WORLD TRADE
ORGANIZATIONIP/C/W/273
5 June 2001
(01-2762)
Council for Trade-Related Aspects
of Intellectual Property Rights
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
ILLUSTRATIVE LIST OF QUESTIONS
Prepared by the Secretariat
1. At its meeting of 2 to 5 April 2001, the Council agreed that the Secretariat re-issue the
illustrative list of questions annexed to the present document, which it had prepared and circulated in
December 1998 in response to a request from the Council (document IP/C/W/122).
2. The Council invited Members, as reflected in paragraph 186 of document IP/C/M/30, to
provide their responses to this illustrative list of questions, if they had not yet done so.
3. Also annexed, for the information of Members preparing their responses following this
request from the Council, is document Job No. 2689 of 7 May 1999, which contains the synoptic
tables of responses to the illustrative list of questions received by that time, as prepared by the
Secretariat upon a request from the Council.  As explained in paragraph 4 of the document in
question, the Secretariat, in compiling these synoptic tables, employed a combination of the questionsposed in the illustrative list of document IP/C/W /122 and those contained in document IP/C/W/126,
which some Members had been using as a format for their responses.IP/C/W/273
Page 2
ANNEX I
ILLUSTRATIVE LIST OF QU ESTIONS ON ARTICLE 27.3(b)
A. PATENT PROTECTION OF PLANT AND ANIMAL INVENTIONS
1. To what extent are inventions concerning pl ants or animals, whether products or processes,
patentable under your country's law, if they meet the conditions for patentability stipulated in
Article 27.1 of the TRIPS Agreement?
2. Where any such inventions are not patentable, even if they meet these conditions:
(i) To what extent is this due to per se  exclusions from patentability?
(ii) To what extent is this based on other grounds (for example because conditions for
patentability other than those stipulated in Article 27.1 are not met or in order to
protect ordre public  or morality (see Article 27.2 of the Agreement))?
3. Please describe any specific provisions, guidelines, final judicial decisions and administrative
rulings of general application concerning the application of the conditions for patentability stipulated
in Article 27.1 to subject-matter addressed by Article 27.3(b).
4. Where plant varieties are not as such patentable subject-matter under your country's law,
please indicate the extent to which the scope of protection under  patents for inventions concerning
plants can nevertheless embrace plant varieties or a botanical taxon whose plants express a trait
covered by the claims of a patent.
5. Please provide any definitions used under your country's law with regard to subject-matter
specifically excluded from patentability or specifically patentable (e.g. micro-organisms,
microbiological processes, non-biological processes, plant varieties).
6. To what extent is subject-matter that is identical to what occurs in nature patentable under
your country's law?
7. Explain the requirements under your country's law for ensuring adequate disclosure of the
patentable inventions referred to above.
8. What rights are conferred upon owners of the patents referred to above?  Are product and
process patents subject to the same rules as other patents?  Do they benefit from the same protectionas stipulated in Article 28 of the TRIPS Agreement?
9. Are there any specific exceptions to these rights (affecting the scope or duration of the patents
referred to above)?  To what extent are exceptions, available in respect of plant variety rights (e.g.
those referred to under question B.4(i) below), available in respect of rights conferred upon patentowners?
10. Are there any specific provisions under your country's law for compulsory licensing in respect
of the patents referred to above?
N.B. Please ensure that your responses to the questions above cover each category of
subject-matter specified in Article 27.3(b), namely micro-organisms, essentially biological
processes for the production of plants or animal s, microbiological processes, non-biological
processes, plant varieties and other inventions concerning plants or animals.IP/C/W/273
Page 3
B. PROTECTION OF PLAN VARIETIES
1. Does your country's law provide for the protecti on of plant varieties by plant breeder's rights,
plant patents or any other sui generis  system for the protection of plant varieties?
2. (a) If your country is a party to the International Convention for the Protection of New
Varieties of Plants (UPOV), please indicate which Act or Acts of the UPOV
Convention your country has signed;  which it has ratified;  to which it has acceded;
and to the standards of which its law conforms but to which it has not (yet) adhered.
(b) If your country is not a party to the UPOV Convention, does the protection offered to
plant varieties under your country's law conform to the standards of any of the Acts of
the UPOV Convention and, if so, which?
3. Please indicate whether concurrent protection under your country's plant variety protection
law and its patent law is available (see also question A.4 above).
4. Please provide the following details of your country's sui generis  system for the protection of
plant varieties:
(a) the relevant laws and regulations and, if they have been notified to the Council for
TRIPS, a reference to the relevant WTO documents;
(b) the definition of "plant variety";
(c) the conditions required for protection;(d) the extent to which subject-matter that is already known to the public or identical to
what occurs in nature is protectable under your country's sui generis  system for the
protection of plant varieties;
(e) the extent to which protection can be based on characteristics of germplasm, as
opposed to characteristics of plant varieties derived from such germplasm;
(f) who is entitled to the rights;(g) the procedure for the acquisition of rights, including the authority in charge of
administering the rights;
(h) the rights conferred;(i) exceptions to the rights conferred, such as:
- acts performed for research or experimental purposes;
- acts performed to develop new varieties of plants;
- acts performed to commercialize such newly developed varieties;- any "farmer's privilege" (e.g. acts performed by a farmer on his own land in 
respect of seed saved from the previous harvest);
- acts done privately and for non-commercial purposes;
- compulsory licensing.
(j) the duration of protection;
(k) transfer of rights;(l) enforcement of the rights.IP/C/W/273
Page 5
ANNEX II
Job No. 2689
Council for Trade-Related Aspects
of Intellectual Property Rights 7 May 1999
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
SYNOPTIC TABLES OF INFORMATION PROVIDED BY MEMBERS
Informal Note by the Secretariat
1. At its meeting of 1-2 December 1998, the Council agreed to initiate the review due under
Article 27.3(b) of the provisions of that subparagraph through an information-gathering exercise.  In
this connection, the Council invited Members that were already under an obligation to apply
Article 27.3(b) to provide information on how the matters addressed in this provision were presently
treated in their national law.  Other Members were invited to provide such information on a bestendeavours basis.  In response to the Council's invitation, information has been received, to date, from
Australia, Bulgaria, Canada, the Czech Republic, the European Communities and their member
States, Hungary, Japan, Korea, Morocco, New Zealand, Norway, Poland, Romania, Slovenia,
South Africa, Switzerland, the United States and Zambia (documents IP/C/W/125 and addenda 1-17).
2. At its meeting of 17 February 1999, the Council agreed that, to facilitate an analysis of the
material provided by Members, the Secretariat be requested to compile, in an informal note, the
information in the form of a structured summary overview.  The present note aims to respond to this
request.  The note contains two synoptic tables, one covering the information received regarding
patent protection of plant and animal inventions and the other the information received regarding
protection of plant varieties.
3. In providing their information, Members did not use the same format.  A number of Members
provided information by answering the questions lis ted in the illustrative list prepared by the
Secretariat (document IP/C/W/122).  Some other Members used the method suggested by Canada, the
European Communities and their member States, Japan and the United States
(document IP/C/W/126).  Yet other Members answer ed both the questions in document IP/C/W/122
and those in document IP/C/W/126.  Finally, th ere were Members who provided information without
referring to either of these documents.  Moreover, in some cases, especially in regard to the questions
listed in document IP/C/W/122, questions were not posed in a way susceptible to a yes/no or other
brief answer that can readily be reflected in synoptic form.
4. Accordingly, the Secretariat, in compiling the attached tables, has employed a combination of
the questions posed in documents IP/C/W/122 a nd IP/C/W/126, with modifications where necessary
to make the information suitable for presentation in synoptic form.  Where a Member has providedadditional information on a question posed, this is indicated by the use of an asterisk (*) in the table
and that additional information has been reproduced in the annexes to this document.  Of course, it
has not been possible to reflect in this note all the information provided in the responses by Members
circulated in documents IP/C/W/125 and addenda;  accordingly, this note should be read in
conjunction with those documents.  It might also be noted that, in the course of checking withdelegations to ensure that the information made available by them is accurately reflected in the
present note, some delegations have provided addi tional information for the purposes of the present
document.
