behalf of the African Group ” (date:  20 September 2000), para. 3.2.IP/C/W/284
Page 9
described, the "Farmers' Privilege" is a concept used in plant breeders' rights legislation which
limits the rights of the holders of plant breeders' rights, whereas "Farmers' Rights" is a concept
used in FAO's International Undertaking dealing w ith the rights of the farmers arising from the
role they play in the conservation and improvement of plant genetic resources.
27. The breeders' exemption and the Farmers' Privilege provide for a balance between the
interests and needs of plant breeders and farmers:  plant breeders are granted the exclusive right to the
commercial exploitation of the protected plant variety and are thus provided with an incentive to
remain active in plant breeding activities.  These activities are supported by the breeders' exemption,
which enables breeders to draw upon protected plant varieties as a source of genetic material to breed
new and further improved varieties.  Under the Farmers' Privilege, farmers are not required to buy
new seed every planting season, and may use the propagating material they harvested on theirholdings.  In the view of Switzerland, Members can, by implementing Article 27.3(b) through plant
breeders' rights as set forth in the UPOV Convention, achieve a balanced solution in their national
laws in the area of the protection of plant varieties.
V. CONCLUSION
28. In the view of Switzerland, the review of Ar ticle 27.3(b) should focus on the scope of the
exclusions from patentability of "plants and animals other than microorganisms, and essentially
biological processes for the production of plan ts and animals other than non-biological and
microbiological processes" as set forth in the first sentence of this provision.  At the same time, the
review should focus on the sui generis  system of protection for plant varieties as set forth in the
second sentence of this provision.
29. Switzerland considers it to be crucial that biotechnological inventions are adequately
protected by intellectual property rights, especially patents.  This is not only necessary for the
continued activities of the private sector in biotechnological R&D, but also for technology transfer, in
particular to developing countries.
30. In the view of Switzerland, Article 27.3(b) as it currently stands is a balanced provision that
allows the various interests and needs of Members to be taken into account.  The possibility of
excluding plants and animals from patentability allows Members, among others, to consider ethical
concerns.  The UPOV System, which in the view of Switzerland is in the foreground as an effective
sui generis  system of protection for plant varieties, provides a balanced solution.  The two important
features of this system are the breeders' exemption and the Farmers' Privilege.
31. In the view of Switzerland, the provisions of the CBD and the current version of the
International Undertaking, and the second sentence of Article 27.3(b) can - and should - beimplemented in a mutually supportive way.  Such an implementation ensures that the obligation to
protect plant varieties by an effective sui generis  system as set forth in Article 27.3(b) is consistent
with the provisions of the other two international agreements and leaves no room for inconsistencies
between the provisions of these international agreements.
32. To further advance the discussions on the sui generis  system of protection for plant varieties
as set forth in Article 27.3(b), Switzerland would be interested in hearing from those Members who
have chosen to implement a sui generis  system of protection which is different from the plant
breeders' rights system established by the UPOV Convention.
__________