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13 Austl. J. Asian L. 1 (2012-2013)

handle is hein.journals/ajal13 and id is 1 raw text is: Australian Journal of Asian Law, 2012, Vol 13 No 1, Article 1: 1-23

Plant Variety Protection and Traditional Agricultural
Knowledge in Southeast Asiai
Rajeswari Kanniah* and Christoph Antons*
This article provides an overview of the emerging plant variety protection (PVP) systems in Southeast Asia. The case studies
are from countries that form part of the regional Association of Southeast Asian Nations (ASEAN), mainly Indonesia,
Malaysia, Philippines and Thailand. The focus will be on the intersection between intellectual property rights (IPRs) and
popular demands for the protection of the traditional knowledge (TK) of local communities. Factors that fuelled the emergence
and shaped the content of the PVP laws were the obligation to comply with art 27(3)(b) of the Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS Agreement), aspirations for the development of the biotechnology industry,
avoidance of possible sanction under the US 'Special 301' procedure, Free Trade Agreements (FTAs), the role played by the
International Union for the Protection of New Plant Varieties (UPOV), technical assistance from UPOV member countries,

animals, and 'essentially biological processes for the production 01 plants and animals may be
exempted from patent protection. Where patent protection is not provided for plant varieties, some
1 The research for this article was conducted in the context of the 'IP in Asia' project of the Australian Research Council
Centre of Excellence for Creative Industries and Innovation (CCI). The views expressed herein are those of the authors
and not necessarily those of the Australian Research Council or CCI. The authors would like to thank an anonymous
reviewer for helpful comments on an earlier draft of this article.
Research Associate, School of Law, Deakin University, Melbourne.
*    Chair in Law, School of Law, Deakin University, Melbourne; Chief Investigator, ARC Centre of Excellence for Creative
Industries and Innovation; Affiliated Research Fellow, Max Planck Institute for Intellectual Property and Competition
Law, Munich; Senior Fellow, Center for Development Research, University of Bonn.
2    Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C to the Agreement Establishing
the World Trade Organization, opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January
1996).
3    The negotiating history reveals that there were two approaches presented - the US, Japan, the Nordic countries and
Switzerland wanted broad patent coverage for plants and living organisms. Most developing countries and the
European Union rejected this approach. A plant variety may be patented in the US, Australia and Japan while this is
not the case in Europe. See Stewart, 1993: 2294.

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