5. In the tables, the following basic notation has been employed:
- "n.a." means not applicable;
-"
*" refers the reader to the annexes for addi tional information on the point in question;
- a blank means that no information has been provided on the point in question.IP/C/W/273
Page 6
SYNOPTIC TABLE I:  PATENT SYSTEM
AUS BGR CAN CHE CZE EEC
1. In your territory, is there any basis for
denying a patent on an invention consisting of an
entire plant or animal that is novel, capable ofindustrial application, involves an inventive stepand has been adequately disclosed?No
*Yes Yes* Yes* Yes* Yes
2. If the answer to question 1 is yes, please
respond to the following questions:
(a)Does your patent system exclude entire
plants or animals as inventions?
(b)If your patent system does recognize
entire plants and animals as inventions,does it exclude all such inventions frombeing patentable subject-matter, or doesit only exclude certain types of plants or
animals?  If it excludes only certain
types, please identify the categories orcharacteristics of inventions that areexcluded.
(c)Is there any other basis in your law that
precludes the grant of a patent on any
categories of plant or animal inventionsthat otherwise are novel, involve aninventive step, are capable of industrialapplication and have been adequatelydisclosed?n.a.
n.a.
n.a.*No
1
Yes*Yes*
n.a.
No*
*, 1
*No*
1
Yes*No
1
Yes*
3. Other than with respect to subject-matter
you defined as being ineligible to be patented
under question (2), is it possible in your territoryto obtain a patent claim defined in any of thefollowing ways?
(a)A patent claim that is not limited to a
specific plant or animal variety.
(b)A patent claim that is expressly limited
to a plant or animal variety.
(c)A patent claim that is expressly limited
to a group of plants or animals, wherethe group is defined through reference
to a shared characteristic such as
incorporation of a particular gene.Yes
Yes
Yes*
No*
*No
No
No*Yes
No
Yes*
*
*Yes
No
Yes
4. Is it possible to obtain a patent in your
territory on a microorganism that is novel,involves an inventive step and is capable ofindustrial application?Yes Yes Yes* Yes Yes Yes
5. Is it possible to obtain a patent in your
territory on an essentially biological process for
the production of a plant or animal (i.e. a process
limited to those acts that are necessary for sexualor asexual reproduction of a plant or animal)?Yes* No* No No* No* No*
6. Is it possible to obtain a patent in your
territory for subject-matter that is identical tothat found in nature (e.g. a plant or animal in itsnatural state)?No* No* No No* No* *
7. Does your patent system include any special
provisions to ensure adequate disclosure
regarding inventions covered by Article 27.3(b)(for example, micro-organisms)?Yes* Yes* Yes Yes*
                                                     
* See Annex 1 for further information, pages 6-18.
1 Plant and animal varieties are excluded.
2 Sexually reproduced plants are excluded.IP/C/W/273
Page 7
HUN JPN KOR NOR NZL POL ROM SVN USA ZAF ZMB
Yes* No* Yes Yes* No* Yes No No No Yes Yes
No
No
Non.a.
n.a.
n.a.No*
2
Yes*n.a.
n.a.
Non.a.
n.a.
n.a.No
1
n.a.n.a.
n.a.
n.a.n.a.
n.a.
n.a.No
*, 1
Yes*No
n.a.
Yes*
Yes
YesYesYes
YesYesYes
YesYesNo
NoNoYes
YesYesNo*
No*
Yes/
No*No
Yes*
NoYes
YesYesYes
YesYesNo
NoYes
YesYes
Yes Yes Yes* Yes Yes Yes* Yes Yes Yes Yes Yes
No* Yes No* No Yes No* Yes Yes No* No
No No* No No* No* No* No* Yes* No* No*
Yes* No Yes* No* Yes* Yes Yes* n.a. NoIP/C/W/273
Page 8
SYNOPTIC TABLE II:  PLANT VARIETY PROTECTION SYSTEMS
AUS BGR CAN CHE CZE EEC HUN
1. Do the laws applicable to your territory
provide for a sui generis form of protection for a
new plant variety?Yes Yes Yes Yes Yes Yes No
2. If the answer to question 1 is “yes”, does that
protection conform to the standards defined in oneof the Acts of the International Convention for the
Protection of New Varieties of Plants (UPOV)?Yes Yes Yes Yes Yes Yes Yes
3. If the answer to question 2 is “yes”, please
specify the Act of the UPOV Convention uponwhich your legislation is based (i.e. the 1991 Act,the 1978 Act or the 1961/1972 Act).1991 1991 1978 1978
*1978 1991 1978
4. If sui generis protection for plant varieties is
provided in your territory, would any of the
following acts require the prior authorization of
the right holder:
(a)acts performed for research or
experimental purposes, or to develop newvarieties of plants?
(b)acts performed to commercially exploit a
variety distinct from the protected variety
but sharing its essential characteristics?
(c)acts performed by a farmer of harvesting
seed from his planting of a protectedvariety legitimately obtained, storage ofthat seed, and replanting of that seed on
the farmer’s land?
If prior authorization is not required for any
of the above examples of activities, is there anyrequirement that the party undertaking thespecified actions provide the right holder withremuneration in any form?No
Yes*
No*
No*No
No*No
No
No
NoNo*
No*
No*
NoNo
Yes
Yes
NoNo
Yes
No*
Yes*n.a.
n.a.
n.a.
n.a.
5. Would acts done privately and for non-
commercial purposes require the authorization
from the right holder?No No* No No* n.a.
6. Does your legislation provide for other
exceptions to the rights conferred?Yes* Yes Yes Yes
7. Can protection be obtained for a plant
variety that was known to the public, or waspublicly available, prior to the application for sui
generis protection for that plant variety, and, if so,
under what conditions (i.e. what are the time-limitsduring which public disclosure or availability willnot preclude the grant of protection)?* Yes* Yes* Yes* Yes* Yes* Yes*
8. To be entitled to rights under sui generis
plant variety protection does one have to be theperson who bred, or discovered and developed the
variety, or his successor in title?Yes Yes Yes Yes
9. Can protection be predicated on
identification of an unexpressed gene, on anunexpressed set of genes present in the genome ofthe plant variety, or on the characteristics ofgermplasm, rather than the expressedcharacteristics of plant varieties derived from such
genes or germplasm?N o N o * N oN oN oN oN o
10. What are the conditions that your law require
for protection?1d,u,
s,n1d,u,s
pd,nd,u,s
pd,nd,u,s
pd,n
11. What is the duration of protection? 25/20*30/25*18*15/18*
                                                     
* See Annex 2 for further information, pages 19-33.
1 d=distinctness;  u=uniformity;  s=stability;  n=novelty;  pd=proper denominationIP/C/W/273
Page 9
JPN KOR MAR NOR NZL POL ROM SVN USA ZAF ZMB
Yes Yes Yes Yes Yes Yes Yes Yes Yes* Yes No*
Yes Yes Yes Yes Yes Yes Yes* Yes Yes Yes n.a.
1991 1991 1991* 1978
*1978 1991 1991 1991 1991 1991* n.a.
No
Yes*
No*
NoNo
Yes
No
NoNo*
Yes*
No*
No*No*
No*
No
NoNo
No
No
NoNo
NoNo
Yes
No
No*No
Yes
No
Yes*No*
Yes
No*
NoNo
No
Non.a.
n.a.
n.a.
n.a.
No No* No No No No No n.a.
Yes Yes* Yes* Yes Yes* Yes n.a.
Yes* Yes* Yes* Yes* Yes* Yes* Yes* Yes* Yes* No* n.a.
Yes Yes* Yes* Yes Yes* Yes Yes* n.a.
No No No No* * No No* No* * n.a.
d,u,s
pd,nd,u,s pd,n d,u,s,n d,u,s
pd,nd,u,s
pd,nd,u,s,n *
25/20*20/25/30*23/20*30/25*30/25*25/20*25/20*n.a.IP/C/W/273
Page 10
ANNEX 1
Explanatory Notes to Synoptic Table I
Patent System
Question 1 : In your territory, is there any  basis for denying a patent on an invention consisting of
an entire plant or animal that is novel, capable of industrial application, involves an inventive step
and has been adequately disclosed?
Australia
No.
The main legislative provisions relevant to Article 27.3(b) are the Patents Act 19901 and the
Plant Breeders Rights Act 19942, which respectively provide the legislative basis for the patent system
and the system for plant variety protection.  Both laws have been notified to the WTO.  The two
systems operate independently in practice, and the grant of a right under one system does not in itself
affect any entitlement under the other system, provided all conditions for eligibility are met.
