Under World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), many processes and products of biotechnology research are patentable. Users may have to pay to use a new procedure or product. IPRs are critical for growth of biotechnology industry. By protecting knowledge through IPR world is transforming from a material based one to a knowledge based one.
Knowledge has become a source of a nation’s economic might and power. IPR is an exclusive legal entitlement to a person or a group of persons on their intellectual property, within country of grant for a specified period and basically includes patents, copyright, trademarks, designs, trade secret and confidential information and geographical indications.
1. Patent:
History of patenting in biotechnology is not very old. Before 1980, life forms were not patentable. In 1980s, Dr. A Chakrvarty got a patent for a micro-organism, Pseudomonas, an oil-easting bacterium. ‘Tryptophan-1 overproducing-maize’ developed through tissue culture was patented in 1987.1 Agrcelus, a US company obtained a patent for transgenic soybean plant in Europe. It is well known today that transgenic cotton, maize, corn is patented by producers.
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Biotechnology inventions are filed as utility patents and not as plant patents. As such, genes of living organisms can be patented, which are used for multiple uses such as disease resistance, herbicide resistance, etc. In India the followings are patentable:
a. Microbiological processes, microorganisms obtained through genetic engineering.
b. Artificially produced cell lines.
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c. DNA, RNA and amino acid sequences.
d. Hybridoma technology, but not as protoplast fusion.
A patent is an exclusive right granted by a country to an inventor to make use, manufacture and market the invention provided invention satisfies certain conditions stipulated in law. This implies that no one else can make, use, manufacture or market the invention without consent of patent holder. Right is available only for a limited period of 20 years at present.
Under provision of Patent Cooperation Treaty (PCT), an inventor can simultaneously obtain patent for his/ her invention in all/any of the member countries without filing a separate application in counties of their interest. India is a member country of PCT since 7 December, 1998.
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History of plant patenting goes back to 1930, which was meant only for sexual plants. India has a rich storehouse of land races of principal agricultural crops and has adopted and passed its own regulation as plant Variety Protection and Farmer’s Rights (PV&FR) Act which is sui-generis in nature. IPR methods in agriculture are Trade secrets (Hybridization conditions, cell lines), copyright (DNA sequence, DNA instruction manual) and Trade Marks (vectors useful in recombinant technology).
To establish and exercise its sovereign right on biological genetic resources, Government of India enacted ‘Biodiversity Act, 2002’. According to this Act
(1) Biodiversity in India is governed at three levels: Biodiversity Management Committee- Panchayat, State Biodiversity Board and National Biodiversity Authority (NBA).
(2) It provides free access to all biological resources to all Indian citizens and right to use these resources for purposes of research within India.
(3) Non-resident Indians and corporate bodies, not registered in India have to seek prior approval of NBA.
(4) Non-commercial bio-survey and bio- utilization related to research in India is freely allowed for Indian citizens. It is not allowed for non-resident Indians, corporate bodies without prior approval of NBA.
(5) For all Indian citizens except local people and local community of the area including growers and cultivators of biodiversity and vaidyas and hakims practicing indigenous medicine, prior permission from concerned State Biodiversity Board is essential for commercial utilization, with a collection charge. Similarly, prior approval of NBA is essential for non-resident Indians, corporate bodies, etc.
(6) No person (Indian citizen included), without prior approval of NBA, shall transfer/resale any research or Indian bio-resources or associated Traditional Knowledge to any non-Indian citizen. Sericulture has enormous potential for patenting. Following items are potential for patenting in sericulture.
a. Genes of silkworm and their food plants.
b. Bio-fertilizer formulation to promote organic silk.
c. Biofungicides and biopesticides which are environment friendly.
d. Different rearing and cocooning practices (techniques and appliances)
e. Different farm machines.
f. Different machines, gadgets, post cocoon operations including weaving, dying finishing, etc.
Central Silk Board has signed a Memorandum of Understanding with National Research Development Corporation (NRDC) for patenting innovation in sericulture. Scientists working in different research institutes of the board can avail this facility for patenting their products
2. Copyright:
Copyright is a negative right because it prevents others from exploiting the work without consent or license of copyright owners. Exclusive ownership right protects from unauthorized copying, translation, adaptation or sale of creative works.
No formalities are required for registration to acquire a copyright. As soon as the original work comes into existence, copyright automatically subsists. In case of literary, dramatic, musical, or artistic work, period of copyright is the lifetime of the author plus 60 years.
