The Journal of World Intellectual Property (2008) Vol. 11, no. 2, pp. 120–138 doi: 10.1111/j.1747-1796.2008.00337.x
Intellectual Property Protection for Plant Varieties in Jordan Bashar H. Malkawi and Haitham A. Haloush Hashemite University
The protection of plant varieties is an aspect of intellectual property rights. In Jordan, while some attention has been paid to traditional rights such as copyright, trademark and patent, until recently, virtually no attention has been paid to intellectual property rights with respect to plant varieties. This article reviews the development of intellectual property rights in Jordan for new plant varieties. This article then examines the Law on Protecting New Varieties of Plants. Particularly, the examination is based on comparison with the International Convention for the Protection of New Varieties of Plants and the Agreement on Trade-Related Aspects of Intellectual Property Rights to determine the extent to which the Jordanian law meets the rules of these international treaties. To conclude, the article finds that while the Law on Protecting New Varieties of Plants is a landmark in the development of intellectual protection in Jordan, there are certain issues that need to be addressed. To help improve the existing protection for new plant varieties, the article suggests certain actions that can be taken. Keywords Jordan; intellectual property; plant varieties protection; UPOV
Jordan’s economic reforms, which originated in the early 1990s, have been fostered by joining the World Trade Organization (WTO). The establishment of enforceable intellectual property rights in Jordan was a hallmark of acceding to the WTO (Yerkey and Pruzin, 1999). Yet, the emergence of a regime for new plant varieties was particularly slow. The slow development of such a regime is attributable to several factors including the following: (1) Jordan’s historic attitude toward protection of intellectual property rights (Carroll, 2001); (2) the higher priority attached to copyrights, patents and trademarks that have broader application; (3) the delayed reaction to the increase in scientific capability to create new varieties through genetic modifications (Garduno and Pietrucha, 2003); (4) the perceived strategic and cultural significance of staple food that militates against the creation of a private property rights regime (Hakimian and Nugent, 2004); and (5) the perception that a strong intellectual property rights regime, particularly in this sector, inequitably enriches developed countries at the expense of developing countries. As a result of this state of affairs, breeders of new plant varieties had virtually no protection for their fruits. This affected the development of agriculture in Jordan through lack of investment in developing new plant varieties and thus diminishing the opportunity of increased production and sales (Momany, 2001). Fortunately, considerable progress has been made in the area of protecting new plant varieties. Jordan established a separate legal regime for special protection of 120
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
plant varieties, and enacted the Law on Protecting New Varieties of Plants (hereinafter the Law).1,2 The objective of the Law is to establish and protect property rights in new plant varieties so as to foster the development of agriculture by creating a regime for the breeding and utilization of such varieties. Despite limited protection for plant varieties compared with the US and European standards, which granted rights to plant varieties as early as 1930 (Fowler, 2000; Van Overwalle, 1999), the enactment of the Law was certainly a landmark step taken by Jordan. The enactment of the Law on Protecting New Varieties of Plants has encouraged the registration of plant varieties. From 2004 to 2007, the number of applications for plant variety rights stood at eight. Foreigners filed five plant variety protection applications in Jordan as of 2007. The total number of plant variety rights in force at the end of 2007 amounted to seven. Two plant variety titles were granted to Jordanians. In 2005, Jordan registered its first local plant variety by awarding protection to a new breed of grapes (Jordan Times, 2005).3 Moreover, BerryGene, a fruit-growing company, has protected its innovation in Jordan—a new breed of strawberry.4 The blue figs of Wadi Seer, the yellow wheat of Maan and the Roman olives are only some of the other distinct Jordanian plant varieties that should be protected. The small number of plant variety applications and titles granted could be attributed to the new age of the Law. Moreover, it was only on 24 October 2004 that the Office for the Protection of New Plant Varieties was set up. Recently, the Ministry of Agriculture issued Instruction No. G/45 of 2006 regarding the Structure of the Committee for the Protection of New Plant Varieties. In the coming years, the number of applications and titles for plant variety rights could grow as agencies become more familiar with the Law, and when the necessary regulations and instructions are issued. Intellectual property rights protection of new plant varieties may boost sales and exports of Jordanian agricultural products to the world market. Although empirical evidence is lacking on the volume of Jordanian sales and exports related to the protection of new plant varieties, it should not be huge. Based on the available literature, the protection of plant varieties has a modest impact on agricultural sales and exports of both developed and developing countries. For instance, transferability of varieties across countries with protection of plant varieties is limited to a few European countries such as Germany, France and the United Kingdom. Other than these countries, intra- and inter-regional flows of protected plant varieties have been minuscule (Singh, 2002; Srinivasan et al., 2003). There is no evidence of the growth rate in the number of firms working in the breeding industry. Further, evidence of the impact of the protection of plant varieties on the introduction of new varieties is mixed. In addition to the protection of plant varieties, a number of factors determine the rate of introduction of new varieties. These factors include improvements in breeding techniques and changing acreage (Knudson and Pray, 1991; Rangnekar, 2000). r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
121
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
In sum, the enactment of the Law bears the promise of additional export and trade opportunities. However, based on the experience of developed and developing countries, these opportunities should be limited in size or volume. The enactment could also pave the way for overseas varieties to be introduced into the Jordanian market, providing greater comfort to breeders who might not otherwise do so without the protection of the Law. Elements of the Law on Protecting New Varieties of Plants The article in this section will take up a discussion of the Law by considering its essential features. The Law, which consists of 31 articles, will be analyzed in four parts: (1) protectability requirements; (2) scope of rights; (3) limitations on scope; and (4) term of protection. Protectability Requirements The Law sets certain requirements (novelty, distinctiveness, uniformity and stability, and proper designation or name) to afford protection to new plant varieties. In addition, the variety must belong to a plant species that is included in the plant varieties catalogue issued by authorities.5 The catalogue of protected varieties includes apple, cucumber and tomato. If a variety is not listed in the catalogue, the Law does not afford protection even if the other requirements, as explained below, are satisfied. Plant varieties must meet the prerequisites of novelty, distinctiveness, uniformity and