Under the Patents Act patenting of biotechnology inventions is allowed.  The issue of whether
genes and life forms should be excluded from the patents system was considered during parliamentary
debate to the legislation in 1989.  The result of the debate was a single exclusion – human beings and
biological processes for their generation.  Therefore, in Australia, provided the patent application
meets all the usual requirements for patentability (i.e. is novel, inventive, fully described etc.), abiotechnology patent will be treated no differently from any other patent application, in line with the
general TRIPS principle (Article 27) that patent rights should be available regardless of the field of
technology concerned.
The Plant Breeder's Rights Act provides for certain exclusive commercial rights to a
registered plant variety.  Only new or recently exploited varieties can be registered.  A new variety is
one which has not been sold with the breeder’s consent.  A recently exploited variety is one whichbeen sold with the breeder’s consent for up to 12 months in Australia and for overseas varieties this
limit is up to four years (with the exception of trees and vines for which a six year overseas prior sale
limit is permitted).  To be eligible for protection the applicant must show that the new variety is
distinct, uniform and stable.  To obtain acceptance of an application and provisional protection it must
be established that there is a prima facie case that the variety is distinct from all other varieties ofcommon knowledge.  To obtain a grant of PBR the applicants must verify these claims normally by
conducting a comparative test growing which includes the new variety and the most similar varieties
of common knowledge.
The Australian Patents Act has no specific exclusions from patentability (except section 18(2)
— human beings and the biological processes for their generation are not patentable subject matter),
based on ethical or moral grounds, of inventions being either products or processes and concerning
plants and animals.  However the grant of a patent for an invention may be refused on the ground that
the use of the invention would be contrary to law (section 51(1)).
                                                     
1 Document IP/N/1/AUS/P/1
2 Document IP/N/1/AUS/P/2IP/C/W/273
Page 11
Canada
Yes.
To date, Canadian courts have held that higher life forms (e.g. multi-cellular differentiated
organisms) are not patentable subject-matter.  This matter is still under appeal before the Federal
Court of Appeals.
Switzerland3
Yes.
According to Article 1.1 of the Swiss Fede ral Law on Patents for Inventions (LPI ; text
notified according to Art. 63.2 of the TRIPS Agreement on January 31, 1996 (see document
IP/N/1/CHE/1 at p. 10)),  "[p]atents for inventions  shall be granted for new inventions applicable in
industry." In other words, they must be new, involve an inventive step and be capable of industrial
application. The three conditions must be met. Discoveries cannot be patented.
Article 1a specifies that " [p]atents shall not be granted for new varieties of plants or animal
breeds...”." Article 2 of the LPI, which enumerates inventions that are excluded from patentability,does not mention plants or animals. Thus, all inventions concerning entire plants and animals, and
parts thereof, are patentable under Swiss law, provided they meet the legal requirements.
It should be noted that inventions the implementation of which would be contrary to public
order and morality cannot be patented (Article 2.a LPI), although they fulfill all other requirements forprotection (novelty, inventive step and industrial applicability, disclosure, etc.) Those requirements
are not limited to inventions relating to living ma terial; they apply to all fields of technology.
                                                     
3 Attention is called to the following points as far as the Swiss replies are concerned:
a. In the field of patent protection, Switzerland and Liechtenstein are bound by the Treaty of 22
December 1978 on the Protection Conferred by Patents for Inventions (treaty notified underArticle 4(d) TRIPS in 1996 (see document IP/C/4/CHE/1)).  This treaty was concluded within theframework of their Customs Union Treaty of 1923.  Under this treaty, both countries form aunitary territory of protection. In other words, patents granted by the Swiss Federal Institute ofIntellectual Property and the Swiss patent legislation also apply to the territory of Liechtenstein.
This bilateral treaty only covers patents for inventions.
b. Both Switzerland and Liechtenstein are parties to the Convention on the Grant of European Patents
(European Patent Convention) of 5 October 1973. Further, both countries are parties to the PatentCooperation Treaty of 1970 and to the Budapest Treaty on the International Recognition of theDeposit of Microorganisms for the Purposes of Patent Procedure of 1977 (conventionsadministered by WIPO).
c. In the field of biotechnology, most of the patent  applications (with effect for Switzerland and
Liechtenstein) are made via the "EPO’s route". Statistically speaking, the number of applicationsvia the "national route" alone is decreasing.
d. The authority responsible for the grant of patents in the field of biotechnology (for Switzerland and
Liechtenstein) is the Swiss Federal Institute of Intellectual Property (hereinafter ”Institute”),
Ministry of Justice and Police, in Berne. When it receives national patent applications, the Institute
does not examine whether they are new and have an inventive step. It only examines if the
inventions are capable of industrial application. No velty and inventive step are left to the court, in
case of litigation. In the field of biotechnological inventions, criteria for protection are the same asthose applied in other technological fields. Thus, court decisions relating to patentability are alsoapplicable to biotechnological inventions.
e. Switzerland is party to the UPOV Convention (1978 Act). The Swiss Plant Variety Protection Law
is currently being revised in view of ratification of the 1991 Act of the UPOV Convention.
f. Revision of the Swiss Patent Law is under consideration as well.
g. It should be noted that revision of both laws is also aimed at obtaining a higher degree of
convergence with the European Community law (Directive 98/44/EC of the European Parliamentand of the Council of July 6, 1998, on the Legal Protection of Biotechnological Inventions.
Council Regulation 2100/94 of July 1994 on Community Plant Variety Rights).IP/C/W/273
Page 12
Czech Republic
Yes.
According to Section 4, paragraph c) of the Czech Patent Law No. 527/1990 Coll., patents are
not granted on plant and animal varieties and esse ntially biological processes for the production and
improvement of plants and animals. This provision is based on the Article 53(b) of the European
Patent Convention. The inventions concerning plants and animals as such provided that they meet
basic requirements of patentability do not fall under exclusion mentioned above. The application of
patent practice in the Czech Republic does not dispose of any precedent of patent claim which would
explicitly cover a plant or an animal.
Hungary
Yes.
See Articles 1(1) and 6(2) of the Patent Act.4
Japan
No.
In principle, there is no such basis . However, if inventions are liable to contravene public
order, morality or public health, they shall not be patented (Article 32 of Japanese Patent Law).
Norway
Yes.
According to the Norwegian Patents Act, Section 1, fourth indent, number 2, as it is
interpreted, patents cannot be granted for plants, animals and processes for their production.
New Zealand
No.
However, "animals" does not include human beings. Human beings are not patentable under
section 2 of the New Zealand Patents Act 1953, that is, a manner of new manufacture the subject of
letters patent and grant of privilege with section 6 of the Statute of Monopolies. The Patents Act 1953excludes inventions from patentability which are contrary to morality.
Question 2 : If the answer to question 1 is yes, please respond to the following questions:
(a) Does your patent system exclude entire plants or animals as inventions?
Canada
Yes.
To date, our courts have held that entire plants per se  and animals per se  are not patentable
subject-matter.  This matter is still under appeal before the Federal Court of Appeal.
                                                     
4 See document IP/C/W/125/Add.1.IP/C/W/273
Page 13
Switzerland5
See reply to question 1 above.
Czech Republic
No.
According to Section 4, paragraph c) of the Czech Patent Law No. 527/1990 Coll., patents are
not granted on plant and animal varieties and esse ntially biological processes for the production and
improvement of plants and animals. This provision is based on the Article 53(b) of the European
Patent Convention. The inventions concerning plants and animals as such provided that they meetbasic requirements of patentability do not fall under exclusion mentioned above. The application of
patent practice in the Czech Republic does not dispose of any precedent of patent claim which would
explicitly cover a plant or an animal.
Korea
No.
Regarding plants, only asexually reproduced plants are patentable under Article 31 of the
Patent Act.  However, there is no provision in the Patent Act that explicitly denies the patentability ofanimal per se .
(b) If your patent system does recognize entire plants and animals as inventions, does it exclude
all such inventions from being patentable subject -matter, or does it only exclude certain types of
plants or animals?  If it excludes only certain types, please identify the categories or characteristics ofinventions that are excluded.
Switzerland
6
See reply to question 1 above.
South Africa
The Patents Act, No. 57 of 1978 (as amended) ”the Act” states that a patent shall not be
granted for any variety of animal or plant or any essentially biological process for the production of
animals or plants, not being a micro-biological process or the product of such a process.
(c) Is there any other basis in your law that precludes the grant of a patent on any categories of
plant or animal inventions that otherwise are novel, involve an inventive step, are capable of
industrial application and have been adequately disclosed?
Australia
See answer to Question 1.
Bulgaria
Yes.
