Recent Developments In the Patent System Descriptive Questions
Question 1. Company ABC is specialized in the area of creating software as per the needs of the clients. It developed software which enhances the performance of the computer in terms of speed. Company ABC wants to provide IPR protection to the software. Please advise on this issue to the company.
Answer: Computer Software is a matter of Intellectual Property Rights protection and is recognized at the International Level by the Agreement on Trade-Related Aspects of Intellectual Property Rights. TRIPS provides patents as well as copyright protection to computer software.
However, there are conceptual differences between patents and copyright. Hence, the protection of the computer software has to qualify the eligibility criteria of the patents or copyrights to claim the protection of IPR.
For the protection of software for patent rights, the eligibility criteria of novelty, non-obviousness, etc have to be about the software.
Although, the Patents Act, of 1970 excludes certain innovations from the purview of the Patent Act, of 1970. Sections 3 and 4 of the Patent Act specify a list of subject matter that is not patentable, in particular, “a mathematical or business method or a program per se or algorithm’ is of specific importance to a software innovation (Section 3(k)).
The Indian Patent law does not contain any specific provision regarding the protection of computer software. Computer software on the other hand is protected as applicable to literary and aesthetic works.
Computer software that does not have a technical effect is protected under copyright law. A computer program therefore deals with literary work and the law and practice concerning literary works will apply to computer programs.
For copyright protection, computer software needs to be original, and sufficient effort and skill must be put into making it the original work of the author.
A program that generates a multiplication of tables or algorithms may not suffice the degree of effort required for protection. Apart from that, the work should be first published in India or if published outside India, the author on the date of publication should be a citizen of India.
Recent Developments In the Patent System Practical Questions
Question 1. Dr. Albert Costa is a Professor and Scientist with TATA Institute of Medical Science, working in the area of molecular biology.
During the process of his research with regards to the environmental impact in his lab, he accidentally invents a new microorganism that eats up the plastic content and converts it to bioproduct.
Hoping that his invention will eradicate plastic-related environmental pollution worldwide, he wants to take credit for his invention. What kind of Intellectual Property Rights protection he is entitled to? Give justification if any.
Answer:
As per the Patents Act, of 1970, Patent of life forms are not allowed. Section 3 of the Patents Act deals with inventions that are not patentable.
Section 3 of the Patents Act, of 1970 deals with the plants and animals in whole or any parts thereof other than microorganisms but including seeds varieties, and species, and essentially biological processes for the production or propagation of plants and animals are not inventions.
As per this provision the plants in whole or in part, animals in whole or in part, seeds, verities, and specifies of plant and animals, essentially biological processes for production or propagation of plant and animal are not patentable.
However, Section 3 makes an exception about the microorganisms, other than the ones discovered in nature, that may be patentable. For instance, genetically modified microorganisms may be patentable subject to other requirements of patentability.
Question 2. Regenerate Inc. is a Multinational Company operating around the world over and specializes in the genetic mutation of plants and seeds. In India, it has opened its subsidiaries in Ahmedabad.
It collects the seeds of tomato plants from traditional farmers from the Punjab region and successfully genetically modifies them to grow cultivated in arid tropical areas of the Indian subcontinental. The experiment is a hugely successful one.
The genetic manipulation of seeds not only makes them suitable for other ecological environments but also enhances the quality and size of the tomato. Advise them as to how their interest as inventors will be protected under the current Intellectual Property Rights regime in India.
Answer: The genetically manipulated seeds in this case can be protected under the Protection of Plant Verities and Farmers Rights Act, 2001 as the subject is outside the purview of the Indian Patent Act, of 1970.
The Act recognizes the breeder’s right with regards to the scientific modification of the seeds and therefore for its protection the eligibility criteria of the Plant Variety have to be fulfilled i.e., section 15 of the Act defines the criteria of
- Novelty,
- Distinctiveness,
- Uniformity,
- Stability.
The criteria of novelty are not as tough as in the case of the Indian Patent Act, of 1970.
