Still Prevailing Dilemma Of Intellectual Property Rights For Micro-Organisms

 

Intellectual Property have widened its area and scope of functionality. Patent is given to inventions on basis of uniqueness, usefulness and applicability. Almost all inventions are non-living, the dilemma begins whether living beings can also be patent-able? As there is presence of micro-organisms from the beginning of the universe, and with change of time they have even evolved themselves to survive the changes in surrounding.

There are certain criteria mentioned that needs to be satisfied to obtain patent relating to micro-organism.

  • Novelty
  • Non Obviousness
  • Usefulness or industrial applicability

Funk Brothers Seed Co. V. Kalo Inoculant Co., 333 u.S. 127 (1948), ability of Leguminous plant to intake nitrogen from air and convert it into organic nitrogenous compounds. The ability of the plant is due to the presence of bacteria in the roots which forms nodules on roots. As there is different genus of Rhizobium and no one species functions with all other species and which works with specific groups of plants.  Patentee on discovering the fact produced a mixed package of Rhizobia which can be used to inoculate plants of different groups. Application for patent was applied for the product. Court held that micro- organisms are present in the nature from a indefinite time. Patent cannot be granted for mere discovery for the phenomena of the nature.

The concept of patent-ability was changed after the landmark case of  Diamond v. Chakrabarty, 447 U.S. 303 (1980), Ananda Mohan Chakrabarty a genetic engineer developed a bacterium from Pseudomonas genus which can break down crude oil. This mechanism was built to break down spilled out oil. The application for patent was challenged on relying on the case of Funk Bros Seeds vs Kalo. The patent was granted on the reason that it’s not mere discovery of a existing bacteria but creation of a bateria but altering it’s genetic for a specific purpose.

Dimminaco A.G. vs Controller of Patents and Designs,

(2002) I.P.L.R. 255 (Cal) Dimminaco A.G. filed application for patent for the invention related to preparation of vaccine which in the final product contains living micro- organism for protecting poultry from a contagious burstis infection. Application was rejected by the Controller of Patents and Designs on the ground that it does not establish invention. Case was taken to court which passed the order that the patent will be granted as the method of manufacturing vaccine is novel and new which involves specific chemical steps for the obtaining the desire product. As the final product was new, so the process of manufacturing would be held as invention and be patentable.

Monsanto Technology vs Nuziveedu Seeds Ltd.

Monsanto Co. claimed patent on genetically modified Bacillus Thuringiensis (BT) cotton manufactured by their company. Bacillus thuringiensis is a bacterium that is prepared naturally in the soil that produce protein that kills certain insects. Through genetic modification scientist can modify BT protein for creating insect protect crops. Monsanto’s BT gene was not useful until it is injected into a cotton hybrid. Delhi High Court held that injection of BT gene into cotton plant for cross breeding can be a natural process. Referring to Section 3(j) of Indian Patents Act stated that a seed or a plant  or a biological process to create a seed or plant cannot be patented. Thereafter, rejecting the patent of Monsanto on genetically modified BT cotton.

With the scientific development and modification of gene has given a different perspective to the legal field. Other than, basic criterion following novelty, non obviousness and usefulness of the invention there are several other perspectives to view before granting patent to an invention. Advancement in technology have made patentability of micro- organism more complicated. The concept that the description of several biotech items is extremely complicated, especially when the matter is in relation to living organisms. This is of major concern as in biotechnology the objective is to create synthesized replicas of organic substances. The issue is further stretched as the main concern relating to patentability of an invention is novelty. The applicability of patent on Micro- organism is still ambiguous and is in a process of development.

Author: Sampark Sampad, a third year student of National Law University (Odisha), in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

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