Article 7.1 of the Patent Law provides for exclusion from patentability of plant or animal
inventions, the prevention of publication and exploitation of which is necessary to protect ordre
public  or morality.
                                                     
5 See footnote to question 1.
6 See footnote to question 1.IP/C/W/273
Page 14
According to Article 7.3 of the Patent Law, plant varieties and animal breeds, as well as
essentially biological processes for their production, are specifically excluded from patentability.
Switzerland7
As indicated above (question 1), inventions the implementation of which would be contrary to
public order and morality cannot be patented (Article 2.a LPI). "Morality" is construed as including
human and animal dignity.
Czech Republic
Yes.
According to Section 4, paragraph (a) of the Czech Patent Law patents are not granted in
respect of inventions contrary to public interest, particularly the principle of humanity and morality.
European Communities
Yes.
Following Article 6(1) and (2)(d) of Directive 98/44/EC "Inventions shall be considered
unpatentable where their commercial exploitation would be contrary to ordre public or morality …"
and, in particular,  "processes for modifying the genetic identity of animals which are likely to cause
them suffering without any substantial medical bene fit to man or animal, and also animals resulting
from such processes" shall be considered unpatentable.
Korea
Yes.
Even though not specifically mentioned in the related Act, it is generally understood, and
stipulated in the “Examination Guideline for Inventions in Specific Fields,” that the following are not
patentable:  inventions concerning humans or human organs;  inventions in which humans are a
constituent of the invention; and methods of diagnosis, therapy, or surgical treatment for humans.Under Article 32 of the Patent Act, inventions that would contravene public order or morality, or be
harmful to public health, shall not be patentable.  Inventions lacking the description requirement are
also not patentable under Article 42.3 of the Patent Act.
South Africa
It is provided in the Act that a patent shall not be granted for an invention the publication or
exploitation of which would be generally expected to encourage offensive or immoral behaviour.
Zambia
Yes.
The Patents Act Cap. 400 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 publicmorality or law.
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 aprocess for obtaining such mixture are excluded from patentability.  Section 38 herein refers.
                                                     
7 See footnote to question 1.IP/C/W/273
Page 15
Question 3 : Other than with respect to subject-matter you defined as being ineligible to be
patented under question (2), is it possible in your territory to obtain a patent claim defined in any of
the following ways?
(a) A patent claim that is not limited to a specific plant or animal variety .
Bulgaria
See answer to question 2.c, above.
Czech Republic
There has not been such a case in implementing practice up to now.
Poland
The answer is "no" in general, however w ith reservation that it does not concern non-
biological processes.
Questions 3(a) and 3(b) would be easier to understand if they were accompanied with
practical examples. It may be so that our "No" reply to question 3(a) results from our differentcomprehension of this question. If the Secretariat had in mind any undefined plant variety the reply to
this question would be "Yes". One has to bear in mind though that each case is considered on an
individual basis, in the context of the entire app lication with a description, drawings and reservations
attached to it. As a result, giving a clear-cut "Yes" or "No" reply is not completely credible.
(b) A patent claim that is expressly limited to a plant or animal variety
.
Bulgaria
No.
See answer to question 2.c, above.
Czech Republic
There has not been such a case in our implementing practice up to now.
Poland
The answer is "no" in general, however w ith reservation that it does not concern non-
biological processes.
Questions 3(a) and 3(b) would be easier to understand if they were accompanied with
practical examples. It may be so that our "No" reply to question 3(a) results from our different
comprehension of this question. If the Secretariat had in mind any undefined plant variety the reply to
this question would be "Yes". One has to bear in mind though that each case is considered on an
individual basis, in the context of the entire app lication with a description, drawings and reservations
attached to it. As a result, giving a clear-cut "Yes" or "No" reply is not completely credible.
Romania
Yes, for animal varieties.IP/C/W/273
Page 16
(c) A patent claim that is expressly limited to a group of plants or animals, where the group is
defined through reference to a shared characteristic such as incorporation of a particular gene.
Bulgaria
The scope of protection under patents for inventions concerning plants could be restricted to
the cell ancestor of a new plant, proceeding from a new patentable plant genetic material and passing
over to the tissue plant culture obtained from that cell.  The latter may further become the ancestor of
a new plant variety or even of a higher taxon unit, but such as they are, they are subject to protection
only under the Law on the Protection of New Plant Va rieties and Animal Breeds. See also answer to
question 2.c above.
Canada
No.
The particular gene may be patentable, but not the group of plants and animals.
Czech Republic
See the replies above.
Poland
Yes, regarding plants.
No, regarding animals.
Question 4:   Is it possible to obtain a patent in your territory on a microorganism that is novel,
involves an inventive step and is capable of industrial application?
Canada
Yes.
Microorganisms, including cell lines and hybridomas, are patentable.
Korea
Yes.
See answer to question 1.
Poland
Yes.
According to Article 12(1) of the present Law on Inventive Activity of 1972 (consolidated act
of 1993), patents are not granted for new plant varieties and animal breeds as well as for biologicalprocesses for the cultivation of plants or breeding of animals. Although no explicit patentability of
micro-organisms is provided for, in practice patents are granted also for microbiological inventions.
Under the new Industrial Property Law, which is likely to be adopted in the first half of 1999,
patents will not be granted for plant varieties or animal breeds as well as essentially biologicalprocesses for the cultivation of plants or breeding of animals. It will also be explicitly stipulated that
patents will be granted for microbiological processes and the products thereof.IP/C/W/273
Page 17
Question 5 : Is it possible to obtain a patent in your territory on an essentially biological process
for the production of a plant or animal (i.e. a process limited to those acts that are necessary for
sexual or asexual reproduction of a plant or animal)? If not, please identify the legal basis under
which these inventions are deemed ineligible to be patented.
Australia
See answer to question 1, above. Section 18(2) of  the Patent Act provides that "human beings
and biological processes for their generation are not patentable inventions."
Bulgaria
No.
Article 7.3 of the Patent Law. See answer to question 2.c above.
Switzerland8
The denial of a patent on such a process is based on Article 1a of the LPI.
Czech Republic
No.
According to Section 4, paragraph c) of the Czech Patent Law No. 527/1990 Coll., patents are
not granted on plant and animal varieties and esse ntially biological processes for the production and
improvement of plants and animals.
European Communities
No.
Article 4(1)(b) of Directive 98/44/EC reads: "essentially biological processes for the
production of plants or animals " are not patentable.
Article 2(2) of Directive 98/44/EC reads: "A process for the production of plants or animals is
essentially biological if it consists entirely of natural phenomena such as crossing or selection."
Hungary
No.
Essentially biological processes are considered to be the same category as discoveries and
therefore they fall under the provisions of Article 1 of the Patent Act.
Korea
No, because that is not an "invention" under the principal sentence of Article 29 of the Patent
Act.
Poland
No.
                                                     
8 See footnote to question 1.IP/C/W/273
Page 18
Article 12(1) of the present Law on Inventive Activity of 1972 (Consolidated Act of 1993) as
well as under the new Industrial Property Law, which is likely to be adopted in the first half of 1999.
United States
No, if the claim is limited to naturally occurring essentially biological processes comprising
the steps for sexual or asexual reproduction of a plant or sexual reproduction of an animal.  Such a
claim would fail to meet one or more of the patentability requirements of utility, novelty and
non-obviousness under Sections 101, 102 and 103 of title 35, United States Code.
Question 6 : Is it possible to obtain a patent in your territory covering subject-matter that is
identical to that found in nature (e.g. a plant or animal in its natural state)?
Australia
No.
If a claim defines a product or composition per se  which already exists in nature it is neither a
“manner of manufacture” nor novel and therefore is considered non-patentable under the Patents Act.
If there has been any technical intervention of ma n to change the form of the product from that in
which it existed in nature, the product would be patentable, provided it meets the requirements of
patentability such as inventiveness and novelty.  Thus a claim to protein x, which existed in nature, isunpatentable whereas a claim to an isolated and purified protein x would be patentable.  Specific
DNA sequences are generally considered fragment s of chromosomes.  As they do not occur in
isolation in nature, they are patentable.  Methods or processes of making products that occur in nature
are patentable.
Bulgaria
No.  According to the established practice, processes and products that are identical with what
exists in nature are not patentable, for they do not meet the inventive step requirement.  In such cases,
processes for the isolation of products existing in nature, or methods for the use of processes or
products existing in nature as they are, are considered patentable.
