RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/125/Add.3
10 February 1999
(99-0496)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Information from the Republic of Zambia
Addendum
The present document represents the information requested by the Council for Trade-Related
Aspects of Intellectual Property Rights which the Secretariat has received from Zambia, by means of
a communication from its Permanent Mission, dated 1 February 1999.
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1. INTRODUCTION
The Patents Act Cap. 400 of the Laws of Zambia regulates the grant of protection for
inventions in Zambia.
The Act does not exclude any field of technology from protection.  However, the Registrar
has the discretion to deny protection to inventions deemed to be contrary to public morality or law.
Further, substances used as food or medicine which are mere mixtures of known ingredients, or a
process for obtaining such mixture are excluded from patentability.  Section 38 herein refers.
2. PROTECTION OF PLANT VARIETIES
As earlier indicated, Section 18 allows the Registrar on a discretionary basis to refuse certain
classes of applications for a patent.  However, plant varieties do not fall within any of the classes.
Therefore by interpretation, it is possible for the Registrar to grant a patent for a plant variety, but
only if it can meet the criteria of an invention and if the complete specification "fully described theinvention and the manner in which it is to be performed".  (Section 14(3) of the Act).  What would
need to be resolved, however, in such a situation would be the question of obviousness and
reproducibility.
Industrial property rights (IPRs) are private rights.  This means that once a patent is granted
the owner enjoys exclusive rights to his invention.  Therefore, the grant of a patent for a plant variety
would mean "to grant to the patentee, subject to the provisions of the Act and the conditions full
power, sole privilege and authority by himself, his agents and licencee during the term of the patent,
to make use, exercise and vend the invention within Zambia in such a manner as to him seems meet,
so that he shall enjoy the whole profit and advantage accruing by reason of the invention during theterm of the Patent".IP/C/W/125/Add.3
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This would mean that the patentee would be empowered to control, totally, the use of his
plant varieties including the saving of seed and its re-use on farms.  The legislation does not provide
for "farmers privilege".
3. TRIPS AGREEMENT:  ARTICLES 27.3(b)
This Article provides, inter alia,  that only plants and animals and essentially biological
processes for the production of plants or animals may be excluded from patentability.  However, the
same provision stipulates that micro-organisms,  as well as micro-biological and non-biological
processes are not covered.  They have to be patented.  However, Members are obliged to provide
protection for plant varieties either by patents or by an effective sui-generis system or by a
combination thereof.
4. IMPLICATIONS OF PATENTING PLANT VARIETIES AND LIFE FORMS
Article 27.3(b) has been viewed as one that will make developing countries lose control over
their own biodiversity and the benefits they derive therefrom.  Developing countries are rich in
biodiversity and giving of monopolies over these will curtail the enjoyment by communities.  Opting
to extend the patent laws to plant varieties will be setting up a system of private rights overindividuals to prevent others from making, using or selling the protected variety or any product that
might have patented genetic information.  Consequently, farmers will not be able to freely access or
re-use their seed, nor will they be able to save and/or exchange seed.
Patenting of plant varieties does not provide for benefit sharing as this is a private right to the
exclusion of anybody else.  Major companies will have monopolies and secure ownership of plant
varieties which contain genetic information obtaine d from the farmers own fields in the developing
countries, which would then be sold back to them with a royalty charge added thereto.
5. SUI-GENERIS SYSTEM
As already stated, Article 27.3(b) also provides for the protection of plant varieties through an
"effective sui-generis  system".  This term has, however, not been defined sufficiently.  It is difficult to
determine what effective sui generis  systems for plant varieties will entail.  It is most likely that it
might be on the lines of the UPOV inspired system.  However, the sui-generis  system allows
developing countries to provide for the protection of plant resources by a model that is suitable with
their culture.  Legislation on protection of plant varieties should be developed which would accord
recognition to innovations of indigenous peoples and local communities.  In terms of definition, suchstatute should define innovation to include any inventive input done collectively, accretionally,
intergenerationally and over time in relation to genetic resources.  Such a system would effectively
protect ownership rights of farmers and indigenous peoples over their plant varieties and seeds.
Currently, Zambia has in place a draft Plant Breeders Rights Act.  It would appear that the
same is based on the principles of the 1991 Act of the UPOV Convention.  Under UPOV 1991, parties
are free to protect plant varieties by plant breeders rights.  The Act works basically in the interest of
the farmer at local community level.  It would be advisable, therefore, if the Plant Breeders Rights Act
was to be used in Zambia as an alternative to patenting of plant varieties in Zambia.
6. SUMMARY
As the world integrates and calls for equitable sharing of benefits derived from the global
trading system, and as it calls for the conservation and sustainable use of biological resources,
countries world over are faced with a number of challenges as they strive to attain these objectives.IP/C/W/125/Add.3
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Considering that Article 27 of the TRIPS Agreement hinges on matters that concern both the
enhancement of trade, on the one hand, and conservation and preservation of the environment, on the
other, it is imperative that the TRIPS review meeting take into account the concerns of the world.
As a country whose rural community depends solely on agriculture the following concerns are
expressed as regards the TRIPS Agreement in its present state:
− Lack of recognition of indigenous knowledge wi thin the provisions of the TRIPS Agreement;
− No clear understanding within the provision of Articles 27.3(b) on the conservation and
sustainable use of biological materials;
− No clear understanding of what constitutes the sui generis  system of protection.
7. RECOMMENDATIONS
The review meeting should ensure that the TRIPS Agreement provides for a clear
understanding within the provisions of Articles 27.3(b) on the conservation and sustainable use of
biological materials.  It should also endeavour to provide for a clear understanding of the coverage of
a sui generis system, whether indigenous knowledge and eco-system protection fall within its
coverage.
Since most least developed countries depend much on farming, there is need to recognize the
contribution of farming and indigenous communities to genetic resource conservation and
enhancement.
As rapid changes take place in plant varieties much of the diversity contained in landraces and
farmers' varieties are under great threat from their replacement by new varieties.  It should also be
borne in mind that genetic engineering, and its products in food, has its own consequences, whose full
impact on the health of human beings has not fully been assessed.  This poses the danger of causing
unrepairable damage.  Moreover, many developing countries do not even have the capacity to conductsuch assessment.
The plant variety protection route should not deprive farmers of their own rights and,
therefore, whatever sui generis  system is adopted, it should include provisions to either protect the
farmer's privilege, or provide wider space in the plant variety protection law for farmers as breedersand/or conservers (the right to compensation for the commercial use of their materials).
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