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Vol. 12 No. 4 - October 2006

Intellectual Property Rights

By Mohd. Usama and Amit Pal

One of the most important issues, due the emergence of modern biotechnology, is the legal characterization and treatment of trade related biotechnological processes and products, popularly described as intellectual property, and the rights associated with this are known as Intellectual Property Rights (IPR), or rights given to people over the creations of their minds.

Types of Intellectual Property Rights

  1. Intellectual property is intangible and include “Patents”, “Trade Secrets”, “Copyrights'' “Trade marks” and “Plant Breeders' Rights”.

  2. The rights to protect this property prohibit others from making, copying, using or selling the proprietary subject matter.

  3. Under biotechnology, one of the most important examples of intellectual property is the processes and products, which result from the development of genetic engineering techniques through the use of restriction enzymes to create recombinant D.N.A.

Intellectual Property Rights (IPR) can be described as follows:

Patents: Granting of special exclusive rights (for trading new articles) has been a practice to encourage innovations, e.g. monopoly rights (only to inventors) were granted in some countries of Europe, as an incentive to develop new articles that would benefit the Society. Under the US Laws, a patent means selling an invention for a period of 17 years. In India, there is “Indian patent act of 1970” that allows to process patents, but no product patents for food, chemicals, drugs and pharmaceuticals. The duration of patent in India is 5 years from the date of grant of patent or 7 years from the date of filing the application, whichever is less. On December 26, 2004 the Indian government promulgated the patents (amendment) Ordinance 2004 as also the patents (Amendment) Rules, 2005 to comply with the Trade Related Intellectual Property obligations.

Before a patent can be issued, following specific conditions must be met:

  • The invention must be new, (novelty) and should have utility.

  • It must be inventive.

  • It must be disclosed (discloses) in a way, which enables a person of normal skill to reproduce it.

  • The scope of protection to be granted must be in proportion to the invention.

  • It must relate to a technology, where patents are permitted (Patentable).

Trade Secrets: Trade secrets often include private proprietary information or physical material that allows a definite advantage to the owner. This can be illustrated by the popular example of coca-cola brand syrup formula. Trade secrets in the area of biotechnology may include material like Hybridization conditions, Cell lines, Corporate merchandising plans, Customer lists etc.

Unlike patents, trade secrets have an unlimited duration. Disclosure of a trade secret and its unauthorized use can be punished by the court of law and the owner may be allowed compensation. However, if trade secret becomes public knowledge by independent discovery or other means it is no longer protectable.

Copy rights: It involves only the expressed material (printed, painted, tape recorded, video recorded or expressed in any other form). In biotechnology, the copyright may cover the D.N.A. sequence data, which may be published. Computer databases and photomicrograph of D.N.A. instruction manual may also become copyright material.

Trademarks: A trade mark is the word or symbol adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.

Plant Breeders' and Farmers' Right: Plant varieties are generally protected in several countries (not in India) through plant breeders' rights (PBR) or plant variety rights. Plant Variety Production (PVP) laws granting Plant breeders' right patents of a lesser degree to whomsoever claims to have discovered or developed a “new plant variety gives exclusive monopoly control over that variety”.

Under the existing convention due to 'International Union for the Protection of New Varieties' (UPOV), the breeders' rights prohibit the farmer from reuse (plant back) of farm-saved seeds of a variety from his own harvest for planting another crop. Furthermore, the protected plant variety may be freely used as a plant genetic resource for the purpose of breeding other varieties.

When patent or plant breeders' rights are not available for true breeding crop varieties, plant breeders, particularly private plant breeders of countries like Germany, may feel tempted to focus their efforts on developing hybrid varieties, because hybrids do not breed true and give higher yields, no one would raise a crop from harvested seeds that will give reduced yield. Thus hybrid varieties may help in protecting intellectual property. A protected variety should be -

  • New (previously not exploited commercially).

  • Distinct (clearly distinguishable from all other varieties)

  • Uniform (all plants of the variety should be uniform.)

  • Stable (variety can be reproduced and multiplied without losing its characteristics and uniformity).

In India, new crop varieties are bred at State Agriculture Universities and at State Departments of Agriculture. Seeds of new crop varieties flew freely to farmers and to private companies and no royalty was payable. This really encouraged farmers, in the past, to grow new varieties leading to green revolution. Imposition of PBR in India will lead to following problems

  1. The cost of seeds will increase.

  2. There will be delay in the spread of new varieties to the farmers.

  3. The benefit of new varieties will be restricted to a small segment of farmers.

Farmers' rights: It is a concept developed and adapted in FAO (Food and Agriculture Organization) as a resolution and endorsed by all member countries.