Switzerland
9
Subject-matter that is identical to that found in nature is patentable, if 1) such subject matter is
not known at the moment of patent application, and 2) the process used for its isolation or
identification is new. All subject matter that is iden tical to that found in nature not meeting these two
conditions is considered to be a discovery, and is therefore not patentable under Swiss law.
Czech Republic
No.
According to the Czech Patent Law No. 527/1990 Coll., patents are granted to inventions
which are new, which involve an inventive step and are susceptible of industrial application. The
discoveries are not patentable. (See Section (3), paragraphs 1) and 2) of the Czech Patent Law.)
European Communities
Article 3(2) of Directive 98/44/EC reads. "Biological material which is isolated from its
natural environment or produced by means of a technical process may be the subject of an invention
even if it previously occurred in nature."
                                                     
9 See footnote to question 1.IP/C/W/273
Page 19
Following Article 2(1) of Directive 98/44/EC, "biological material" means any material
containing genetic information and capable of reproducing itself or being reproduced in a biological
system."
Japan
No.
An invention is required to be creation  under the Japanese Patent Law.  In this connection,
mere discoveries, including materials existing in nature or natural phenomena, where no creation of
technical ideas is made purposefully, do not fall under inventions.  Therefore , it is impossible to
obtain a patent which claims materials existing in nature or natural phenomena .
However, chemical substances, microorganisms and the like are to be regarded as creations
when they are humanly extracted from materials existing in nature. Therefore, those claims are
patentable.
Norway
No.
It is not possible to obtain a patent in Norway covering plants and animals in their natural
state. However, microorganisms identical to those found in nature are eligible to be patented if they
are isolated and meet the conditions for patentability.
New Zealand
No.
Subject-matter which is found in nature is patentable provided it is not claimed either in the
natural state, or does not encompass the plant or animal found in its natural state or as it is normally
found in nature.
Poland
The answer is "no" in general, but when the subject is obtained by synthetic processes,
namely by microbiological processes, the answer is "yes".
Romania
No.
Only inventions that involve a creative effort are patentable subject-matter.  Example: under
Rule 11(2)(b) of Government Decision No. 152/1992, chemical and biological substances existing innature are patentable provided that a creative effort is involved.
Slovenia
Yes, provided that usual patentability requirements are met.
United States
No.
Under US law and practice, a patent may not be granted on a claim that is limited to subject
matter indistinguishable from the form in which it is found in nature.  For example, a claim drawn to a
naturally occurring bacterium, per se, would fail to satisfy the requirements for novelty and utilityIP/C/W/273
Page 20
(Section 101 of title 35, United States Code).  However, these requirements, as well as the
requirement of non-obviousness, are considered to be met, when a claim is directed to an isolated
and/or purified composition containing naturally occurring subject matter that exhibits new or
unexpected properties.
South Africa
No.
Although this aspect is not covered specifically, the Act states that anything which consists of
a discovery shall not be an invention for the purposes of this Act.
Question 7 :  Does your patent system include any special provisions to ensure adequate disclosure
regarding inventions covered by Article 27.3(b) (for example, micro-organisms)?
Australia
Yes.
Section 41 of the Patents Act sets out the additional requirements for specifications relating to
micro-organisms.
In summary, a deposit is strictly necessary if:
(1) an invention involves the modification or cultivation of a micro-organism (other than
where the micro-organism itself is an invention); and
(2) a person skilled in the relevant art in the patent area could not be reasonably expected
to perform the invention without having a sample of the micro-organism ; and
(3) the micro-organism is not reasonably available to a person skilled in the relevant art
in the patent area.
The Patent Office would also require a deposi t if the claimed micro-organism could not be
reasonably expected to be obtained by reproduction or generated based on the information supplied in
the specification, for example where the invention resides in an organism produced by a random
mutation process or is a specific hybridoma secreting a particular monoclonal antibody.
Otherwise deposits are not required but applicants can choose to deposit if they wish.  The
Patent Office accepts that a written description can in some circumstances provide the skilled worker
with enough detail to reproduce the inventive micro-organism and that this information would be a
sufficient disclosure.
The Patent Office does not accept deposits made with institutions other than those recognised
under the Budapest treaty.  However if the invention and claims relate to a use, cultivation or
modification of a micro-organism, the office accepts  that deposits other than those made by the
applicant could be readily available as required by po int (3) above.  In that circumstance, the applicant
would not require a Budapest Treaty deposit.
The Patent Office accepts any form of deposit that is reproducible and which is accepted by
international depository authorities (including plant cell cultures, plasmids and seeds) but notes that
international depository authorities have limitations on the nature of materials they will accept and the
Patent Office is bound by any such limits.IP/C/W/273
Page 21
Bulgaria
Yes.
Article 37.1 of the Patent Law contains general provisions for ensuring adequate disclosure of
the subject matter of an invention.  In cases where the patent application refers to a biological object
which cannot be disclosed in such a way as to enable a person skilled in the art to carry out the
invention, and the said object is not generally available, the description required upon filing of the
application shall contain indication of the fact of deposition with a specifically authorized
international institution.  The deposition shall be made no later than the priority date (Article 37.2 of
the Patent Law).
Switzerland10
Yes.
Both Switzerland and Liechtenstein are parties to the Budapest Treaty on the International
Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure of 1977.
Hungary
Yes.
Hungary is member of the Budapest Treaty on the Deposit of Microorganisms (1977).
Norway
Yes.
Adequate disclosure of the patentable invention is secured through Section 8, second indent,
and Section 8a of the Patents Act. The provisions comply with the Budapest Treaty 1977 (as modified
in 1980).
New Zealand
No.
Section 10(3) of the Patents Act 1953 requires that every complete specification shall
particularly describe the invention and the method by which it is to be performed, and shall disclosethe best method of performing the invention which is known to the applicant and for which he [or she]
is entitled to claim protection.
Poland
Yes.
There are no special requirements in this respect regarding this type of inventions. As in case
of other inventions, a patent application should in clude a description of the invention disclosing its
nature in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.If the presentation of a micro-organism, which is not available to the public or can not be described in
a complete manner, is required for carrying out the invention, the said presentation to this extent can
be made by reference to the deposit of the micro-organism made in a collection of micro-organisms.
For the purpose of recognising the deposit as meeting the conditions of invention’s disclosure, a
depositary institution is obliged to make the deposit accessible for any third parties throughout patentgranting procedure and at least throughout the entire duration of the patent.
                                                     
10 See footnote to question 1.IP/C/W/273
Page 22
United States
Yes.
If the Patent and Trademark Office (PTO) concludes that it is not possible to practice an
invention involving a microorganism on the basis of the application alone, the PTO will require the
applicant to deposit a sample of the microorganism. In such situations, the applicant must make a
deposit of the microorganism in a form consistent with the microorganism deposit rules (i.e.,
section 1.801 et seq ., of title 37 of the Code of Federal Regulations).IP/C/W/273
Page 23
ANNEX 2
Explanatory notes to Synoptic Table II
Plant Variety Protection System
Question 1 : Do the laws applicable to your territory provide for a sui generis  form of protection
for a new plant variety?
United States
Yes.
U.S. laws provide for a sui generis  form of protection for sexually reproduced and tuber
propagated plant varieties, under the Plant Variety Protection Act (Section 2321 et seq. of title 7,
United States Code).
Under US law, anyone who develops a new plant variety may obtain one of three forms of
protection, two of which depend on the manner of reproduction of the plant variety:
- If the variety was developed through sexual reproduction  or tuber propagation,  the
breeder may obtain a plant variety protection certificate under the Plant Variety
Protection Act (Section 2321 et seq . of title 7, United States Code) administered by
the Plant Variety Protection Office of the Department of Agriculture.
- If the variety, other than tuber propagated plants, was developed through asexual
reproduction , the breeder may obtain a plant patent under the Plant Patent Act
(Section 161 et seq . of title 35, United States Code) from the United States Patent and
Trademark Office.
- Regardless of its method of propagation, the developer of a new plant invention,  i.e.,
a plant variety or an invention concerning plants of a higher taxonomic classification,may obtain a utility patent under the general Patent Law (i.e., an invention patent
under Section 101 of title 35, United States Code) from the United States Patent and
Trademark Office.
Zambia
No.
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, partiesare 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 ad visable, therefore, if the Plant Breeders Rights Act
was to be used in Zambia as an alternative to patenting of plant varieties in Zambia.IP/C/W/273
Page 24
Question 2:   If the answer to question 1 is "yes", does that protection conform to the standards
defined in one of the Acts of of the International Convention for the Protection of New Varieties of
Plants (UPOV)?