stability, and be properly designated or named in order for these varieties to be granted protection. According to the Law, novelty means that the variety must not have been: (1) sold before the date of application; (2) sold within Jordan more than 1 year before the date of application; or (3) sold outside Jordan more than 4 years (6 years for vines and trees) before the date of application.6 The novelty requirement is a matter of legal assessment, not technical assessment. In other words, novelty requires checking the date of application to determine whether the sale occurred before or after lodging the application. Distinctiveness denotes the difference that distinguishes this variety from all other varieties before the date of application.7 Uniformity refers to the variety’s retention of its relevant characteristics or specific properties after reproduction.8 Stability refers to the variety’s retention of such characteristics after repeated reproduction or a specified reproduction period. As compared with the requirement of novelty, the conditions of distinctiveness, uniformity and stability are subject to technical examination, whereby a technical expert is required to give an opinion on these matters. Furthermore, plant variety designation or name is subject to certain conditions. The Law specifies that the denomination of the variety must be distinctive.9 The designation cannot consist entirely of numerals; rather, a designation combining letters and numbers is acceptable as the variety denomination. The denomination 122
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
cannot be contrary to morality, nor be misleading with respect to its characteristics, properties or the identity of its breeder. Any party who markets propagating material for a protected variety must use the denomination, even after the expiry of the breeder’s right in that variety. The Law expressly provides that when a variety is offered for sale or marketed, it shall be permitted to associate a trademark, trade name or other similar indication with a registered variety denomination. Unfortunately, this arrangement would seem to invite arguments over what really constitutes the unprotectable variety denomination as opposed to the protectable accompanying mark. Scope of Rights The Law grants exclusivity to holders of plant variety rights to prevent others for example from selling or producing the plant variety without the holder’s permission. The right of exclusion is considered an integral part of the protection granted to new plant varieties. This right rewards holders for their contributions and provides the incentive to develop new plant varieties (Locke, 2007). However, the Law provides for certain exemptions from the exclusive rights of holders. These are experimental and save seed exemptions. The exclusionary rights given by the Law apply to the propagating material, the harvested material, the products directly made from the protected variety and any plant varieties that are essentially derived from the protected variety. The right holder, in article 15 of the Law, can exclude any person, without his authorization, from producing or reproducing, selling, offering for sale, conditioning for the purpose of propagation, importing or exporting and stocking for commercial purposes any breeding material for which variety rights have been awarded. Thus, the Law provides a cause of action for infringement against any person who, inter alia, undertakes to sell or market the protected variety, multiply or propagate it ‘‘for growing purposes’’. However, based on article 16, the exclusive rights of a plant breeder are subject to several exemptions: an experimental exemption and a save seed exemption. First, no authorization is required if the protected variety is used for plant breeding or other experimental activities. The crucial issue presented by the experimental exemption is the definition of ‘‘plant breeding or other experimental activities’’. The plain language of the Law does not determine the extent or the scope of experimental activities. Moreover, there is no legislative history that would help in defining the exact meaning of these vague terms. The experimental exemption raises several questions. Does the experimental exemption shield from infringement only genuine, bona fide experimental activities? Does simple duplication of a protected plant variety represent an infringement case? Or does the use of a protected plant variety to develop a hybrid or a different variety rather than produce the protected variety constitute infringement? The Jordanian legislator should intervene to answer these questions and interpret the terms ‘‘plant breeding or other experimental activities’’. r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
123
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
The second exemption, known as farmer’s privilege, provides that no authorization from the holder of plant varieties is needed in the case where farmers use for propagating purposes the product of the harvest that they have obtained by planting, on their own holdings, the protected varieties listed in the law (Halewood, 1999). Thus, the second exception, one of the pillars of the plant variety protection system, permits farmers to retain seeds from crops grown in subsequent seasons to produce subsequent crops, but they could not sell such seeds to others. On the basis of this exemption, farmers do not have to buy new seeds in each planting season. In the context of Jordan, a farmer’s privilege is quite important because it would mitigate the impact of the prohibitive prices for seeds sold by large agribusiness producers. Limitations on Scope of Rights (Compulsory Licensing) In addition to the experimental and save seed exceptions stated in article 16, the compulsory licensing provision in article 21 provides a venue for a person other than the variety rights holder to use the new variety. The Minister of Agriculture can grant a licence to a third party to use the plant variety without the authorization of the holder. It is important for the Law to include a compulsory licensing safeguard so that the government can adopt measures when required to protect vital interests such as food security by increasing the supply of production and protect the public from the high cost of varieties.10 The Law, however, imposes certain restrictions on the use of compulsory licensing. First, there must be public interest that merits the issuance of compulsory licence for the use of new plant varieties. The Law does not provide examples or explanations of what public interest would be. An example of public interest that could justify the issuance of a compulsory licence is the need to maintain an adequate food supply. The absence of clear parameters of ‘‘public interest’’ may make the compulsory licensing system subject to abuse. Second, the variety right holder should receive a fair compensation for the use of his new variety. Again, the Law does not provide a methodology or factors that would be used to determine when compensation is fair. Further regulations or rules could be developed to provide examples for cases of ‘‘public interest’’ and determine the way ‘‘fair compensation’’ is calculated. The compulsory licensing language of the Law has several shortcomings. For example, the Law is silent that as a condition for issuing a compulsory licence the variety rights holder should first decline to authorize voluntarily any other person to use his protected variety. The Law does not limit the scope of licensees. Therefore, the licensees may include competitors of the holder of variety rights. There is no time limit imposed on the duration of a compulsory licence use. For example, akin to compulsory licensing in patents, the Law should have created 3-year compulsory licences. There is no provision that would lead to the termination of the compulsory licence if the circumstances that led to its issuance cease to exist. Further, the variety rights holder does not have the right to appeal, before an independent 124
