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W. E. SIEBECK
force of the Convention, i.e. all genetic material collected and currently stored outside its
country of origin.
5 The GATT-TRIPS Agreement
While developing countries` demands for control over their genetic resources grew stronger in
FAO and in the negotiations leading up to the Convention on Biological Diversity, negotiations
advanced in parallel for stronger protection of man-made improvements and inventions. From the
outset, strengthened protection of intellectual property in developing countries was a key objective
advanced by the industrial nations in the recently completed GATT Round of Multilateral Trade
Negotiations, known as the Uruguay Round. 15 For a long time, developing countries opposed
those demands, but because of the trading benefits they expected to obtain in other areas of the
trade pact, and also because many of them of their own interest, began to move towards stronger
protection of intellectual property, developing countries relented and agreed to submit to the
"Agreement on Trade-Related Intellectual Property Rights" (the TRIPS Code) which goes far
beyond what developing countries previously had been ready to accept under international
agreements. The TRIPS Code requires countries:
– to protect trade secrets (article 39);
– to protect any invention (process or product) in all fields of technology (article 27);
– to provide enforcement procedures (articies 41-49);
To bring their legislation into compliance with these commitments, the Code grants developing
countries a grace period of five years which on certain conditions can be extended by another five
years, and for least developed countries by ten years (articles 65-66).
What does this imply for genetic resources management? Article 27 of the TRIPS Code stipulates
that „patents shall be available for any inventions“. An imposant but limited exemption is permitted
in sub-paragraph 3(b):
Members may also exclude from patentability
b) plants and animals other than microorganisms, and essentially biological processes for the
production of plant or animals other than non-biological and microbiological processes.
However, Members shall provide for the protection of plant varieties either by patents or by
an effective sui generis system or by a combination thereof. The provisions of this subparagraph
shall be reviewed four years after the entry into force of the Agreement Establishing
the Multilateral Trade Organization.
15
The Final Act embodying the results of the Uruguay Round of Multilateral Trade Negotiations was signed
in Marrakesh in April 1994. After its ratification by the major trading nations it entered into effect on
January 1995. This created the new World Trade Organization.