Over the last few decades, the number of patents on plants and plant parts has greatly increased in various parts of the world. Most research, however, has focused exclusively on developed countries—the United States and European Union states in particular—while little is known about the extent to which plants are being patented in other parts of the world. This article aims to fill this information gap by providing an overview of the status of patenting plants in the developing countries and emerging economies of the Global South. The research is based on the analysis of legal provisions, patentability guidelines, court decisions (where they exist) and a sample of patents granted in the countries selected for this study. The findings indicate that despite the flexibilities of the World Trade Organization Trade‐Related Aspects of Intellectual Property Rights Agreement regarding the nonpatentability of plants, 60% of the 126 countries in the Global South for which data were available to allow for the patenting of plants or parts thereof, and many such patents have been identified. This situation warrants further reflection and, potentially, review of existing patent laws as developing countries search for ways of responding optimally to the needs of feeding a growing population while adapting to the challenges of climate change.

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Within the scope of its initiative on ‘Compulsory Licensing in the EU’,8 the European Commission launched a call for evidence on 1 April 2022 and a public consultation on 7 July 2022 with the aim of gathering views from stakeholders. The objective of this initiative is to explore the possibility of revising the framework for compulsory licensing in the EU to make it more ‘adequately prepared and coordinated to tackle future crises’.9 The authors of this position paper welcome the Commission’s attempt to reinvigorate the public discourse on this important subject. Depending on the issue to be addressed and the extent of the Commission’s willingness to reform, different regulatory approaches are conceivable. Subject to compatibility with the principles of subsidiarity and proportionality, these include: Rather than making concrete recommendations on the regulatory approach, this paper addresses selected aspects by way of a preliminary, non-exhaustive note on: the proposed reform’s scope and the grounds for a compulsory licence; the requirements of prior negotiation and licensing failure; government use; procedural matters; compulsory licences for patent applications and products; the relation with other regulations and sui generis regimes (i.e. trade secret protection, regulatory data protection and supplementary protection certificates); the concept of adequate remuneration; compulsory licences for European patents with unitary effect; and the exhaustion of products placed on the market under a compulsory licence. – soft law measures, such as guidelines and recommendations; – harmonisation of national laws (substantive and/or procedural);10 – judicial cooperation (i.e. mutual recognition of judgments and of decisions in extrajudicial cases);11 – centralisation of granting and/or judicial review competences; – creation of a supranational compulsory licence; – or any combination thereof.

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Continente; with Case note by Juan Correa

This study shows that the main beneficiaries of the Patent Cooperation Treaty (PCT) in three Latin American countries, which adhered to it as a result of the obligations provided for in free trade agreements, have been non-residents rather than local companies and individual inventors. This rebuts the frequently made argument that acceding to the PCT would generate incentives for local innovation and benefit local inventors by boosting their capacity to protect their developments in third countries. In the three countries considered in this study, the number of patents granted increased after accession to the treaty. This points to the risk of an erosion of the countries’ flexibilities in designing and implementing patent policies, as allowed by the TRIPS Agreement, with respect to the standards applied to assess eligibility for patent protection.

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This chapter aims to examine how diverse external factors have influenced the implementation of intellectual property (IP) standards in Latin America. To this end, it first refers to adopting TRIPS-consistent legislation in the region during the transition period granted to developing countries. Second, it examines the influence of the interpretation of domestic IP legislation under the WTO Dispute Settlement Understanding and provides an overview of TRIPS-plus provisions included in some of the free trade agreements signed in the region, among them the most recent ones, the USMCA and the Agreement between the European Union and MERCOSUR (which is not yet in force). Third, it analyzes other external factors which also affect the implementation of national IP regulations, such as the reports regarding the enforcement of IP provisions produced by the United States or the European Union. Fourth, it analyzes situations in which IP rules are deemed directly applicable by national courtsfollowing the constitutional provisions and practicesthereby reducing the room for maneuver to shape domestic legislation. This analysis shows how the recent evolution of IP policy and legislation in Latin America can only be understood based on the external factors that influenced or determined them. 5 See in general Frederick M. Abbott, "The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO" (2002) 5 Journal of International Economic Law 469; Robin Wright, "The 'Three-Step Test' and the Wider Public Interest: Towards a More Inclusive Interpretation" (2009) 12 The Journal of World Intellectual Property 600; Henning Grosse Ruse-Khan, "Assessing the Need for a General Public Interest Exception in the TRIPS Agreement," in Annette Kur (ed.), Intellectual Property Rights in a Fair World Trade System: Proposals for Reform of TRIPS (Edward Elgar 2011), pp. 167-207. 6 Henning Grosse Ruse-Khan et al., "Principles for Intellectual Property Provisions in Bilateral and Regional Agreements" (2013) 44 IIC -International Review of Intellectual Property and Competition Law 878; Carlos M. Correa, "TRIPS and TRIPS-Plus Protection and Impacts in Latin America," in Daniel Gervais (ed.