Monday, January 3, 2011

Guest Post: Patenting "Life Forms" under Indian Patents Act, 1970- Patent Unconstitutionality?- I

We had promised to “generalize” IP by connecting it to traditional areas of the law such as Constitutional law. Keeping with that promise, we bring forth a guest post on (un)Constitutionality of Section 3(j) of the Patents Act, by Aditya Arun Kutty, a bright final year law student of Hidayatullah National Law University, Raipur.

Aditya is a self-confessed IP enthusiast, who has taken part in several IP moots and has also written on ISP liability and trademarks. In this post and the next, Aditya argues that Section 3(j) of the Patents Act may come under fire for being unconstitutional absent specific guidelines to reject applications which purportedly claim unpatentable subject-matter. Without further ado, here’s Aditya’s post:

The Restrictive Denotation of ‘Life form’ inventions under the Patents Act, 1970: Prospective Room for challenging the constitutionality of s. 3(j)?- Aditya Arun Kutty

It’s interesting to learn how biotechnology has empowered mankind to craft organisms. The introduction of new organisms into our environment has irrevocably changed the biological landscape. The patenting of living creatures has thus far proved to be a part of this conundrum; the debate has ranged from wholly disregarding such creatures as being patentable, to demarcating the line after grant, whereby it would be possible to limit such protective rights.

Patents, as affirmed, should be granted only to human inventions, not discoveries. As known, only inventions that meet the statutory requirements of being new, useful, and non-obvious, can be patented. Inventions or discoveries, such as naturally occurring organisms, laws of nature, natural or physical phenomena and abstract ideas, cannot be patented. 

The general prejudice against life-form patenting is that- existing living organisms - plants and animals as well as their genes - are no-one's invention and should therefore never be patented and put under private control.

Effectively the prohibition on patentability of plants and animals rests on three philosophical foundations[i]:
Firstly, patents on plants and animals would allow humans to hold exclusive rights on other living organisms, an arrangement that seemed (and continues to seem) immoral to many.[ii]

Secondly, it is argued that granting such patents would unjustly enrich those who were simply the first to apply for a patent on a naturally occurring organism.[iii]

Thirdly, some have invoke a Lockean philosophy of labor and just deserts in contending that live-organism patents were inappropriate because they did not require the patent holders to mix their labor with the naturally occurring item.[iv]

These reasons reflect what is known as the ‘product of nature’ theory, this was of-course explained in a more detailed manner in the Kalo case (Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948) where the court’s application of this theory led it to determine that Kalo had failed to take an inventive step when it mixed bacteria to produce an improved fertilizer.

Gradually now, a showing of human intervention is required to file for a patent in the first part of the test. This basic requirement prevents the direct appropriation of naturally occurring organisms. The applicant's use will have some bearing on the quantifiable calculations; the evolutionary biology test does not assume that a biotechnologically altered organism is inherently man-made. It goes a step further to calculate and examine the probability of the organism's natural development as part of the first prong of the proposed test.

Let’s now take a look at section 3(j) of the Indian Patents Act:

Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals. 

Although, according to article 27 of the TRIPS, a member state may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. Thus, with an ordre public exclusion having been carved out, the Indian legislation may very well be TRIPS compliant.

But the fact remains that if a law may be enacted by the parliament to give effect to an international treaty (Article 253), the same maybe struck down by the Supreme Court or High Courts of India as unconstitutional, if it violates any of the fundamental rights of the citizens.

Which brings us to the point that there a few plausible grounds whereby section 3(j) may not be justified or in litigation terms- may become prey to invoke the question on constitutionality.

Firstly, the usage of words ‘plants and animals in whole’, incorporates a blanket ban on the patentability of all living organisms, without even considering engineered animals.

Secondly, the silence of the Act on the patentability of the living forms coupled with the usage of wide terms such as ‘plant and animal’ leads to ambiguity as to the patentability of an organism which is a result of human intervention, leading to arbitrary powers in the hands of the Indian Patent Office to grant or deny a patent.

For instance, the Oxford dictionary meaning of the terms would suggest that the ordinary meaning of “plant” is a “living organism other than an animal, typically fixed to a substrate, able to subsist wholly on inorganic substances, and moving chiefly by growth” and “a living organism (such as a tree, grass or fern) that absorbs water and inorganic substances through its roots and makes nutrients in its leaves by photosynthesis.”

Finally, the term “animal” refers to a “living organism having sensation and voluntary motion, without rigid cell walls, and dependent on organic substances for food.” In addition, “a living organism which feeds on organic matter, has specialized sense organs and nervous system, and is able to move about and to respond rapidly to stimuli.”

It is clear from these definitions, that even if there is an organism which is a result of human intervention it can fall within the definition of ‘animals’, therefore disentitling it from patent protection. Thus, as of today, a product ‘X’ which is humanly engineered, would fall within the teeth of Section 3(j), no thanks to absence of specific guidelines and delineated definitions of terms such as ‘plants’ and ‘animals’.

[i] M.T. Iwasaka Ryan, Chakrabarty to Chimeras: The growing need for evolutionary biology in Patent law 109 Yale L.J. 1505.
[ii] Tom Regan, The Case for Animal Rights, 1983; Peter Singer, Animal Liberation (2nd edn, 1990)
[iii] O'Reilly, 56 U.S. (15 How.) 132-33
[iv] C.B. Macpherson (ed), Second Treatise of Government (Hackett Publ'g. Co. 1980) 8-30, ‘For John Locke's original discussion’

No comments:

Post a Comment