Innovations and inventions, are similar, but indispensable ingredients of development and growth. Technology and development are directly inter-linked and inter-related. It is the imperative and seminal duty of the state to promote and protect innovations and inventions. This leads us to the question as to how the state will protect the technological inventions and innovations ?
Intellectual Property Rights is the panacea to this question of protection. Any invention or innovation will be protected by the state and the inventor or the innovator will be given certain exclusive rights to enjoy as a reward for his invention or innovation. The protection system includes the giving of patents (inventions), copyrights (literary works and expressions), trademarks (signs or symbols), designs and etc.
As we are mainly concerned with new inventions, innovations in technologies, awarding of patents will be the most relevant and germane protection system that is available to us. Indian parliament has enacted the patents Act 1970 to regulate the law relating patents. This Act governs the law relating to patents. It provides for inventions that are not to be patented in Section 3.
We are in the progressive era and science plays a vital role in bringing progress and development. New technologies arise everyday that is useful to the general public and it requires protection from the state for the invention to the inventor. Biotechnology, Nanotechnology are some of the new areas that is fast developing.
Biotechnology is the field of science that is based on biology, especially when used in agriculture food, science and medicine. Biotechnology can also be defined as[1]
” Any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific purpose. “
TRIPs, which is the chief document in relation with intellectual property rights, as passed by the World Trade Organization must be fully complied with, by the member countries while passing laws relating to intellectual property rights.
Article 27[2] clearly provides for the following
” Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of
industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. “
Article 27 unequivocally states that patents can be provided for any invention whether product or process on any field of technology if three prerequisites are satisfied [3]
1. Newness
2. Involving an inventive step
3. Capable of industrial application (Usefulness)
There is absolutely, no doubt, that biotechnology is a technology. This makes it entitled to patent protection as per Article 27. Any invention that satisfies the three ingredients as laid down in Article 27 will be entitle patent protection.
As already stated Biotechnology divulges into a variety of fields ranging from agriculture to medicines.
AGRICULTURAL BIOTECHNOLOGY - PATENTABILITY :
The uses of biotechnology has been abundant in the field of agriculture. Genetically modified crops are a product of biotechnology. It must be patented as it has the following advantages :
1. Reduction in Deforestation :
Genetically modified crops reduces deforestation as it yields on less and minimal land.
2. Less Dependence on Insecticides :
Genetically modified crops are less dependent on insecticides.
3. Less Dependence on Irrigation :
there is a decreased dependence on irigation as drought resistant crops are created.
4. Will End War on Hunger :
Genetically modified crops are a harmless solution to poverty and hunger and because of its capability of mass production it would end the war against hunger.
5. Safe, Healthy and Tasty :
The consumption of these modified crops is safe, healthy and tasty. there are no adverse effects attached to it.
The process with which these genetically modified crops are created must be given patent protection. Though the idea of patent protection is in direct contravention with the Section 3 (h) which reads as follows :
“ a method of agriculture or horticulture ”
are not inventions.
Patent protection is necessary because it is the only encouragement available to the inventors to keep continuing their research as biotechnology is a field that requires persistent and perennial research to fully explore and exploit its capability. Besides, the product and process of this technology can easily be understood and copied and it compulsorily requires patent protection.
Article 27 .3 (b) is of great relevance and it reads as follows :
“(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.”
This clearly states that some form of protection must be given to plant varieties, micro organisms and biological and non-biological processes for the production of plants and animals or either Patent protection or a effective sui generis system of protection or combination.
Thus, Article 27 affords some form of protection to plant varieties and patent protection can be afforded to them because of its innate distinctiveness and advantages.
MEDICAL BIOTECHNOLOGY - PATENTABLITY :
We are in the age of science and technology. Medicines have become part of our lives. They presence is indispensable and their usage is inevitable in todays world. Various serious diseases has and have plagued the world and also India. These diseases require immediate treatment to save the millions of lives who are suffering from these diseases. Science is the only reliable and useful aid to these diseases. Biotechnology has helped in inventing various life saving drugs and thereby coming to the aid of the society that is affected by these diseases.
Most traditional pharmaceutical drugs are relatively simple molecules that have been found primarily through trial and error to treat the symptoms of a disease or illness. Biopharmaceuticals are large biological molecules known as Proteins and these usually (but not always, as is the case with using insulin to treat type 1 diabetes mellitus )target the underlying mechanisms and pathways of a malady; it is a relatively young industry. They can deal with targets in humans that may not be accessible with traditional medicines. A patient typically is dosed with a small molecule via a tablet while a large molecule is typically injected.
Biotechnology is also commonly associated with landmark breakthroughs in new medical therapies to treat hepatitis A , hepatitis B, cancers , arthritis, hemophilia, sclerosis, and cardiovascular disorders. The biotechnology industry has also been instrumental in developing molecular diagnostic devices than can be used to define the target patient population for a given biopharmaceutical.
For example, was the first drug approved for use with a matching diagnostic test and is used to treat breast cancer in women whose cancer cells express the protein HER2.
Patent protection will give the encouragement and inspiration for inventors to research extensively on various diseases and help to save millions of lives.
The madras high court in its famous judgment failed to grant patent for the swiss company Novartis on the ground that it lacked the “inventiveness” required to patent. this may be huge victory to human rights and leukemia patients but also huge disappointments and discouragement to the inventors
who spent valuable time and money. The claim of the company was that it had made a substantial change to the already patented medicine so that the medicine would be easily absorbed by the body of the patients who consume it. This was rejected and the patent was not granted. The patent must have been granted with certain conditions as to reduction in the price of the medicines at least to encourage research activities in this novel and noble field.
Thus patents must be granted to all fields of technology especially biotechnology where novel inventions are made that is beneficial to the people. Genetically modified crops is one good and effective example that will change the lives of millions of people by fighting hunger and eliminating it. Similarly drugs must be patented in order to be effectively used and to promote future and further research.
[1] United Nations Convention on Biological Diversity’s definition of Biotechnology
[2] TRIPs section 5 ‘Patents’
[3] Three Features also Provided in Indian Patents Act, 1970
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