A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
Id. § 103(a). For a helpful case, see Graham v. John Deere Co., which holds that obviousness or non-obviousness of subject matter is to be determined by looking to the scope and content of prior art, the differences between prior art and claims at issue, and the level of ordinary skill in the pertinent art. See 383 U.S. 1, 17 (1966); see also Roht-Arriaza, supra note 6, at 937. An inventor who simply examines prior knowledge and follows the next logical step to solve a problem, has not met the nonobviousness requirement of the Patent Act. See Graham, 383 U.S. at 17; see also Roht-Arriaza, supra note 6, at 937.
Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligation under Article 27, that Member shall: (a) . . . provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed. . . .
TRIPS Agreement, supra note 60, art. 70(8)(a).
Members may also exclude from patentability . . . plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.
Id. The TRIPS Agreement does not define what is meant by an effective sui generis system. See id. Yet, some commentators believe that this reference is intended to refer to a system modeled after the International Convention for the Protection of New Varieties of Plants (UPOV). See International Convention for the Protection of New Varieties of Plants, Dec. 2, 1961, 33 U.S.T. 2703 [hereinafter UPOV]; Klaus Bosselmann, Plants and Politics: The International Legal Regime Concerning Biotechnology and Biodiversity, 7 Colo. J. Intl Envtl. L. & Poly 111, 124 (1996) (stating that European nations adopted sui generis plant protection under UPOV rather than patent-based protection); J. Benjamin Bai, Comment, Protecting Plant Varieties under TRIPS and NAFTA: Should Utility Patents be Available for Plants?, 32 Texas Intl L.J. 139, 140 (1997) (suggesting that the UPOV is a suitable system of protection on the international level). The UPOV sets minimum standards and assigns rights for both the finding and breeding of new plant species. Roht-Arriaza, supra note 6, at 941. Unlike patents, plant breeder rights allow the free use of a protected variety in order to breed and commercialize other new varieties. Id. Originally, the UPOV let farmers save seeds from season to season without paying royalties to the seed companies. Id. However, since its inception, the UPOV has been altered to give more protection to plant breeders and less to farmers. Id. In addition, like under a patent system, traditional farmers are not allowed protection for their innovative breeding work under UPOV. Id. To obtain UPOV protection, a plant must be: differentiated from existing plants through precise recognition and description; uniform or sufficiently homogeneous; and stable in its essential characteristics. Id. (quoting UPOV, art. 4). While most developed states are parties to UPOV, practically no developing states have signed. Id.