Open Access Research Article
CONCEPTUAL ISSUES ON PATENTING OF LIFE FORMS : - ARNAV SHARMA
Published Paper
Article Details
AUTHOR: - ARNAV SHARMA
Designation:
- Student
Address: -
130/C Sainik Colony Jammu, Jammu and Kashmir, 180011
Email Id: - Arnavsharma.law@gmail.com
Titled: - “Conceptual
Issues on Patenting of life forms”
Contact No: -
+91-9682153483
Semester: - 8th
Abstract
Patenting
life forms raises questions about the moral implications of treating living
organisms as mere commodities that can be owned. Critics usually argue that
life forms, being products of nature, should not be subject to exclusive rights
and commercial exploitation. Granting patents on life forms implies ownership
over living organisms. This raises concerns about the potential for monopolies
and the concentration of control over essential resources such as seeds and
genetic material. Critics argue that such ownership could lead to limited
access, hindering research and the development of new innovations. Patents are
typically granted for inventions that are novel, non-obvious, and useful.
However, life forms are products of natural evolution. Some people contend that
because naturally existing creatures are part of the previous art and existed
before human interference, patenting them is improper. Typically, inventions
created by humans are given patents. The issue of whether living things may be
regarded as human creations arises since they have a certain level of intrinsic
complexity and self-organization. Some contend that moral restrictions on
patent law should forbid the patenting of living things. Patenting of live
forms may have an impact on ecological harmony and biodiversity. Commercial
interests could prioritise using patented organisms, possibly driving
non-patented species out of existence or into extinction. This raises questions
regarding the environment's long-term effects of life form patenting. Patenting
life forms can conflict with the rights and traditional knowledge of indigenous
communities. Many indigenous culture’s view living organisms as sacred and part
of their cultural heritage. Granting patents on life forms without proper
recognition and consent from indigenous communities can raise ethical and
cultural concerns. This article mainly focuses on the conceptual issues in
patenting of life forms whether it can be patented or not if life forms will be
patented than what are the moral implication of patenting of life form.
Introduction:
-
A patent
is a part of Intellectual Property Rights it is exclusive right given to an
individual on the basis of some unique idea or innovation to permit the individual
to monopolize their invention to the exclusion of others in trade for its
entire disclosure. Such an invention should consist of a product or a manner
but have to be able to fulfil all the demands. Patents are granted to the
unique products the validity of patents is usually 20 years after the 20 years
the idea of patent comes in public domain when patent is granted to an individual,
the individual is the sole owner of that invention or product for those 20
years till the time the patent is not sold by the individual. At times patents
are sold to other owners in lieu of monetary benefits. The government made the
statutory authority to protect the individuals who are creating the new things.
Patenting
of life forms
The idea
of patentability of life forms and the associated troubles took the root in 1900s
wherein there was a surprising upward thrust in studies surrounding gene
technology or biotechnology. As the sector of biotechnology grew swiftly, those
worried in associated studies had been capable of utilise findings of their
research to control the clearly present life forms to benefit the society on a
huge scale, leading to the introduction of ideas along with bio-patenting or
patenting of life forms. The life form is not patentable in nature because
there is no inventive step. A captured life forms is also not patentable in
nature in India because the concept of caging is not novel. A modified life
form is patentable in nature but actual modification is concerned.
Historical
Background of Patents
The Indian Patents Act and Design Act
1911 was adopted in 1911. It was the first time when patent legislation was made. The current
patent act 1970 came into existence 1972. The current patent act is the
combination of new and old things of patents. After 1972 it was again got
amended in 2005 after 2005 it expanded the scope of products of patents it
includes food, pharmaceuticals, chemicals, and microorganisms. There was one
clause related to exclusive marketing rights (EMRs) which was later abolished
lead to modification as a result the new provision of allowing for the issue of
mandatory licence has been added to the act. In India the patent can be applied
for a new product or technique or innovation and is capable for industrial use
but it should not fall in category of non-patentable innovations defined under Sections
3 &4 of Indian Patents Act 1970. The term "invention" is
used to describe the process of creating something new is defined in the
Patents Act, Section 2(1)(j) as "a new product or process requiring inventive
step. [1]which
is capable for industrial use and should be unique, innovative on basis of its
originality and utility thus it is particularly added in the definition of
innovations. Validity of patents are 20 years in the case of pharmaceuticals after
patent period is completed the medicines are turned to be said to be generic
medicines and the patent technique and innovation comes to public domain after
20 years after that time products can be made after expiry of patent time span.
There are two main international treaties of patents.
1)The Paris Convention on the Protection of Industrial
Property, 1883- [2]
i.
The
first international instrument to cover under its purview patents on industrial
innovations;
ii.
There
were 11 states who participated in this Convention.
iii.
Concepts
of “National Treatment” and “Non-discrimination of Patents”;
iv.
“Right
of Priority” in view of time period;
v.
“Independence
of Patents” by countries.
i.
It
was ratified in Washington, United States;
ii.
Treaty
for international cooperation in field of Patents;
iii.
Complementary
treaty to the Paris Convention of 1883 and only open to members of Paris
Convention of 1883;
iv.
An
international system unifying the process- single receiving office, preliminary
examination, international application
Issues of Patenting Life Forms
1. The Legal Issues –
As per the Patent Act of 1970, a
particular product or process can be patented only when it involves some amount
of innovation and complete disclosure. However, when one takes into consideration innovations
occurring in the field of biotechnology, it becomes apparent that it may be
seen as naturally occurring subject matter, thereby falling under the exclusion
clauses Mentioned in of Patent Act 1970 in Section 3. Any substance
which is available in nature and is excluded from general public is considered
as to be against the general public it is excluded from the ambit of patents.