Romania
Yes.
Romania is not yet a party to the International Convention for the Protection of New Varieties
of Plants (UPOV). Preparations are being made to accede to the Convention – 1991 Act – and it is
considered that the legislation in force conforms with that Act.
Question 3 . If the answer to question 2 is “yes”, please  specify the Act of the UPOV Convention upon
which your legislation is based (i.e. the 1991 Act, the 1978 Act or the 1961/1972 Act).
Switzerland1
The present Federal Law on New Plant Varieties of 20 March 1975 (LPV; text notified
according to Art. 63.2 of the TRIPS Agreement on January 31, 1996 (see document IP/N/1/CHE/1 at
p. 11)) is based upon the 1978 Act. It is currently being revised in view of ratification of the 1991 Act.
Morocco
The Council of the International Convention for the Protection of New Varieties of Plants
(UPOV) has examined and recognized that the Moroccan law on the protection of new plant varieties
is consistent with the Acts of the UPOV Convention of 1978 and 1991.
Norway
Norway has acceded to the International Convention of 2 December 1961 for the Protection
of New Varieties of Plants (UPOV Convention), as revised on 23 October 1978. The Norwegian Plant
Variety Act and supplementary regulations are in conformity with this convention and partly also
conform to UPOV 1991.
South Africa
South Africa is a member of UPOV and has ratified the 1978 Convention. We have acceded
to the 1991 Convention, and our Plant Breeders’ Righ ts Act, No. 15 of 1976 ( as amended) “the Act”,
was further amended by the Plant Breeders’ Rights Amendment Act, No 673 of 1996 to bring SouthAfrica’s legislation into conform ity with the 1991 Convention. The last mentioned Act was approved
by Parliament and entered into force on 19 April 1996. The 1991 Convention has, however, not been
ratified by South Africa.
                                                     
1 The authority responsible for the grant of plant variety certificates is the Swiss Bureau for Plant
Varieties, from the Federal Office of Agriculture, Ministry of Economy. The Bureau does not proceed to anexamination as to substance. It is empowered to refer to examinations and field tests made by the authorities of
States that are Contracting Parties of the UPOV Convention.IP/C/W/273
Page 25
Question 4 . If sui generis  protection for plant varieties is provided in your territory, would any of
the following acts require the prior authorization of the right holder:
(a) acts performed for research or experimental purposes, or to develop new varieties of plants;
Switzerland
No.
According to Article 12(3) of the LPV, the authorization of the right holder is not necessary
when using the propagating material of protected varieties to breed or market new varieties
(“breeder’s exemption”). The authorization of the right holder, however, is necessary if the protectedvarieties have to be used repeatedly to produce the new varieties.
Furthermore, Article 12(1) of the LPV only prohibits acts performed on a professional
(commercial) level; therefore, all acts performed for research or experimental purposes or to develop
new varieties of plants, on a non-professional level, are not prohibited by this provision.
Morocco
No.
Article 17 of the Law states that the breeder's right does not cover:
- Acts performed privately for non-commercial purposes;- acts done for experimental purposes;- acts carried out to create new varieties as well as the acts contemplated in the second
and third paragraphs of Article 16 above, performed with such varieties, provided
that:
- the protected variety is not used repeatedly in order to produce the new 
variety;
- the new variety is not derived essentially from the protected variety if the 
latter is not itself essentially a derived variety;
- the new variety is clearly distinguishable from the protected variety;  and- acts performed by farmers for the purposes of reproduction or propagation on
their own farms using the products of the harvest obtained by planting the 
protected variety, with the exception of tree crops and ornamental and floral 
plants (farmer's privilege).
Norway
No.
However, consent is necessary if producing the new variety for commercial purposes involves
continuous use of the protected variety.
United States
No, with respect to plant variety protection certificates issued under the Plant Variety
Protection Act.IP/C/W/273
Page 26
(With respect to utility patents issued under the general Patent Law, or plant patents issued
under the Plant Patent Act, such acts would not require prior authorization from the holder of the
patent if the acts were done for purely non-commercial purposes. Acts with a commercial motivation
or purpose however, would provide a basis for a finding of infringement of the patent, if done without
prior authorization from the right holder.)
(b) acts performed to commercially exploit a variety distinct from the protected variety but
sharing its essential characteristics;
Australia
Yes, provided that:
(i) the distinct variety has been declared an essentially derived variety from the protected
variety; or
(ii) the production of the distinct variety required the repeated use of protected variety (ie 
the distinct variety is a dependant variety).
Switzerland
No.
The present LPV does not address the issue of essentially derived plant varieties. Thus, acts
performed to commercially exploit varieties that are distinct form protected varieties but share their
essential characteristics do not require the prior authorization of the right holder.
The current revision of the LPV will take into account the "essentially derived and certain
other varieties", as well as other situations prescribed by the 1991 Act of the UPOV Convention.
Japan
Yes.
Acts performed to commercially exploit a variety which falls under the following conditions
require  the prior authorization of the right holder:
(i) The variety was bred from an initial variety, while retaining the essential
characteristics of the initial variety, by selection of variation, backcrossing,
transformation by genetic engineering, etc.
(ii) The variety is clearly distinguishable from the initial variety in terms of
characteristics.
(iii) The initial variety is a protected variety and is not a variety which falls under the 
conditions (i) and (ii).
Morocco
Yes.
See answer to question 4.a above.
Norway
No, provided that the new variety is distinct from the protected variety in the characteristics
that define the latter. This will be determined on a case-by-case basis.IP/C/W/273
Page 27
(c) acts performed by a farmer of harvesting seed from his planting of a protected variety
legitimately obtained, storage of that seed, and replanting of that seed on the farmer’s land.
Australia
No, unless the taxa is one declared by regulation to be one to which the farm saved seed
exemption does not apply (currently no taxa have been subject to such a declaration).
Bulgaria
No.
In order to stimulate agricultural production, farmers are entitled to use for their own needs,
for the purpose of reproduction in their own farms, products of a harvest they have obtained through
planting in their own farms, propagating material of a variety other than the hybrid or the artificially
obtained variety, protected by a certificate.  This provision is applied only to plant species included ina list endorsed by the Ministry of Agriculture.
Switzerland
No.
Under the present law, farmers have the right to use the harvesting of (protected) seed in view
of another use for further replantings in their own holdings (farmer's privilege).
It is expected that the revised LPV will provide the possibility to grant the farmer’s privilege
through an ordinance. The farmer’s privilege is likely to be restricted to certain agricultural crops
enumerated in a list.
European  Communities
No.
The answer applies to certain agricultural crops.
Japan
No.
Where farmers legitimately obtain the seeds and seedlings of the protected variety, produce
the product of the harvest by using the said seeds and seedlings, except for which belong to a plant
genus or species which is propagated vegetatively and is stipulated by the Ordinance of the Ministry
of Agriculture, Forestry and Fisheries, and further use the said product of harvest as the seeds andseedlings on their own holdings, the effects of the breeder's right shall not extend to the seeds and
seedlings and the harvested materials obtained from them , except as otherwise prescribed by a
contract.
Morocco
No.
See answer to question 4.a above.IP/C/W/273
Page 28
United States
No, with respect to plant variety protection certificates issued under the Plant Variety
Protection Act.
(With respect to plant patents issued under the Plant Patent Act, their protection extends only
to specific acts of asexual reproduction of the protected variety, or sale or use of the plant that is the
subject of the grant. Harvesting and reuse of seeds  from such a plant involve sexual propagation of the
plant, and as such would not be covered by the plant patent rights.)
(With respect to utility patents issued under the general patent law, such acts would require
the prior authorization of the patent owner.)
If prior authorization is not required for any of the above examples of activities, is there any
requirement that the party undertaking the specified actions provide the right holder with
remuneration in any form?
Australia
No.
The exercise of PBR rights is at the discretion of the rights holder and legislation does not
stipulate remuneration except in respect of the issue of a compulsory license or acquisition. However,
in circumstances where the harvested material or product from harvested material has been produced
without a reasonable opportunity for the grantee to exercise their right on the propagative material
(e.g. through the operation of farm saved seed), and the use of that harvested material or product does
not qualify as an exemption (see answer to question (i) above), the grantee may choose to exercisetheir rights on the harvested material or product as if it was the propagative material.
European Communities
Yes.
In the case of question 4.c above, the answer applies to farmers other than “small farmers”.
Morocco
No.
See answer to question 4.a above.
Romania
No.