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
administrative body or court, an order to issue a compulsory licence or the amount of compensation. The lack of these guarantees for the right holder could exert a chilling effect on the introduction of new plant varieties. Term of Protection Under the Law, different varieties may have different terms of protection. Tree and vine varieties have a protection term of 25 years, while other plant varieties have a term of 29 years from the date of filing the application.11 Annual fees must be paid during the term to maintain the variety rights, and further examination and testing may be required by the approval authority during the term.12 The Law does not contain a provision that would authorize an extension of the protection term to the extent that there has been a delay, which is attributable to the Office for the Protection of New Plant Varieties at the Ministry of Agriculture, in the application prosecution. As result of delay in prosecution, holders of plant varieties effectively receive less than the full term of their varieties. Therefore, a term extension is deemed necessary to compensate for the delay, especially considering that protection term for plant variety is calculated from the date of filing the application. A reduction in protection term for plant varieties may reduce the incentive to invest in new varieties. Moreover, an extension of protection term for plant varieties is not unreasonable or unrealistic as a precedent exists in extending the patent term for pharmaceuticals.13 Procedures for Granting Protection to New Plant Varieties The Office for the Protection of New Plant Varieties, which was established in late 2004 in the Ministry of Agriculture, is responsible for the award of variety rights.14 The Office for the Protection of New Plant Varieties has the authority to receive and examine applications for the award of variety rights. Because it was established recently, the Office for the Protection of New Plant Varieties has an elementary structure. For example, the Office has a limited number of examiners with a limited background in intellectual property.15 Persons entitled to apply for plant variety protection include individuals, whether locals or foreigners, and a group of individuals (work unit) if breeding came as a result of common efforts.16 In the event of multiple individuals who develop the same new plant variety, the variety rights are awarded to the first applicant.17 However, in fairness, the variety rights should be awarded to the applicant who first completed the breeding of the new variety rather than to the first applicant. An employment contract may also determine the person entitled to apply for protection.18 As a general rule, the employer enjoys variety rights in newly developed plant varieties. If the employee conducted the breeding outside his scope of employment and without making use of the employer’s materials, the employee is then entitled to the new plant varieties. The Law, in article 7, allows a foreigner to apply for variety rights. The Law allows a foreigner to apply with regard to all listed varieties without limitations on r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
125
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
the type of variety. Foreign applications are to be handled only by a local legal agent such as a Jordanian lawyer. In the absence of any legal agency, a foreign person has no right to apply for protection in Jordan. An applicant who first files overseas may be entitled to priority based on a treaty for the protection of intellectual property to which both Jordan and the applicant’s country have acceded, provided that the application is filed within 12 months of the overseas application.19 To prove his priority claim, the Office for the Protection of New Plant Varieties may require the foreign applicant to submit any necessary documents such as a copy of the overseas application. The Law sets out the examination procedures in articles 10–12. All applications for variety rights protection must be submitted in accordance with the prescribed written forms.20 The application must contain a description of the variety highlighting its novelty, distinctiveness, uniformity and stability. The Law requires one new plant variety per application.21 If there are related plant varieties, then documents must show unity among these varieties. This procedure would allow for claims to different but related plant varieties to fall in the same application. The Law, in article 12, requires confidentiality during all stages of the examination process of pending applications. However, the Law allows publication of specified information about pending applications that include the variety name and the applicant’s name. After the application is accepted, the Office for the Protection of New Plant Varieties issues a preliminary acceptance order. Then, any person has 90 days to raise objections over the initial acceptance order.22 If there is no objection, the applicant then pays an examination fee and the Office for the Protection of New Plant Varieties undertakes a substantive examination.23 In practice, however, the Office for the Protection of New Plant Varieties relies on the substantive examination results of a corresponding application of foreign plant varieties offices that granted the corresponding plant variety rights (Muwahhad, 2007). The Office for the Protection of New Plant Varieties resorts to this practice to expedite the examination process and facilitate the task of examiners in Jordan who would only examine the application with respect to formalities. It would be better if this practice is codified so as to set forth the procedures under which plant variety examiners in Jordan may accept the examinations carried out by other foreign offices. Moreover, it remains to be seen how Jordanian courts would rule on a variety right granted in Jordan based on the examination results of foreign plant varieties’ offices. The empirical analysis suggests that the examination of a plant variety application is slow. The average pendency time for examining an application is 12–24 months (Ministry of Industry and Trade, Jordan, 2007). Although some of the delay is due to failure of the applicant to provide the Office for the Protection of New Plant Varieties with the required documents, in most cases the delay may be attributable to the Office itself. To minimize any delay, the Office for the Protection 126
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
of New Plant Varieties could communicate with applicants electronically. Furthermore, the Office could accept electronic submissions of applications rather than relying on filing hardcopies of papers, which is still the norm. Certificates of variety rights are awarded after successful substantive examinations. Within 60 days of notification of the rejection decision by the Office for the Protection of New Plant Varieties, an unsuccessful applicant may appeal that decision to the High Court of Justice.24 As of January 2008, no such appeals have been filed. Thus, there is no judicial guidance as to jurisdictional and other issues governing proceedings for handling disputes over variety rights. The variety rights themselves are assignable.25 Variety rights may be forfeited by failure to pay the required annual fee or failure to submit breeding materials or necessary documents during the term as required.26 Moreover, variety rights can be voided if the variety is determined to no longer retain the characteristics and specific properties upon which the variety right was granted.
