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PLANT PATENTING: TECHNICAL AND LEGAL ASPECTS
PLANT PATENTING: TECHNICAL AND LEGAL ASPECTS
Adv.Sanjeev Srivastava, Director MVPL Pvt.Ltd.
Patents are generally granted to ideas that are novel, useful and or non obvious depending on the situations. One situation where a patent may be available is when a person invents or discovers a new and useful machine, composition of matter, manufactured good, or process; or improves upon any of these. A patent for this type of situation is called a utility patent, and it is the most common type of patent sought in all countries. A design patent is available to protect the unique appearance or design of a manufactured object. Please keep in mind that if a person wants to protect both the utility and the ornamentality of an object, he or she will need to file both a utility patent and a design patent.
The final type of patent that a person can apply for and acquire is a plant patent. Plant patents are available for the invention or discovery of a new and distinct plant. In order to receive patent protection for a plant, the applicant must be able to reproduce the plant asexually.
Regardless of the type of patent you’re seeking to obtain, you must file a patent application with the Controller of Patents, Government of India, the government body responsible for reviewing and determining if an invention or discovery is eligible for patent protection.
What Is a Plant Patent?
First of all, plant patents are only available for plants that are new and distinctive. In addition, a person can only obtain a plant patent if he or she has been able to asexually reproduce the plant. A plant is asexually reproduced if it is reproduced by means other than by seeds, such as by cutting or grafting the plant. Asexual reproduction is a requirement of a plant patent because it provides proof that the applicant can duplicate the plant. In order to receive patent protection, the plant can’t be a tuber propagated plant (i.e. an Irish potato) or a plant that is found in an uncultivated state. This patent lasts for 20 years and gives an inventor the right to exclude other people from asexually reproducing the plant, as well as using or selling the plant.
Who Is the Inventor?
Since there are two steps to “inventing” a plant — inventing or discovering a new and distinct plant and asexual reproduction of that plant — there is a possibility that more than one person is the inventor. Generally speaking, an inventor is anyone who has contributed to either aspect of inventing a plant. If, however, an inventor directs that asexual reproduction be performed by a service, the people performing that service are not considered co-inventors.
Patentability of Plant Products
Patentability of various plant products is not without difficulties. There is an ongoing debate particularly on the patentability of transgenic plants. The European Directive 98/44 examines the patentability of plants in Article 4(2) and says that a patent cannot be granted for a plant variety but can be granted for an invention if the technical feasibility of the invention is not confined to a particular variety. Therefore plant varieties relate to the plant breeding rights but protection of plant breeding applies only to varieties which are characterized by their whole genome.
Transgenic Plants
The Transgenic plant is a plant in which genome is modified by introduction of a gene which can be isolated from another plant, a bacterium, or any other organism. This gene can code a new protein, for example, a compound which is toxic for harmful insects and a substance which blocks multiplication of undesirable virus. Generally a genetic modification of a specific plant variety is not patentable but a modification of a wider scope, concerning for example, a species, may be protected by a patent. Thus to admit patentability of a genetically modified plant, it seems to be sufficient if the genetic manipulation is applicable to several plant varieties and not to a particular plant variety. However this is subject to national laws and different countries’ courts have been slightly divergent in their views and interpretations.
Hybrid Plants
The technique of hybridisation makes it possible to obtain new varieties or species presenting the desirable parental characteristics by choosing proper species or varieties and crossing them scientifically. Hybridisation between two plants makes it possible to mix about 50,000 genes in an order which is relatively unforeseeable. Therefore patentability of hybrid plants implies a distinct evaluation and qualification with regard to the concept of plant variety.
Relationship between patent and plant breeders’ rights
The rights of plant breeders with respect to plant patents are enshrined in the international obligations under different IPR treaties for both forms of protection and judicial pronouncements. Another difference between the plant breeders’ rights and patent protection lies in the scope of the protection granted. While plant breeders’ rights and patent protection is always limited to a specific plant variety and gives only a monopoly rights for its selling/marketing, the monopoly rights of patent can be granted not only for a specific DNA sequence but also for a whole set of plants.
The rights conferred to plant breeders are different from patent rights. The rights of breeders do not extend to acts done privately and for non commercial purposes, experimental purposes and the right to commercialise other varieties if they are not derived from protected variety.