But the party performing the act provided in th e answer to 4.b above without the right holder's
authorization may be obliged to pay for damages.
Slovenia
Yes, only in case under c);  the farmer must pay the holder a suitable remuneration.  The
remuneration is suitable if it is sensibly lower than the amount charged fro the licensed production of
propagating material of this variety in the same area;  small farmers shall not be required to pay any
remuneration to the breeder.IP/C/W/273
Page 29
Question 5.  Would acts done privately and for non-commercial purposes require the authorization
from the right holder?
Bulgaria
No.
Article 20 of the Law on the Protection of New Plant Varieties and Animal Breeds provides
for the following exceptions to the plant breeder's rights:
"acts performed by farmers privately and for non-commercial purposes; […]."
Switzerland
No.
See answer to question 4.a above.
Morocco
No.
See answer to question 4.a above.
Question 6.  Does your legislation provide for other exceptions to the rights conferred?
Australia
Yes.
Certain compulsory licensing provisions may apply if the grantee of PBR in a plant variety
does not take all reasonable steps to ensure reasonable public access to that plant variety.  Reasonable
public access to a plant variety covered by PBR is taken to be satisfied if propagating material of
reasonable quality is available to the public at reasonable prices, or as gifts to the public, in sufficientquantities to meet demand. This entails the granting of a license to sell and to produce propagating
material of plants of that variety for sale on such terms and conditions (including the provision of
reasonable remuneration to the grantee) as is considered would be granted by the grantee in the
normal course of business.
Morocco
Yes.
Article 21 of the Law prescribes that upon expiry of a period of three years following the
delivery of the certificate or four years from the filing date of their application, any legal person
governed by public or private law may obtain a compulsory licence for this certificate if at the time of
the application, barring any valid excuses, the holder of the certificate or his successor:
- has not yet started to exploit or to make effective and serious preparations to exploit
the new variety covered by the certificate on Moroccan territory;  or
- has not sold the product covered by the certificate in quantities large enough to satisfy
the needs of the national market;  or
- if the exploitation or sale of the variety has been abandoned for more than three years
in Morocco.IP/C/W/273
Page 30
Articles 22, 23 and 24 define the conditions for the grant and the withdrawal of compulsory
licences.
New Zealand
Yes.
The Plant Variety Rights Act 1987 provides that any person may at any time after the
expiration of three years from the making of a grant, on payment of the prescribed fee, request the
Commissioner [of Plant Variety Rights] to consider whether or not reasonable quantities of
reproductive material of a reasonable quality of the variety concerned are available for purchase by
members of the public at a reasonable price.  Where such a request is made, the Commissioner shallgive the grantee concerned notice of it and a reasonable time to be heard in relation to it.
If after considering any submissions made by th at grantee, the Commissioner is satisfied that,
reasonable quantities of reproductive material of reasonable quality of the variety concerned are not
available for purchase by members of the public at a reasonable price, the Commissioner shall issue tothe person who made the request one or both of the following:
- a compulsory licence for the reproduction and sale of reproductive material of that
variety;
- an order requiring the grantee to sell to that person reproductive material of that
variety.
In considering whether or not reasonable quantities of reproductive material of reasonable
quality are available to members of the public at a reasonable price, the Commissioner shall not takeinto account any reproductive material that is available only subject to the condition that all or any of
the produce from that material must be sold or offered to a specified person, or to one of a specified
group of persons, or to a member of a specified class or description of person.
Romania
Yes.
The granting of a compulsory licence does not prevent the variety patent owner from
exploiting the variety or granting licences to third parties (Article 37(4) of Law No. 255/1998).
Question 7 . Can protection be obtained for a plant variety that was known to the public, or was
publicly available, prior to the application for sui generis protection for that plant variety, and, if so,
under what conditions (i.e. what are the time-limits during which public disclosure or availability will
not preclude the grant of protection)?
Australia
Only new or recently exploited varieties can be registered.  A new variety is one which has
not been sold with the breeder’s consent.  A recently exploited variety is one which has been sold with
the breeder’s consent for up to 12 months in Australia and for overseas varieties this limit is up to four
years (with the exception of trees and vines for which a six year overseas prior sale limit is permitted).
Bulgaria
Yes.
Plant variety is deemed to be new if, at the date of filing the application for a certificate, the
variety or propagating material of the variety or harvest thereof has not been offered for sale, sold, or
otherwise used commercially, or has been offered with the consent of the breeder in the territory ofIP/C/W/273
Page 31
the Republic of Bulgaria for not more than one year, or in the territory of any other country for not
more than 6 years concerning trees and vines or 4 years concerning any other plant species
(Article 8.1 of the Law on the Protection of New Plant Varieties and Animal Breeds).
Canada
Yes.
Protection cannot be obtained for a variety that has been sold in Canada prior to application,
or sold outside of Canada for four (4) years, or six (6) years for woody plants prior to application. The
exception to this is for “recently prescribed categories”. There is a transitional period, of one year
from the date Regulations came into effect, that permits the sale of varieties prior to application. Inthis case, varieties may have been sold in Canada after 1 August 1990, and sold outside of Canada
after 1 August 1984 for woody plants and after 1 August 1986 for all other plants.
Switzerland
Yes.
According to Article 5(3) of the LPV, “[t]he fact that a variety is itself generally known shall
in no way detract from its character of novelty unless, at the time the application was filed, the variety
had already been offered for sale or marketed in Switzerland or – for more than four years – abroad,with the consent of the breeder or his successor in title.”
The current revision of the LPV will take into account the features of the 1991 Act of the
UPOV Convention.
Czech Republic
Yes.
The Law 132/1989 Coll., on Protection of Rights  to New Plant Varieties and Animal Breeds,
in the Section 4, paragraph 2 and 3, determines the conditions for granting of plant variety. According
to this Law a plant variety is new, if:
1. it was not sold nor offered for sale
(a) in the territory of the Czech Republic for more than one year prior to filling 
the application
(b) in the territory of another state for more than six years prior to filling the 
application
2. it was sold or offered for sale without the cultivator’s consent.
European Communities
Yes.
In the case of availability within the Community: 1 year; in the case of availability outside the
Community: 4 years or, for trees or vines, 6 years.IP/C/W/273
Page 32
Hungary
Yes.
The variety shall be deemed to be new if it has not been offered for sale or marketed with the
consent of the breeder or his successor in title:
(a) in the country earlier than one year before the date of priority;(b) abroad earlier than four years or, in the case of trees and vines, earlier than six years 
before the date of priority.
Japan
Yes.
A plant variety may not be protected when it is not clearly distinguishable in terms of
characteristics from any other varieties which have been publicly known in Japan or foreign countries
before the filing of the application for variety registration.
A plant variety may not be protected when the seeds and seedlings or harvested materials of
the applied variety have been transferred in the course of business, in Japan earlier than one yearbefore the filing date of such an application for protection, or in foreign countries earlier than four
years before the filing date of such an application for protection (or earlier than six years in the case of
a variety belonging to perennial plants such as trees).  However, this shall not apply where such
transfer was made for the purpose of experiment or research, or where such transfer was made against
the will of the breeder.
Korea
Yes.
Article 13.2 of the Act provides that, among the varieties which have already been known at
the time when species or genus of the plants entitled to variety protection under the Act aredetermined in accordance with the Ordinance of the Ministry of Agriculture and Forestry, a variety
falling under any of the following category shall be entitled to protection, provided that an application
for variety protection thereof is made within one year from the date of the determination:
(i) a variety registered or specified under the past relevant laws.(ii) a variety whose protection rights are registered in foreign countries.(iii) a variety whose breeder and initial circulation date are verified.
Morocco
Yes.
Article 6 of Law No. 9-94 prescribes that a variety is deemed to be new if, at the date of filing
the application for the breeder's right, the reproductive material or propagating material or the
harvested or processed material of the variety has not been sold or otherwise transferred to third
parties by or with the consent of the breeder with a view to the commercial exploitation of the variety,
for at least one year in Morocco or at least four years, or in the case of trees or vines, at least ten years
abroad.
Besides, Article 76 provides that for a transition period of one year from the effective date of
the Moroccan Law, an application may be filed for the protection of varieties that have been offeredIP/C/W/273
Page 33
for sale, otherwise used commercially or disseminat ed in Morocco or abroad prior to the effective
date of the present law.  If that protection is granted, its duration is reduced by the number of full
years that have elapsed between the date when the variety was first offered for sale, otherwise
commercially used or disseminated and the filing date of the application.