Enforcement Actions The lack of effective enforcement of intellectual property laws in Jordan has been a long-standing problem. The United States has long been complaining that Jordan does not enforce its intellectual property laws effectively. In fact, the discontent with the enforcement of intellectual property laws in Jordan nearly led the United States to impose trade sanctions on Jordan in 1998 (Yerkey, 1999). In the context of protecting the rights of plant varieties, the holder of these rights can enforce them by civil action.27 Civil courts have original, exclusive jurisdiction over civil actions arising under the Law. On the other hand, the High Court of Justice takes exclusive jurisdiction over decisions of the Office for the Protection of New Plant Varieties. The variety rights holder can request the court, during civil proceedings, to take certain precautionary procedures, provided that he submits a bank or monetary bail.28 The purpose of this bail is to prevent the misuse of the precautionary procedures. Precautionary procedures include ceasing the violation, impounding the variety subject to violation or safeguarding evidence. The Law goes even further by allowing the court to adopt precautionary procedures without notifying the alleged infringer if the plant variety holder can prove that a violation is imminent and likely to cause him irreparable harm.29 The alleged violator can ask for damages if he proves that the right holder’s case has no merits.30 Finally, in article 29.e of the Law, the court can order the confiscation and destruction of materials and tools used in committing the infringement. The Law does not specify what kind of relief the variety rights holder can seek in court. There is no obvious reason why the Law does not specify the type of relief or remedy. Presumably, the Law left the matter of relief to the rules of civil procedure, which, among other things, deal with this matter (El-Qudah, 1998). The holder could seek all the civil remedies available because a plant variety case is r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
127
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
considered a civil case heard before civil courts, such courts having exclusive jurisdiction. When the infringement is serious, the violator could face criminal charges.
Union for the Protection of New Varieties of Plants The international agreement relating to the Jordanian Law on Protecting New Varieties of Plants is the International Convention for the Protection of New Varieties of Plants (UPOV Convention). The UPOV Convention emerged out of recognition of the need for protection of plant variety rights on an international basis, i.e. a system of uniformity from country to country regarding the rights of plant breeders, and the need for protection of plant varieties, which had not met the requirements of patent protection, therefore necessitating a separate regime (Oguamanam, 2006; Ruby, 2004). The UPOV Convention was adopted on 2 December 1961, and subsequently revised on 10 November 1972, 23 October 1978 and 19 March 1991. The UPOV’s membership has expanded beyond its original core of European countries and now includes many developed and developing countries (UPOV Report on the Impact of Plant Variety Protection, 2005). Countries that are parties to the UPOV Convention constitute the Union for the Protection of New Varieties of Plants, an intergovernmental organization based in Geneva. Jordan began to recognize the need to protect plant variety rights in the late 1990s. Jordan joined the UPOV 1991 Act on 24 October 2004 (Membership, 2007). The adoption of plant variety protection by Jordan was determined by the need to accede to the WTO and to comply with bilateral trade agreements such as the US–Jordan Free Trade Agreement (Rugaber, 2001; Yerkey and Pruzin, 1999). The Jordanian Law on Protecting New Varieties of Plants and the UPOV 1991 Act are generally consistent. However, there are several differences between them. The UPOV 1991 Act protects all varieties of plants.31 In contrast, Jordan currently limits the scope of protection to certain listed plant varieties such as cucumber and tomato. This limited protection is reasonable if one takes into account the nature of Jordan’s agriculture, which is limited to certain genera or species. In addition, the institutional requirements of a universal coverage could prove substantial. As time passes, Jordan could add more varieties to its list. The UPOV 1991 Act protects plant varieties as long as they were new,32 distinct,33 uniform34 and stable.35 These four requirements of the UPOV 1991 Act are similar to the requirements contained in article 5 of the Jordanian Law on Protecting New Varieties of Plants. Like the Law on Protecting New Varieties of Plants, in articles 6 and 7, the UPOV calls for non-discrimination against foreign applicants and recognition of the original application date within any member jurisdiction for purposes of priority.36 Under article 14.1, the UPOV 1991 Act extends the range of acts requiring the breeder’s authorization to conditioning for the purposes of propagation, exporting, importing and stocking for any protected purpose. The language of the UPOV 1991 128
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
Act mirrors article 15.a of the Law. Furthermore, although occasional reproduction does not require breeder’s authorization, breeder’s rights are extended under article 14.1 to variations that are essentially derived from the protected variety and varieties that are not clearly distinguishable from the protected variety (Hanning, 1996).37 In other words, the UPOV 1991 Act extends breeder’s rights downstream to derived and not clearly distinguishable varieties. In a manner similar to the UPOV 1991, article 15.c of the Law accommodates essentially derived varieties and varieties that are not clearly distinguishable from the protected variety. Article 15 of the UPOV 1991 Act, like article 16.a of the Law, makes exceptions for private, non-commercial acts and for acts done for experimental purposes. Article 15.2 goes even further by providing an optional exception for propagation by farmers of the product of their own harvest or their own holdings (Nelson, 2005).38 This optional exception is comparable to article 16.b of the Law. The compulsory licence of a plant variety under the Law is consistent with the UPOV 1991 Act, which permits restrictions on the exercise by the breeder or his successor-in-title of the exclusive right for reasons of public interest, provided that every effort is made to ensure the payment of equitable remuneration.39 In this context, the language of article 21 of the Law is similar to that of the UPOV 1991. The UPOV establishes protection for plant varieties, which gives the holder a right to exclude others from reaping profits for a period of time. Rights are granted for a limited period of time: typically 25 years for trees and vines and 20 years for other plant varieties.40 Similarly, under article 