The wealth of genetic material and the intimate cultural knowledge of the properties of plant species amongst local populations has meant that an estimated 83% of efforts to locate and exploit new species — a process known as bio-prospecting — occurs in the South. Of the active ingredients in modern prescription drugs, approximately three-quarters came to the attention of researchers because of their use in traditional medicines in the Majority World. The current value of the world market for medicinal plants derived from materials utilised by indigenous communities is estimated at $43 billion annually. Similarly, the value of crop varieties developed by indigenous communities to the modern seed industry is estimated at $15 billion a year. There are also enormous profits generated from the use of countless other plants found in indigenous communities which now go into the manufacturing of fabrics, perfumes, sweeteners and cosmetics.

Before the TRIPS agreement, intellectual property protection laws were covered under a patchwork of legislation varying from country to country. During the recession in the late 1980s, and facing increasing technological competition from SE Asian countries, the US government placed IP issues at the forefront of their agenda in approaching the GATT Uruguay Round negotiations. The US even threatened to boycott these negotiations if its demands for some kind of international legislation governing intellectual property rights were not met. The US favoured inclusion of IP issues into the World Trade Organisation because this was the only mechanism that would ensure member states could be effectively sanctioned if they failed to comply with international IPR laws.

Developing countries were initially very reluctant to develop any internationally-binding IPR agreement. Their primary concern was, and still is, that these legal devices would enable industries from the North to appropriate and privatise the wealth of biodiversity that constitutes the basis for food security and health care for millions in their countries. They were also concerned that such measures would disrupt the cultural and economic fabric of traditional societies.

Under TRIPs, a uniform set of patent and copyright criterion relating to intellectual property protection has been established throughout the world. This system currently obliges WTO members to grant titles to "inventors" of micro-biological processes, micro-organisms and plant varieties. Under article 27.3(b) of the TRIPs, countries must "…provide for the protection of plant varieties either by patents or by an effective sui generis system or any combination thereof". This sui generis system would be based upon an internationally recognised system of PBRs — plant breeders rights; or PVPs — plant variety protection measures. Poorer countries are expected to begin implementing this system by next year, with the least developed countries expected to have developed such systems by 2005. There is, however, a clause under Article 27.2 which makes allowances for patent exclusions where necessary to protect "…human, animal or plant life or health or to avoid serious prejudice to the environment…".

The United States is trying to get Southern governments to accept the sui generis guidelines lain down by the Geneva-based Union for the Protection of New Varieties of Plants (UPOV) as the best way to fulfil their obligations under TRIPs. The UPOV system operates under two conventions –one set up in 1978 and the other established in 1991. Under the original UPOV statement, the South’s biodiversity was understood to be part of the heritage of mankind, and therefore freely available to all for scientific or commercial use. This allowed private interests such as multi-national pharmaceutical and agri-business enterprises to plunder the South’s genetic material without compensation. These corporations could then develop an "improved" variety and claim property rights on the basis of having made an "invention". Having done this, the "free heritage of mankind" plundered from the fields and forests of local communities could be sold back to them as a commodity.

Both UPOV conventions effectively give protection only to the commercial breeding sector, and ignore the rights of the millions of farmers who have been engaged in seed breeding and development for generations. The innovative contribution of local communities is ignored altogether. Unlike its predecessor, UPOV 1991 also gives exclusive rights of sale and reproduction to the patent holder, denying farmers the rights to replant and exchange seeds. In fact, many critics point out that the entire regulatory process under UPOV reflects a trend of ever-greater protection of the interests of commercial plant-breeders and fewer and fewer rights for traditional farmers. Critics argue that if developing countries enter into the UPOV 1978 convention they will, according to the Crucible Group, be entering "…a political and policy treadmill leading inevitably to UPOV 1991 and then onward until UPOV is indistinguishable from the most monopolistic elements of the utility patent system".

There have been attempts to redress the imbalance between plant breeders rights versus farmers’ rights, namely under international institutions such as the FAO and the Convention on Biological Diversity. These bodies have sought to ensure that local communities role as developers and conservers of plant genetic resources is recognised, and have stated that farmers should share in the benefits of new varieties developed from plants in their fields. Still, though, the role of indigenous peoples as nurturers of plant biodiversity is generally not appreciated. In the words of the Crucible Group Crucible Group: "That indigenous peoples inhabit the most diverse fields and forests of the world is sometimes viewed as both coincidental and unfortunate. That a correlation could exist between the uses made by people of biological diversity and the availability of that diversity is seldom considered." This all too common perspective means that the sentiments expressed within the Biodiversity Convention are by and large overridden by other international agreements, such as UPOV, that favour commercial interests, under the misguided and frankly arrogant notion that in the modern world, it is private companies that are the true innovators of plant diversity.

The implications of the TRIPs agreement, and article 27.3(b) in particular, are very worrying in terms of food security. At the moment, between 15%-20% of the world’s food is grown by small farmers, feeding at least 1.4 billion people. These farmers save their seeds after each harvest for replanting the following season. If developing countries adopt a plant breeders rights system such as UPOV 1991 under the TRIPs agreement, they will effectively be criminalising the practice of seed saving. Legal contracts drawn up by the seed company will force farmers to purchase their seed year after year, a requirement that would raise farmers’ costs and drive millions off the land. In a statement to EU Ministers, a coalition of Southern NGOs warned that such restrictions would "… create dependency where there was previously independence; force farmers to pay for what was