The same rule applies, mutatis mutandis , to varieties of species added to the list of protected
species after the entry into force of the present law (Article 76).
Norway
Yes.
Protection cannot be obtained for a variety that ha s been offered for sale in Norway with the
right holder's consent prior to the filing of an appl ication for a plant breeder's right. Offering for sale
abroad that has taken place less than four years prior to the filing date does not preclude protection.
For varieties of trees and vine stock the period is six years. In other cases, public knowledge of the
variety prior to the filing date does not preclude protection.
New Zealand
Yes.
Protection can be obtained for a plant variety known to the public or publicly available prior
to the application for sui generis  protection  for that plant variety provided there has been no sale of
that variety with the agreement of any relevant owner of that variety:
(i) in New Zealand, for more than 12 months before the date on which that application
was made; and
(ii) overseas, for more than six years before that date, in the case of a woody plant, or for 
more than four years before that date in every other case.
Poland
Yes.
The duration of a variety’s being known to the public is not taken into account. However, it
must satisfy the novelty criterion. All varieties, including a variety which was not created by
discovery must satisfy the criterion of distinctness according to Article 7 of the UPOV Convention(Act 1991).
Romania
Yes.
The variety is deemed new if, on the filing date of the application for the grant of protection,
or on the priority date, propagating material or harvested material of the variety has not been sold or
otherwise disposed of to others, either by or with the consent of the breeder, for the purpose of
commercial exploitation of the new variety: (a) on the territory of Romania, earlier than one yearbefore the filing date of the application for a variety patent.
Slovenia
Yes, provided that a plant variety for which an application was filed in the Republic of
Slovenia has not been sold or commercially exploited in the territory of the Republic of Slovenia
more than one year before the filing of the application, and outside the Republic of Slovenia not more
than four years before the filing date (in case of trees and vine, not more than six years).IP/C/W/273
Page 34
United States
Yes, with respect to plant variety protection certificates issued under the Plant Variety
Protection Act.  The applicable periods of time are (a) for disclosures within the United States, oneyear, and (b) for disclosures outside the United States, (i) six years for new tree or vine varieties, and
(ii) four years for all other types of varieties.
(With respect to plant patents and utility patents, protection can be obtained, notwithstanding
a disclosure of the plant variety or plant invention up  to one year prior to the date of application for
protection.)
South Africa
No.
Varieties which are generally known to the public or which are identical to what occurs in
nature are not protectable under our sui generis system for the protection of plant varieties.
Question 8:  To be entitled to rights under sui generis plant variety protection does one have to be the
person who bred, or discovered and developed the variety, or his successor in title?
Morocco
Yes.
The entitlement to rights is reserved for the breeder, who is defined as follows:- The person who has created, discovered or developed a variety;- the person who employs the aforementioned person or who commissioned his work,
subject to any contractual provisions to the contrary;
- the successor in title of the first or the second above-mentioned person, as
appropriate.
New Zealand
Yes.
The ‘owner’ is entitled to rights in relation to any variety.  Section 2 of the New Zealand Plant
Variety Rights Act 1987 defines ‘owner’ as a person “who bred or discovered that variety, and
includes a successor of that person”.
Romania
Yes.
The breeder is entitled to the rights in a variety patent.
South Africa
Yes.
An application for the grant of a plant breeder’s right may be made by:
(1) the breeder of a new variety of a kind of plant; orIP/C/W/273
Page 35
(2) if the breeder is an employee (irrespective of whether or not he is a paid a salary)
whose duties are such that they involve plant breeders’ activities relating to the kind
of plant in question, and the new variety in question was bred in the performance of
such duties, the employer of such breeder; or
(3) the successor in title of the breeder or employer referred to in paragraph (a) and (b)
respectively.
The aforesaid application may only be made by a person who: -- is a citizen of, or is domiciled in, the Republic or a convention country or an
agreement country; or
- in the case of a juristic person, has a registered office in the Republic or a convention
country or an agreement country.
Question 9 . Can protection be predicated on identification of an unexpressed gene, on an
unexpressed set of genes present in the genome of  the plant variety, or on the characteristics of
germplasm, rather than the expressed characteristics of plant varieties derived from such genes or
germplasm?
Bulgaria
No.
Germplasm characteristics can be protected by a patent for invention, where the patentability
requirements are met.  Characteristics of a plant variety derived from such germplasm are protected
by a plant breeder’s rights certificate.
New Zealand
No.
Protection is only granted based upon characteristics of plant varieties derived from
germplasm.
Poland
Basically, for the purpose of examination as to distinctness, uniformity and stability, botanical
characteristics are used. In case of the botanical characteristics not being sufficient enough to
ascertain that a variety meets the distinctness criterion, methods with the use of genotype
characteristics are used. The latter are taken as complementary characteristics.
Slovenia
No, protection is predicated on identification of expressed characteristics of plant varieties.
United States
No, with respect to plant variety protection certificates.  The determination of novelty for a
variety is presently made through reference to the phenotype or expressed characteristics of the plant
variety.
No, with respect to plant patents, for the same reason (i.e., the evaluation of novelty and
non-obviousness of the plant variety is based on phenotypical or expressed characteristics of the plant
variety).IP/C/W/273
Page 36
No, with respect to utility patents.  If a gene is present in the plant in its natural state, its
identification alone cannot be a basis for protection, regardless whether it is expressed or unexpressed.
To rely on genes for patentability of a plant, they would have to be introduced into the plant by human
intervention.  Introduction of a gene that does not express a difference in the characteristics of theplant may render it novel and arguably nonobvious under the general Patent Law.  However, the
criterion of utility would not be met, as the unexpressed gene did not change the original utility of the
plant, as occurring in nature.
South Africa
Protection for a variety can only be obtained if it is morphologically distinguishable from any
other known variety of the same kind of plant. Pr otection cannot be obtained on differences which are
based on characteristics of the germplasm.
Question 10:  What are the conditions that your law require for protection?
Australia
A variety is registrable if: it has a breeder; and is distinct, uniform and stable.  It must also be
new or only recently exploited.
A new variety is one which has not been sold wi th the breeder’s consent.  A variety is taken
to be recently exploited if propagating or harvested material of the variety has been sold, with the
breeder’s consent, for up to 12 months in Australia.  For sales made in the territory of another
contracting party (UPOV Member State) the limit is up to four years for all taxa (with the exception
of trees and vines for which a six-year time limit on sales is permitted).
To obtain acceptance of an application and provisional protection it must be established that
there is a prima facie  case that the variety is distinct from all other varieties of common knowledge.
To obtain a grant of PBR the applicants must verify these claims normally by conducting a
comparative test growing which includes the new variety and the most similar varieties of common
knowledge.
Zambia
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, butonly if it can meet the criteria of an invention and if the complete specification "fully described the
invention 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.
Question 11:   What is the duration of protection?
Australia
In tree and vine varieties, PBR continues for 25 years from the date of granting, and in all
other varieties, for 20 years from the date of granting.
Bulgaria
The term of validity of a plant variety certificate as from its date of grant is as follows:
- 30 years for tree or vine varieties;
- 25 years for other varieties.IP/C/W/273
Page 37
Canada
18 years for all species.
Hungary
Under Article 106(4) patent protection shall have a duration of 15 years from the date of the
grant of a plant variety patent or, in the case of trees and vines, of 18 years from such date.
Korea
Under Article 56 of the Act, the variety protection right shall expire at the end of the 20th
calendar year following the date of the registration of its establishment.  For ornamental trees and fruit
trees, the right shall expire at the end of the 25th calendar year following the date of the registration of
its establishment.
Morocco
The duration of protection is 20 years for varieties used as field crops, 25 years for tree and
vine varieties and 30 years for date palm.
New Zealand
Protection in New Zealand is available for:
- 23 years for woody plants including root stock;  and
- 20 years for all other plant types.
Poland
Plant Breeder’s Rights protection starts from the date of grant and its  term is:
- 30 years with respect to grape-wine varieties as well as trees and their rootstocks,
- 25  years with respect of other varieties.
Romania
The duration of protection is 25 years from the date of granting of the variety patent. For new
fruit tree, vine and ornamental tree varieties the duration of protection is 30 years from the date of
granting of the variety patent.
United States
25 years from date of issue for vines and trees, and 20 years from issue for all other varieties
under a plant variety protection certificate. In addition, 20 years from filing date for patents.
South Africa
For trees and vines - 25 years; and in all other cases - 20 years.
__________