3. Trademark:
Registrable marks including words, signs or combination, capable of distinguishing goods or services in connection with which they are used. Such marks convey a tangible trust on origin, material’s, and quality, mode of manufacture or performance of service. A trademark and service mark are used in marketing a product or service to identify and distinguish their ownership from that of others.
4. Trade Secrets and Confidential information:
Trade secrets are type of information that must be kept confidential in order to retain its competitive advantage. Trade secrets, if properly protected may last forever. They can be protected by means of a written agreement between firm’s management and their employees to keep key information confidential.
5. Geographical Indication:
Geographical indication is essentially an attributable association between a given quality, reputation or other characteristics of goods like agricultural, natural, manufactured goods, handicrafts and foodstuff. The Controller General of Patents, Designs and Trademarks appointed under the Trade mark Act, 1999 is the Registrar of geographical indications.
Geographical indication is a national property and registration is not granted to any individual. It is granted to associations or persons or producers or to an organization representing the interest of producer of goods.
Subsequently, separate individual registration is granted in names of actual user of geographical indication. Basmati rice, Darjeeling Tea, Scotch whisky, Kolhapuri Chappal and Kancheepuram saree are some examples.
6. Design:
A design is an idea or conception related to features of shape, configuration, pattern, or ornament to an article which form a special branch of industrial property. Registration of design is possible only, when it is reduced to visible form, so as to be identifiable.
Under the Design Act, 1991, goods to which designs are to be applied are classified into different classes. Period of copyright for a design is 15 years, in general, including extension period after every 5 years.
7. India’s IPR System:
There is a vast intellectual resource in our country which needs to be translated into wealth. Indian scientists and technologists have exploited knowledge so far is just the tip of iceberg. India is ranking very low among world nations as far as securing patents. China has set up 5000 patent training institutes and our graduates of engineering and technology streams have little idea about IPR. Key elements of IPR should be introduced in university course.
Indian industry should recognize the relevance of patent information in identifying new business opportunities. Proper use of patent information can help in identifying state of the art technology and global expertise.
Patent documents can also help in planning for technology transfer striking joint ventures. Indian industry should take cognizance of changes around and positively responds to survive in competitive world.
In India, there is a special establishment called patent information service functioning from Nagpur in addition, to offices at Kolkata, Delhi, Mumbai and Chennai, where patent applications are processed and granted.
The government fee for filing a patent application (complete/ Provisional) is Rs. 1500/- for individuals and Rs. 5,000/- for legal entities. A sealing fee of Rs. 1,500/- for individuals and Rs. 5,000/- for legal entities has to be paid at the time of grant of a patent.
There is nothing like a global patent or world patent. An international application can be filed in any of branch offices of the patent office located at New Delhi, Chennai, Mumbai and Kolkata. Branch offices function as receiving office, designated office and elected office for purpose of international application filed under the Treaty.
All information on IPRs is available in different bulletins published by Technology Information Forecasting and Assessment Council (TIFAC). Department of Science and Technology, Technology Bhavan, New Mehrauli Road, New Delhi.
In India, National Research Development Corporation (NRDC), 20-22, Zamroodpur Community Centre, Kailash Colony Extension, New Delhi, also helps scientists, inventors and business managers in patent facilitation processing, etc., by charging fees.
8. Traditional Knowledge and Intellectual Property Rights (IPRs):
Rapid advancement of scientific knowledge in last fifty years has made profound impacts on society. Knowledge has become a commodity to be bought and sold protected by Intellectual Property Rights (IPR). At the same time, traditional knowledge has also continued to flourish and develop, though at a much different pace.
These forms of knowledge remain protected by values, norms, and traditional ways of life that have changed little over last millennium. Worlds of traditional and modern knowledge are increasingly in contact and conflict with result of clash in cultures.
Traditional knowledge has spiritual and utilitarian value to indigenous peoples, but in last few decades, its value for commercial uses has also been recognized. At the same time, intellectual property rights designed to protect commercial innovations have been deemed inappropriate for protecting traditional knowledge.
Towards sound participation and protection of traditional knowledge, careful consideration is required to implications of intellectual property’ laws on indigenous people.
Developing appropriate strategies for indigenous people participation and protection of traditional knowledge requires an understanding of political landscape within established IPR processes, various perspectives of traditional knowledge holders, as well as how innovations are managed locally.
UNU-IAS is working to contribute in generation of this knowledge and understanding through promoting dialogues and for conducting case studies, and providing capacity development activities.