18 of the Law, tree and vine varieties enjoy 25 years of protection, while other varieties have only 20 years of protection. The UPOV 1991 Act provides that plant variety certificates may be annulled when the varieties fail to meet the conditions of novelty and distinctness.41 Certificates may also be cancelled, but only when the varieties fail to meet the conditions of uniformity or stability as well as the following formal requirements: the breeder failed to provide the authority with the information, documents or materials deemed necessary for the maintenance of the variety (namely, its stability); the breeder failed to pay maintenance fees; and the breeder did not propose a suitable denomination to replace the denomination previously submitted and that has been cancelled after the grant of the right. The grounds for annulling or canceling plant varieties in the UPOV 1991 text are carried forward literally in articles 22–23 of the Law. The UPOV 1991 Act omits the prohibition on dual patent and plant variety protection for plant varieties.42 The removal of the prohibition creates the opportunity for the rapid expansion of both forms of protection in other countries. For example, the United States provides standard utility patent rights for plant varieties in addition to plant breeder rights (Kesan and Janis, 2002). However, under the present Jordanian Patent Law, a specific prohibition for patenting was created in article 4 for plants and animals or essentially biological processes for the production of plants or animals. In other words, article 4 of the Patent Law prevents patenting r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
129
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
of plants whatsoever. Thus, for example, plant parts cannot be patented. Indeed, the Patent Office would be violating the law if it were to grant such as a patent. If the Jordanian law was to grant patent protection for plant varieties, drawing a clear line between what is eligible for patent protection and what is eligible for sui generis protection would be potentially quite difficult. According to article 2 of the Law on Protecting New Varieties of Plants, a plant variety is defined as ‘‘a plant grouping within a single botanical taxon of the lowest known rank, which grouping . . . can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes’’. Given the variability in plant groupings within different taxa, such a definition of plant variety is sure to vary in breadth from one plant taxon to the next. Consequently, the delineation of what is suitable for sui generis protection from what is suitable for patent protection would be increasingly challenging. It would appear much more desirable for Jordan to maintain a single form of intellectual property protection for plant varieties, i.e. the sui generis protection system. There are also strong reasons from the point of view of traditional knowledge and agricultural development in a developing country to exclude patent protection for plants.43 Patents on plant varieties give legal monopoly rights over plant genetic resources in a way that restricts the flow of information and materials. Many developing countries fear that patenting plant varieties could lead to economic exploitation by developed countries. Plant germplasm has become increasingly valuable for breeding efforts. Inventors from developed countries can utilize plant genetic resources and traditional knowledge of developing countries for breeding or research purposes without sharing royalties from any newly developed plant variety with the host country that produced the predecessor varieties (Carlson, 1996; Longacre, 2003). Developing countries are fearful that patent protection for plant varieties will benefit inventors from the developed countries but fail to protect their own plant genetic resources (Kohls, 2007). Some countries, like India and Australia, provided provisions for benefit-sharing by local communities by requiring that anyone seeking access to the germplasm sign a material transfer agreement covering derived varieties (Jain, 1999; Nwabueze, 2003). The material transfer agreement obliges the innovator of a derivative variety to make a stipulated compensation.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) The WTO TRIPS is a revolution in intellectual property protection because for the first time intellectual property is protected in the scope of international trade agreements (Sell, 2003). Before TRIPS, there was no uniform standard of intellectual property protection and countries were free to establish their own intellectual property laws (Nwabueze, 2003). The TRIPS sets a uniform and minimal standard for the protection of intellectual property. 130
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
Any country acceding to the WTO is required to comply with the TRIPS’s requirements. Therefore, when Jordan acceded to the WTO, it made the promise that it will implement fully the obligations under TRIPS upon its accession to the WTO without recourse to any transitional period (World Trade Organization, 1999). If Jordan did not meet the requirements of TRIPS, it could expect sanctions to be imposed by the United States and other developed countries (Yerkey, 1999). According to the general principles of TRIPS, members shall accord nationals of other member states no less favorable treatment than their own nationals regarding the protection of intellectual property.44 When Jordan entered the WTO, it agreed to provide no less favorable treatment to the nationals of other countries such as the United States. According to article 7 of the Law on Protecting New Varieties of Plants, a foreigner is permitted to apply for plant breeder’s rights and receive the same treatment as Jordanians. Therefore, the protection Jordan grants to foreign holders of plant varieties is consistent with TRIPS rules. The TRIPS requires WTO members to provide some form of intellectual property protection for plant varieties. Specifically, the TRIPS requires WTO members to provide protection of plant varieties through either ‘‘patents’’, an effective ‘‘sui generis system’’ or any combination thereof.45 The TRIPS does not give a definition for an effective sui generis system (McCabe, 1998). However, it is widely believed that it refers to a system modeled after UPOV (Cullet, 2004). The TRIPS requirement of providing patent protection for plant varieties contradicts Jordan’s Patent Law of 2001. The Patent Law of 2001 provides, in article 4, that plants are not eligible for patent protection. Jordan excludes plant varieties from its patent law scope because plant breeding methods are perceived to lack an inventive step required for patent protection (Muwahhad, 2007). Moreover, it could prove impossible to produce a written description sufficiently detailed enough to enable a person skilled in the art to reproduce the invention, thus making plant variety patent unworkable. The first reason for the exclusion of plant varieties from patenting is a mistaken perception. Some traditional breeding techniques can involve an inventive step. As far as the issue of disclosure and description is concerned, other biotechnological inventions may also not meet the disclosure and description requirement. In addition to the disclosure and description requirement, Jordan could require a sample to be deposited in a publicly accessible place. With the sample deposit solution, plant varieties could be patented. At any rate, Jordan had to develop an alternative plant protection system in order to comply with TRIPS. Jordan passed the Law on Protecting New Varieties of Plants to pave the way for a system of plant breeders’ rights. Thus, Jordan met the requirement of TRIPS by granting protection to plant varieties through specific law. r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
