91998E1949

WRITTEN QUESTION E-1949/98

by Anita Pollack (PSE) to the Commission

(30 June 1998)

Subject: WTO

What is the view of the Commission on the present permitted exclusion of patents on plants and animals from the Agreement on Trade Related Intellectual Property Rights?

Answer given by Sir Leon Brittan on behalf of the Commission

(3 September 1998)

Article 27.3(b) of the trade related aspects of intellectual property rights (TRIPs) agreement creates an option for World trade organisation (WTO) members to exclude plants and animals from patentability.

At European level, the Member States are legally bound by Article 53(b) of the Munich Convention, which expressly excludes plant or animal varieties or essentially biological processes for the production of plants or animals from patentability.

At Community level Council Regulation (EC) 2100/94 of 27 July 1994 on Community plant variety rights(1) provides Community intellectual property rights protection for new plant varieties, as an effective sui generis system within the meaning of Article 27.3(b), second sentence of the TRIPs agreement. Moreover, Directive 98/44/EC of the Parliament and the Council of 6 July 1998(2) on the legal protection of biotechnology inventions has recently been adopted. Article 4 of the Directive states that inventions which concern plants and animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety.

It is the view of the Commission that both Community instruments are in full conformity with Article 53(b) of the Munich Convention and with Article 27.3(b) of the TRIPs agreement.

The provisions of Article 27(3) of TRIPs will be reviewed no later than 1 January 1999, but the Commission does not have a firm position on this issue at this stage.

(1) OJ L 227, 1.9.1994.

(2) OJ L 213, 30.7.1998.