Data on Plant patenting, legal aspects
As per the International Patent Classification (IPC) for the period 2007-2012, the number of patents granted was the highest (682) in biocides and pesticides group (A01N) that accounted for 66 per cent of the total patents granted in agricultural sciences. It was followed by patents granted in the area of new processes for obtaining plants and plant tissue culture, animal husbandry, horticulture, cultivation, forestry and catching and trapping devices for animals and obnoxious plants. Studies reveal that out of a total of 980 patents granted in agricultural sciences in India during the period 2007-2012, India ranked first in the number of patents granted with 229 patents (23.3%), followed by the USA with 227 patents (23.1%) and Germany 192 patents (19.5%). The UK, Japan, the European Union and Australia were the other countries together having 208 patent grants in India. It is important to note that most of the patents granted to foreign nationals or agencies were in the field of chemical sciences (biocides, pesticides, etc.), with the highest number to Germany (180), followed by the USA (158), the UK (55) and Japan (43). But, the patents granted to the Indians were comparatively diverse, and only around 50 per cent were in the field of chemical sciences. In fact only USA had some patents in the field of tissue culture (19) and animal husbandry (15). Institutional Ownership of Patents. To know the pattern of research investments, it is important to examine the institutional ownership of patents granted in different fields of agricultural science in India. Private companies hold a higher number of patents in agricultural sciences in India (86.8%) as compared to the public institutions (13%) for the period 2007-2012. The share of private sector in the number of patent grants was the highest in biocides, pesticides, herbicides (598 patents), followed by horticulture (44 patents), animal husbandry (42 patents), catching & trapping apparatus for animals (39 patents) and plant tissue culture (35 patents). In the public sector also, the number of Indian patents granted was the highest in biocides, pesticides (62 patents), followed by plant tissue culture (21 patents). In case of the residential patent grants, the share of public sector is closer to the share of private sector in the total patent grants during the period 2007-2012, while in non-residential patents, private sector holds remarkably larger share (719 patents out of the total 751 non-residential patents.
Implications for Indian Agriculture
In spite of agriculture being a major source of livelihood for millions of people in the developing countries, the rate of technology replacement is rather low, constraining the productivity growth. The situation in India is; however, comparatively better because of strong presence of public R&D and a higher research intensity of 0.4 per cent in agricultural GDP (Pal et al., 2012). Investment in R&D can provide a solution to these problems. The exchange of knowledge and access to protected technology can help in addressing some of the emerging challenges like climate change, food and nutritional security and environmental protection. The protection of intellectual property rights with a strong patenting system can encourage inventions and their commercialization in the form of market products (Lei et al., 2009).
Implications of increase in the rate of patenting in India.
The implications of increased rate of patenting have to be examined in terms of access to technology and expected economic benefits. Through IPRs the access to advanced technologies has been made possible from the developed nations to the developing countries. The patents provide a channel through which technology can flow from one country to another. The trends observed earlier have indicated an increase in the patent grants to foreign companies in India after the reforms of 2005. Therefore, the major technological spill over from the developed countries are likely to be in the areas like pesticides, herbicides, broad range insecticidal compositions, Bt gene, seed technology and genetic engineering. On the other hand, most of the domestic technologies under protection are concentrated in the areas like biocides, seed technology, soil and machinery and tissue culture. The important areas where the patents are being granted to the Indians are methods of making various formulations of bio pesticides, methods of making biofertilizers-biofungicides, development of low-cost and eco-friendly synergistic compositions, methods for developing a biotic stress-resistant seeds, developing transgenics, methods for improving restorer lines for hybrid seed production, and methods for increasing oil contents of some crops. Therefore, most of the economic benefits of access to foreign technologies are likely to accrue through higher reductions in yield losses due to biological stresses. Some of these benefits shall be realized in the rain fed areas like Kerala and Assam where weed intensification is high.
Summary
There is a substantial increase in the number of patent applications filed and patents granted in the world during the period the last three decades, with the growth picking up in the early-1990s. In India, the number of patent grants has increased significantly after the introduction of patent reforms in 2005 and accumulation of the applications during the transit period. The patent grants have increased significantly in all the fields of agricultural sciences, but most of these patents are owned by the foreign companies. The number of Indian patents granted to foreign companies has been found three-times higher than those granted to the domestic inventors. Among the foreign countries, the highest number of Indian patents has been granted to the USA, followed by Germany and the UK, mainly in the fields of pesticides and insecticides. The number of Indian patents owned by the private sector has been increasing rapidly in comparison those owned by the public sector. This indicates an increasing access to proprietary technology and thereby, stronger presence of the private sector in the input markets. This may increase the cost of farm inputs based on these proprietary technologies. Therefore, the public R&D needs to address these challenges by strengthening Indian companies in public-private partnership mode of technology generation and commercialization.
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References:
Lei, Z., Juneja, R. and Wright, B.D. (2009)
Patents versus patenting: Implications of intellectual property protection for biological research.
Nature Biotechnology, 27: 36-40. 146 Agricultural Economics Research Review Vol. 28 (No.1) January-June 2015 Naseem, A., Spielman, D.J. and Omamo, S.W. (2010)
Private-sector investment in R&D: A review of policy options to promote its growth in developing-country agriculture. Agribusiness, 26 (1): 143–173 . Pal, S., Rahija, M. and Beintema, N. (2012)
India: Recent Developments in Agricultural Research, ASTI Country Note. International Food Policy Research Institute, Washington DC and Indian Council of Agricultural Research, New Delhi.
WIPO (World Intellectual Property Organization). http:// www.wipo.org/ Received: December, 2014; Accepted: February 2015
(Sanjeev Srivastava is the Director of Mitraon Vanasthali Private Limited and trade and taxation consultatnt.The views are personal.)