131
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
Conclusion Unlike the United States and the European Union countries, Jordan moved more slowly to protect intellectual property rights in new plant varieties. It was only in 2004 that Jordan acceded to the UPOV. The adoption of plant variety protection by Jordan was determined by the need to accede to the WTO and to comply with bilateral trade agreements rather than by a perception about the advantages of providing protection to new plant varieties. Generally, the Law on Protecting New Varieties of Plants follows the pattern of the international regime on the protection of new plant varieties. For example, the Law protects plant varieties if they are new, distinct, uniform and stable. The Law grants holders of plant varieties certain rights that include conditioning for the purposes of propagation and exporting and importing. Furthermore, the Law makes exceptions for private, non-commercial acts, for acts done for experimental purposes and compulsory licensing. The Law also provides protection for plant varieties for a limited period of time. Specifically, tree and vine varieties enjoy 25 years of protection, while other varieties have only 20 years of protection. The Law on Protecting New Varieties of Plants, however, differs in certain aspects from the international instruments on protection of new plant varieties. For instance, the UPOV 1991 Act protects all varieties of plants. On the other hand, the Law on Protecting New Varieties of Plants provides protection for listed varieties only. This limited protection is reasonable if one takes into account the nature of Jordan’s agriculture, which is limited to certain genera or species. In addition, the institutional requirements of a universal coverage for varieties could prove substantial for Jordan at this stage. While the Law on Protecting New Varieties of Plants has come to occupy the main venue of the intellectual property protection for plants in Jordan, other forms of intellectual property protection remain important. Jordan could remove the bar against patenting plant varieties. Now, the UPOV 1991 Act permits providing patent protection to plant varieties. However, there are strong reasons to exclude patent protection for plants. Patents on plant varieties give legal monopoly rights over plant genetic resources in a way that restricts the flow of information and materials. Patenting plant varieties could to lead to economic exploitation. Inventors from developed countries can utilize plant genetic resources from developing countries for breeding or research purposes without sharing royalties from any newly developed plant variety with the host country that produced the predecessor varieties. Moreover, attempting to distinguish a plant variety entitled to sui generis protection from a plant entitled to patent protection creates unnecessary ambiguities and complexities. It seems cumbersome to have multiple systems of plant variety protection in Jordan, and it would appear much more desirable for Jordan to maintain a single form of intellectual property protection for plant varieties, namely the sui generis protection system. 132
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
There are certain issues in the Law that need further elaboration. The Law permits the association of a trademark, trade name or other similar indication with a registered variety denomination. However, the association between a trademark and a registered variety denomination could invite arguments over what really constitutes the unprotectable variety denomination as opposed to the protectable accompanying mark. In talking about the experimental exemption, the Law does not determine the extent of experimental activities. In addition, in case of compulsory licensing, the Law does not provide examples or explanations of what public interest would be. The Law does not specify what kind of relief the variety rights holder can seek in courts. Furthermore, acceptance of examination results carried out by foreign plant varieties offices that granted the corresponding plant variety rights may lead to uncertainties as to how Jordanian courts would deal with this issue should a dispute arise. Jordan may face difficulties in enforcing its plant varieties protection law effectively. Enacting law is one thing, while the enforcement of the law is another. Violations of the law should be stopped in a timely manner. Because the field of intellectual property is evolving, sufficient examiners must be trained in the area of the protection of plant varieties: this means that the need for continuous training programmes is affected by the institutional capacities of the Office for the Protection of New Plant Varieties. The enactment of the Law on Protecting New Varieties of Plants could promote the development of superior agricultural products and provide opportunities for increased exports. However, based on the experiences of developed and developing countries, the protection of plant varieties is highly likely to have a small impact on the size of Jordanian agricultural sales and exports. Despite the presence of certain issues that need to be resolved, the enactment of the Law on Protecting New Varieties of Plants and accession to the UPOV 1991 Act mark important milestones in Jordan’s growing commitment to define and protect intellectual property rights. About the Authors Bashar H. Malkawi is Assistant Professor of Commercial Law, Accounting and Commercial Law Program, Faculty of Economics and Administrative Sciences, Hashemite University, Zarqa 13115, Jordan; e-mail:
[email protected] Haitham A. Haloush is Assistant Professor of Commercial Law at the Hashemite University, Jordan. He holds a PhD in commercial law from College of Law, Leeds University, UK, and an L.L.M. from College of Law, Aberdeen University, Scotland, UK. Notes Our most sincere thanks are due to the editors of the Journal of World Intellectual Property and the reviewers for their invaluable comments and suggestions. r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
133
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
