It has long been established that one cannot patent the way one grows a plant, or even the plant itself. In Malaysia, section 13(1)(b) of the Patents Act 19831 expressly provides that plant or animal varieties or essentially biological processes for the production of plants or animals, other than man-made living micro-organisms, micro-biological processes and the products of such micro-organism processes, cannot be patented.

However, the law has developed protections for the plant breeder. Under the TRIPS Agreement2, Article 27.3(b) stipulates that member countries shall provide for the protection of plant varieties by a patent or by an effective sui generis system or by any combination thereof. Being a signatory to the TRIPS Agreement, Malaysia has provided for plant varieties protection in the form of the New Plant Varieties Act 20043 (hereinafter referred to as “the Malaysian Act”) which came into operation on 20th October 2008. As stated in its preamble, the Act aims to provide for the protection of the rights of breeders of new plant varieties, and the recognition and protection of contribution made by farmers, local communities and indigenous people towards the creation of new plant varieties; to encourage investment in and development of the breeding of new plant varieties in both public and private sectors; and to provide for related matters.