In 1994, most of the 125 participating governments signed the agreement on Trade-Related Intellectual Property Rights (TRIPS), which was part of the new GATT (or WTO, currently 142 members). The agreement obliges member states, inter alia, to adjust their patent laws and to grant patent protection for any invention in all fields of technology. Inventions related to biological materials, such as genes, markers, transformation methods and tools, etc. are not explicitly excluded from patent coverage, but plants and plant varieties may be excluded from patent protection. Plant varieties, however, are at least to be protected by an "effective sui generis system”. Countries may thus opt for the development of a protection system, specifically designed for the protection of varieties, as long as they stay within the general rules of TRIPS and that the system is ‘effective’. This latter word is however not clear; discussion is ongoing whether effective means that ‘sufficient’ protection is given to the breeder to recoup the investment, or whether effective means that the right can be ‘effectuated’ (enforced).

The WTO TRIPS Agreement establishes minimum requirements for IPRs. It is powerful not only because of its substance, but because disputes under it are resolved by the effective WTO dispute settlement body. There have already been some WTO disputes involving the TRIPS Agreement, but so far none of them have related directly to the conservation of biodiversity, or genetic resources.

TRIPS Article 7 lays out the objectives of the Agreement, which are to:

“…contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

The agreement covers five broad issues:

• how to give adequate protection to intellectual property rights
• how countries should enforce those rights adequately in their own territories
• how to settle disputes on intellectual property between members of the WTO
• special transitional arrangements during the period when the new system is being introduced.

The Agreement covers several forms of IPRs, including copyright, trademarks, geographic indications, trade secrets, and patents, all of which may be important for the breeding industry. Of these, patenting is likely to be the most relevant to breeding research (and the sui generis system for practical plant breeders), although in the commercial seed sector trademarks and trade secrets may be considered at least as important. These rights are to be enforced by civil penalties and in some cases, by criminal penalties.

Further reading on TRIPS