1 See Copyright Law No. 22 of 1992 as amended by Provisional Law No. 52 of 2001, Official Gazette No. 4508 (1 October 2001); Patent Law No. 32 of 1999 as amended by Provisional Law No. 71 of 2002, Official Gazette No. 4520 (2 December 2001); and Trademarks Law No. 34 of 1999, Official Gazette No. 4389 (1 November 1999). 2 See Law on Protecting New Varieties of Plants No. 24 of 2000, Official Gazette No. 4444 (2 July 2000). 3 Local farmers perfected a new breed of grapevine. This grapevine has distinct genetic traits: early maturation, plentiful crops and resistance to plant pests and diseases. The grapevine is also unique in that it matures early (it bears fruit within 2 years of being planted, while regular vines take 4–6 years) and produces large quantities of fruit (250 kg compared with 50 kg; see Jordan Times, 2005). 4 The warm winter climate in the Jordan Valley is very conducive to growing first-rate, high-quality strawberries. Ibid. 5 See Law on Protecting New Varieties of Plants, supra n. 2, article 3. 6 Ibid., article 5.a. 7 Ibid., article 5.b. 8 Ibid., article 5.c. 9 Ibid., articles 26 and 27. 10 Although no real-life examples exist for granting compulsory licensing for plant varieties, there are examples in the patent area that are similar in scope and purpose to plant varieties. For example, the United States, at the outbreak of the anthrax attacks in 2001, contemplated issuing a compulsory license of the antibiotic ciprofloxacin (Cipro), which is a standard treatment for individuals exposed to anthrax. Public health officials wanted to insure the protection of the American public by stockpiling an adequate supply of Cipro in the event of additional bioterrorist attacks (see Avedissian, 2002). 11 See Law on Protecting New Varieties of Plants, supra n. 2, article 18. 12 Ibid., article 23.a. 13 The US Congress enacted The Drug Competition and Patent Term Restoration Act 1984, commonly known as the Hatch/Waxman Act. Title II of this act includes section 156 of the Patent Act, which allows patent holders to restore some of the time lost in regulatory review to their patent term. In allowing for patent term extension, Congress hoped to provide an increased incentive for drug research and innovation (see Abramowicz, 2007). 14 See Law on Protecting New Varieties of Plants, supra n. 2, article 4. 15 The Office for the Protection of New Plant Varieties at the Ministry of Agriculture has ten examiners and support staff. These examiners are not required to be lawyers with intellectual property knowledge and expertise, having a background in science and technology or taking a bar-like exam. They are more or less generalists. There is no special paying system for examiners. The budget allotted for the Office is part of the Ministry of Agriculture’s budget (telephone interview with Rema Muwahhad, Director of the Office for the Protection of New Plant Varieties, Ministry of Agriculture [3 October 2007]. See also Ministry of Industry and Trade, Jordan, 2007). 16 See Law on Protecting New Varieties of Plants, supra n. 2, article 6.a and b. 17 Ibid., article 6.c. 134
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
18 19 20 21 22 23 24 25 26 27 28 29 30 31
32
33
34 35
36 37
38
Bashar H. Malkawi and Haitham A. Haloush
Ibid., article 6.d. Ibid., article 9. Ibid., article 11. Ibid., article 7. Ibid., article 12. Ibid., article 10. Ibid., article 25. Ibid., article 19. Ibid., article 23. Ibid., article 29.a. Ibid. Ibid., article 29.b. Ibid., article 29.c and d. See International Convention for the Protection of New Varieties of Plants, 2 December 1961, article 3.2 (revised on 10 November 1972, 23 October 1978, and 19 March 1991) (1991 UPOV Act) available at hhttp://www.upov.int/en/publications/conventions/1991/ content.htmi [Accessed January 2008]. A variety is deemed new if at the date of filing of the application for a breeder’s right, propagating or harvesting material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety. See Law on Protecting New Varieties of Plants, supra n. 2, article 6.1. A variety is distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application. The filing of an application for the granting of a breeder’s right or for the entering of another variety in an official register of varieties, in any country, shall be deemed to render that other variety a matter of common knowledge from the date of the application, provided that the application leads to the granting of a breeder’s right or to the entering of the said variety in the official register of varieties. Ibid., chapter 3, article 7. Variety is uniform if subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics. Ibid., article 8. To be stable, a variety’s relevant characteristics must remain unchanged after repeated propagation or in case of a cycle of propagation, at the end of that cycle. Ibid., article 9. Ibid., articles 4 and 11. The UPOV convention defines essentially derived varieties as ‘‘predominantly derived while retaining the expression of essential characteristics’’, ‘‘clearly distinguishable’’, or ‘‘conforming to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes in the variety’’. These definitions rely on an understanding of the phrases ‘‘essential characteristics’’ and ‘‘clearly distinguishable’’. Because these phrases are left to UPOV signatories, many interpretations may evolve. The UPOV 1978 Act, had a ‘‘farmers’ exemption’’, which allowed any farmer who purchased seeds of a protected variety to save seeds from those crops for subsequent
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
135
Bashar H. Malkawi and Haitham A. Haloush
39 40 41 42 43
44
45
Intellectual Property Protection for Plant Varieties in Jordan
replanting without paying additional royalties. The seed industry lobbied heavily to many governments to limit the 1978 UPOV farmers’ exemption. Then, in the UPOV 1991 Act, farmers’ rights were curtailed by making farmers’ rights optional and allowing each UPOV member to decide whether or not to extend such rights. Ibid., article 17. Ibid., article 19. Ibid., articles 21–22. Ibid., article 35.2. Such dual protection was prohibited under article 2(1) of the UPOV 1978 Act. Traditional knowledge refers to the knowledge, innovations and practices of indigenous and local communities. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore and agricultural practices, including the development of plant species and animal breeds. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture and forestry (see De Carvalho, 2003). TRIPS, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments—Results of the Uruguay Round, 1869 U.N.T.S 299, 33 I.L.M. 81 (1994). Ibid., article 27.3, 1869 U.N.T.S at 311–2, 33 I.L.M. at 1208. This sub-paragraph was expressly made subject to subsequent review 4 years after the entry into force of the WTO Agreement.