It recognizes the fact that farmers and rural communities have greatly contributed to the creation , conservation, exchange of knowledge for the utilization of genetic diversity. Therefore, it is the obligation of world community to help these farmers to carry out this task and help them in utilizing the genetic diversity available with them.

India's PVP Legislation: The protection of plant variety and Farmers' Rights Act, 2001- even though it supposedly attempts to balance breeders' rights and farmers interests, essentially establishes IPR on plant varieties. Another domestic legislation regulates people's interaction with plant genetic resources in the biological diversity act of 2002. It was essentially passed with the objective of conservation of biological diversity and the equitable sharing of benefits from the use of biological resources.

World-class talent: There is no provision for patenting of plants in Indian patents act of 1970, but other countries like U.S. do have provision. Ironically, India hold patents on plants in foreign patent offices. Through the CSIR (Council of Scientific and Industrial Research) the Indian government has a plant patent (PP12426) on a novel mint plant 'Kosi' characterized by its high menthol content. CSIR also holds another U.S. patent for inventing a “novel damask rose progeny” (PP13203), ama 1, plant gene patent held by D.B.T.

International Developments in Plant Protection: Intentionally, there is no one forum to effectively deal with the grant of patents on unlawfully acquired biological resources or traditional knowledge. Farmer groups, indigenous communities and community-based organizations have not only to lobby their government to reserve the IPR trend but also campaign against patents at the international level.

The only way to protect biological resources and their traditional knowledge (TK) is to create IPRs on them. At the world intellectual property organization (WIPO), within the intergovernmental committee on genetic resources, discussions are ongoing on traditional knowledge and folklore on designing a suitable IPR system to protect TK (traditional knowledge).

Biodiversity related issues: Biodiversity convention was held in May 1992 at Nairobi to formulate a treaty that was designed to be signed at U.N. Conference on Environment and Development (UNCED) later held in Brazil in June 1992. In this treaty, an agreement was sought by the developed countries to allow, as a matter of right, access of every country on the germplasm or biodiversity available anywhere in the world. Since tropical developing countries are far richer than temperate developed countries, such a treaty would have benefited only the developed countries. In view of this, the developing countries particularly India had rejected such a treaty because it meant to globalize the natural resources and not the benefits derived from biotechnological inventions. The developed countries wanted to privatize biotechnology through patent and other IPR. The developing countries wanted their share in biotechnology. They are gene rich and are willing to share their rich biodiversity, but they want technology transfer to be cheaper. At earth summit, Johannesburg (2002) there was agreement to share the benefits of using biodiversity with tribal people who had traditional wisdom and knowledge.

Biopiracy: Simply means smuggling of diverse forms of flora and fauna. World wide opposition to biological piracy is rapidly building up as more and more groups and people are becoming aware that big corporations are reaping massive profits from using the knowledge and biological resources of third world countries. Farmers and indigenous people are outraged that plants they have developed are being “hijacked” by multinational companies by having their patents by doing slight modifications in genetic resources of developing countries.

By providing documented evidence from ancient Indian texts that medicinal use of turmeric was well known in India for centuries, turmeric patent was stopped from going in the hands of multinational private companies. India has also won its battle against grant of Neem patent for its pesticidal use from W. R. Grace Company after a long battle

Can life forms be patented: The US court in 1980 allowed to patent a life form of a bacterium Pseudomonas developed by an Indian scientist Dr. Chakraborty. The modified life form contained at least two stable energy generating plasmids, each of the said plasmid providing a separate hydrogen degradation pathway.” The subject of the above claim was an organism, made more effective in treating oil spills by manipulating a natural Pseudomonas.

Oncomouse- Genetically engineered mouse, carrier of human cancer gene was protected by U.S. patent in 1988. Microorganisms such as E .coli in which human genes have been incorporated for production of human insulin, human growth hormone, human tissue plasminogen activator (t-PA), etc. have been recognized for patents in U.S.A. Microbial cells, engineered to produce antigens and antibodies also qualified for patents. Transgenic plants like herbicide resistant cotton, insect resistant tobacco, virus resistant potato and boll worm resistant cotton have also been patented.

Government Initiatives: The govern­ment has taken steps after signing TRIPs agreement on IPR related issues in general and product patent in particular. According to reports, Rs 120 crore modernization plans of the patent offices across the country are nearing completion. The patent offices are in Delhi, Kolkata, Chennai, and Mumbai. The patent information service, Nagpur has been developed as an intellectual property training institute (IPTI)

Institute of Environment & Development Studies, Bundelkhand University, Jhansi, U.P., India

Email:[email protected]

This article has been reproduced from the archives of EnviroNews - Newsletter of ISEB India.

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