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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
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Intellectual
property is intangible and include “Patents”, “Trade Secrets”,
“Copyrights'' “Trade marks” and “Plant Breeders' Rights”.
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The
rights to protect this property prohibit others from making, copying,
using or selling the proprietary subject matter.
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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:
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The invention must
be new, (novelty) and should have utility.
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It must be
inventive.
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It must be
disclosed (discloses) in a way, which enables a person of normal skill
to reproduce it.
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The scope of
protection to be granted must be in proportion to the invention.
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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 -
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New (previously not
exploited commercially).
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Distinct (clearly
distinguishable from all other varieties)
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Uniform (all plants of
the variety should be uniform.)
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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
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The cost of seeds
will increase.
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There will be delay
in the spread of new varieties to the farmers.
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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
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