References Abramowicz, M. (2007) ‘The Danger of Underdeveloped Patent Prospects’, Cornell Law Review, 92, 1065–121. Avedissian, G. K. (2002) ‘Global Implications of a Potential U.S. Policy Shift Toward Compulsory Licensing of Medical Inventions in a New Era of ‘‘Super-Terrorism’’’, American University International Law Review, 18, 237–59. Carlson, J. (1996) ‘Strengthening the Property-Rights for Plant Genetic Resources: The Role of the World Bank’, Transnational Law and Contemporary Problems, 6, 91–122. Carroll, J. (2001) ‘Intellectual Property Rights in the Middle East: A Cultural Perspective’, Fordham Intellectual Property, Media & Entertainment Law Journal, 11, 555–8. Cullet, P. (2004) Plant Variety Protection [online]. Available at hhttp://www.ielrc.org/ content/f0304.htmi [Accessed July 2007]. De Carvalho, E. T. (2003) ‘Protection of Traditional Biodiversity-Related Knowledge: Analysis of Proposals for the Adoption of a Sui Generis System’, Missouri Environmental Law and Policy Review, 11, 38. El-Qudah, M. (1998) Civil Procedures. Dar Al-Thaqafa, Amman. Fowler, C. (2000) ‘The Plant Patent Act of 1930: A Sociological History of its Creation’, Journal of the Patent and Trademark Office Society, 82, 621. Garduno, E. and Pietrucha, F. J. (2003) ‘Intellectual Property Rights in the Arab World’, Georgetown Journal of International Affairs, 4(1), 60–2. 136
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
Intellectual Property Protection for Plant Varieties in Jordan
Bashar H. Malkawi and Haitham A. Haloush
Hakimian, H. and Nugent, J. (eds) (2004) Trade Policy and Economic Integration in the Middle East and North Africa: Economic Boundaries in Flux. Routledge, New York. Halewood, M. (1999) ‘Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection’, McGill Law Journal, 44, 953–71. Hanning, M. (1996) ‘An Examination of the Possibility to Secure Intellectual Property Rights for Plant Genetic Resources Developed by Indigenous People of NAFTA States: Domestic Legislation Under the International Convention for Protection of New Plant Varieties’, Arizona Journal of International and Comparative Law, 13, 175–242. Jain, M. (1999) ‘Global Trade and the New Millennium: Defining the Scope of Intellectual Property Protection of Plant Genetic Resources and Traditional Knowledge in India’, Hastings International and Comparative Law Review, 22, 777–819. Jordan Times (2005) ‘First Plant ‘‘Rights’’ Registered in Jordan’. Jordan Times, 31 March, 11. Kesan, J. P. and Janis, M. D. (2002) ‘The Future of Patent Law: U.S. Plant Variety Protection: Sound and Fury . . . ?’, Houston Law Review, 39, 727. Knudson, M. and Pray, C. (1991) ‘Plant Variety Protection, Private Funding, and Public Sector Research Priorities’, American Journal of Agricultural Economics, 73(3), 882–6. Kohls, M. (2007) ‘Blackbeard or Albert Schweitzer: Reconciling Biopiracy’, Chicago–Kent Journal of Intellectual Property, 6, 108–37. Locke, S. D. (2007) ‘Intellectual Property for the Botanist and the Plant Breeder: An Overview of Protection Afforded by Plant Patents and Plant Variety Protection Certificates’, Chicago–Kent Journal of Intellectual Property, 6, 198. Longacre, E. (2003) ‘Advancing Science While Protecting Developing Countries from Exploitation of Their Resources and Knowledge’, Fordham Intellectual Property Media & Entertainment Law Journal, 13, 963. McCabe, K. W. (1998) ‘The January 1999 Review of Article 27 of the TRIPS Agreement: Diverging Views of Developed and Developing Countries Toward the Patentability of Biotechnology’, Journal of Intellectual Property Law, 6, 41–51. Membership (2007) Members of the International Union for the Protection of New Varieties of Plants [online]. Available at hhttp://www.upov.int/en/about/members/pdf/pub423.pdfi [Accessed June 2007]. Ministry of Industry and Trade, Jordan (2007) Report on Intellectual Property Protection. On file with author. Momany, Y. (2001) The Seed Industry in Jordan [online]. Available at hhttp://www. icarda.org/seed_unit/Pdf/Focus/FOCUS-Jordan.pdfi [Accessed November 2007]. Muwahhad, R. (2007) Director of the Office for the Protection of New Plant Varieties, Ministry of Agriculture, telephone interview, 3 October. Nelson, A. (2005) ‘Is there an International Solution to Intellectual Property Protection for Plants?’, George Washington International Law Review, 37, 997. Nwabueze, R. N. (2003) ‘Ethnopharmacology, Patents and the Politics of Plants’ Genetic Resources’, Cardozo Journal of International and Comparative Law, 11, 585–93. Oguamanam, C. (2006) ‘Regime Tension in the Intellectual Property Rights Arena: Farmers’ Rights and Post-TRIPS Counter Regime Trends’, Dalhousie Law Journal, 29, 413–53. Rangnekar, D. (2000) Intellectual Property Rights and Agriculture: An Analysis of the Economic Impact of Plant Breeders’ Rights, Actionaid [online]. Available at hhttp:// www.actionaid.org.uk/_content/documents/ipr.pdfi [Accessed October 2007]. r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
137
Bashar H. Malkawi and Haitham A. Haloush
Intellectual Property Protection for Plant Varieties in Jordan
Ruby, S. M. (2004) ‘The UPOV System of Protection: How to Bridge the Gap Between 1961 and 1991 in Regard to Breeders’ Rights’, Oklahoma Journal of Law and Technology, 2, 19. Rugaber, C. (2001) ‘Intellectual Property: Cooperation, Enforcement, TRIPS Case Will Help Protect IP Rights, Leader Says’. Patent, Trademark and Copyright Law Daily (Bureau of National Affairs), 1 October. Sell, S. (2003) Private Power, Public Law: The Globalization of Intellectual Property Rights. Cambridge University Press, Cambridge. Singh, H. (2002) Emerging Plant Variety Legislations and Their Implications for Developing Countries: Experiences from India and Africa [online]. Available at hhttp:// www.iprsonline.org/ictsd/docs/ResourcesTRIPSharbir_singh.doci [Accessed October 2007]. Srinivasan, C. S., Shankar, B. and Holloway, G. (2003) An Empirical Analysis of the Effects of Plant Variety Protection Legislation on Innovation and Transferability [online]. Available at hhttp://ecsocman.edu.ru/images/pubs/2003/11/29/0000135447/039-049srinivasanx2cx20shankarx2cx20holloway.pdfi [Accessed October 2007]. UPOV Report on the Impact of Plant Variety Protection (2005) Trademarks Law Number 34 of 1999. Official Gazette Number 4389, 1 November 1999. UPOV Publication Number 353(E) [online]. Available at hhttp://www.upov.int/en/publications/pdf/ 353_upov_report.pdfi [Accessed September 2007]. Van Overwalle, G. (1999) ‘Patent Protection for Plants: A Comparison of American and European Approaches’, Journal of Law and Technology, 39, 143. World Trade Organization (1999) Report of the Working Party on the Accession of Jordan, Geneva, 3 December, WTO Document Number WT/ACC/JOR/33, paragraph 230. Yerkey, G. (1999) ‘U.S. Removes Jordan from ‘‘Watch List’’ of Special 301 Nations Failing to Protect IP’, International Trade Reporter (Bureau of National Affairs), 16, 2047, 6 December. Yerkey, G. and Pruzin, D. (1999) ‘U.S. Wants More Progress on IPR before Allowing Jordan to Join WTO’, International Trade Reporter (Bureau of National Affairs), 16, 866.
138
r 2008 The Authors. Journal Compilation r 2008 Blackwell Publishing Ltd The Journal of World Intellectual Property (2008) Vol. 11, no. 2