There was a case Funk Bros. v.
Inoculant Co[4].,
where the issue was that the culturing of Rhizobia to immunise leguminous
plants. It was held by honourable court that inherent characteristics of
bacteria were nothing but a “work of nature”, and is not patentable in nature.
There was another case Diamond vs
Chakrabarty [5]in that
case supreme court of USA adopted the liberal approach and granted the patent
to the genetically improved bacterial species in this case honourable Supreme
court of United States of America focused on the inventive step that was taken
to harness the peculiar capability of the bacteria the court stressed on term
manufacture was wide enough to include everything man made.
2. The Moral and Ethical Issues-
On many
occasions, the introduction of GMOs (Genetically Modified Organism) the scope
of patentable inventions has led to ethical and moral questions such as the
acts constitute playing the part of God and degradation of the “dignity of
life” for furthering private interests.[6]
At this stage, it is important to take into consideration the case of
Relaxin[7], where the court held that the patenting of a single gene could not be
compared to the act of patenting human life itself. The reasoning was that the
cloning technology was not in an advanced stage where an entire human itself
could be cloned out with single gene. It is important to know what is cloning.
Cloning is the technique used by scientist to make the exact copies of living
things this includes, genes cell tissues, the single cell bacteria usually make
the exact copy. There are several inventions which has so much importance in
the society but their patentability is quite evident. In this case the
isolation of relaxion for genetic coding was considered to not be a mere
discovery.
In another case before the European Courts, the patentability of a genetically changed plant was opposed because of the
morality issue. on this stage the board elaborated on what was meant by
“morality” and “public order”[8]. However, the same varies across nations as the yardstick for what is
moral and what is capable of disrupting public order mostly depends on the
collective conscience of various sections of the society.
In most cases, patenting of life forms to many is considered immoral as
the manipulation of genes and organism puts forth a view of life being a mere
“article of trade”, used to make profits for private entities or persons.
3) Ownership Issues-
There is another important issue that
is always been in discussion in several instances is the ownership rights over
the modified life forms. If the example of T-Lymphocyte is considered, it is
observed that a patent can be granted out of an invention from the spleen of a
patient suffering from cancer, without his consent or knowledge[9].
The action led to litigation resulting in the question of whether it is
important to tell the owner or not whether it is the sole responsibility of the
researchers to gather the valid consent to possess ownership rights over
genetically modified matter.
Due to some issues, stated above it
is important to understand that the what is the overall aim of patenting life
forms is what is the benefit of that could arise to humanity at very large. The
commodity aspect of things is not to be seen in isolation and must has a clear
objective of promoting the interest of the public. It is important to have
fruitful research that can be encouraged if there is a benefit of the same[10].
The awarding of a patent provides incentives of work to the owner who work
towards the development of a better society as a whole, with his work
especially when the concern products or processes aimed at making life better
or aimed to revolutionize healthcare and temporary monopolization is a small
price to pay for the same.
Whether life form should be patented
or not
it is
observed that in India A life form is not patentable in nature because it
doesn’t have any innovation in it. A life form could be a unit or being that is
alive in nature it can be anything from plant animals or a virus some years
back India was against the patenting of live forms after some time amendments
took place the same apparent based on India demand on review of article 27.3
presented in 1999 which suggested that patents on life forms should be prohibited.
Trips governed the member countries to allow patents on all the technologies
and microorganism. As per law according to section 3(j)
of patents act 1970 a plant animal seeds and biological process apart from
microorganisms are not patentable This section empowers the patentability of
microorganism this was recognised after the amendment of 2002[11].
Otherwise, the patenting was fully banned in India including the patentability
of microorganism. Inshort microorganism or life form should not get patented if
it get patented some important bacteria or microorganism which is used to make
the medicines will get patented and it monopolise the market which lead to
increase in prices.
Conclusion
After Analysis of the above topic, it
is observed that patenting of life forms is possible or not. It is observed
that patenting of life forms is possible in USA as compare to India seeds, plants
except the micro-organism are not patentable. Though microorganism is living
thing algae, protozoa, bacteria, archaea and microscopic animals. These are
sort of microscopic organism which usually take all the nutrients from the food
and make food uneatable. Native micro-organism which is in their original form
are not patentable whereas algae, fungi, yeasts, bacteria are genetically
modified the product which is made from these things can be patented. Here I
conclude that only microorganisms are patented in India and not all life forms could
be patented which includes plants, seeds. This reform came in force after 2002
and before 2002 patenting of life forms were banned in India.
References: -
1) Section
2(1) (j); Patents Act: “inventive step means a feature of an
invention that involves technical advance as compared to the existing knowledge
or having economic significance or both and that makes the invention not
obvious to a person skilled in the art.
2) The
Paris Convention on the protection of industrial Property 1883.
3) Patent Co-operation Treaty 1970-
11) 3(j) of patents act 1970 a plant animal seeds and biological process
apart from microorganisms are not patentable This section empowers the
patentability of microorganism this was recognised after the amendment of 2002
[1] Section
2(1) (j); Patents Act: “inventive step means a
feature of an invention that involves technical advance as compared to the
existing knowledge or having economic significance or both and that makes the
invention not obvious to a person skilled in the art.
[11] 3(j)
of patents act 1970 a plant animal seeds and biological process apart from
microorganisms are not patentable This section empowers the patentability of
microorganism this was recognised after the amendment of 2002.
Article Information
CONCEPTUAL ISSUES ON PATENTING OF LIFE FORMS : - ARNAV SHARMA
Authors: ARNAV SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/08
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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