The new variety needs to be registered under the Protection of Plant Verities and Farmers Rights Act, 2001 for Intellectual Property Rights protection.
For registration of plant variety the following pre-requisites are essential:
- Denomination assigned to such a variety
- Every application shall be accompanied by an affidavit showing that such variety does not contain any gene or gene sequences involving terminator technology.
- Complete passport data of parental lines with their geographical location in India and all information relating to the contribution if any, of any farmer(s), village, community, institution or organization, etc., in breeding, evolving, or developing the variety.
- Characteristics of variety with description for novelty, distinctiveness, uniformity, and stability.
- A declaration that the genetic material used for breeding of such variety has been lawfully acquired.
- A breeder or other person making an application for registration shall disclose the use of genetic material conserved by any tribal or rural families for the improvement of such variety.
Question 3. During his stay for sociological research in a tribal populated area of State A tribal people, Mr. X discovered that the indigenous community is immune from mosquito-related infections and diseases. On testing the blood samples, he discovered that their immunity power is comparatively greater in comparison to the urban people of the same age in neighboring areas. Upon further research, They discovered that they consume daily certain herbal leaves of specific plants only found in their region. He shares this knowledge in an article published in the international journal Nature and Medicine. Company ABC was impressed by the research article investigated and did the research from their end to verify the facts on confirming the medicinal properties in the plant they started manufacturing medicines with the ingredients of the specific plant and its leaf to enhance the immunity power. Advise them if they can seek patent rights on medicine.
Answer: Section 3(p) of the Patents Act, of 1970 provides that an invention whose effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components or compounds is not an invention. Traditional knowledge being knowledge already existing is not patentable.
An example is the antiseptic properties of turmeric for wound healing. Another example is the pesticidal and insecticidal properties of neem. The examiner investigates by using the Traditional Knowledge Digital Library (TKDL) and other resources to decide whether the claimed subject matter falls within the purview of the above provision.
However, if there is a substantial improvement in the existing Traditional Knowledge (TK) which enables the invention to fulfill the criteria under the Indian Intellectual Property (IP) Law, Intellectual Property protection can be sought.
The key issue in protecting Traditional Knowledge is prior knowledge of the innovation as much of Traditional Knowledge is already in the public domain being passed on orally or through documentation through generations.
This makes most Traditional Knowledge ineligible for IP protection as the majority of information is already part of “prior art” and therefore there is very little in terms of novelty that can be established for patent protection.
Traditional Knowledge is an integral part of the strength of local community knowledge.
Attempts to exploit TK owned by local communities, for industrial or commercial benefit is a major issue as it is unfair exploitation of knowledge owned by local communities, as IP protection creates a monopoly of patent owners. Governments the world over including India have enacted laws to prevent such unfair exploitation of TK.
Indian law has adequate provisions for the protection of TK. Traditional knowledge, by its very definition, is in the public domain and hence, any application for a patent relating to TK does not qualify as an invention under section 2 (1) of the Patents Act, 1970, which defines that “invention means a new product or process involving an inventive step and capable of industrial application”.
Recent Developments In the Patent System Short Notes
Question 1. Write a brief note on Patentable Inventions in Biotechnology.
Answer:
Patentable Inventions in Biotechnology: The exciting developments in the domain of biotechnology have resulted in intensive R&D activities all over the world including India. After information technology, biotechnology is increasingly recognized as the next wave in the knowledge-based economy.
Biotechnology has been at the core of some important developments in the pharmaceutical, agrochemical, energy, and environmental sectors.
In particular, progress in the fields of molecular biology, biotechnology, and molecular medicine has highlighted the potential of biotechnology for the pharmaceutical industry.
Conventionally, a micro-organism is considered an organism that is microscopic, i.e., too small to be seen by the naked human eye and can be viewed only under a microscope, usually, an ordinary light microscope.
Micro-organisms include bacteria, fungi, viruses, protists, and other prokaryotes as well as some microscopic plants (phytoplankton) and animals (zooplankton).
The US Supreme Court ruled that genetically altered micro-organisms were indeed patentable based on the following criteria:
- They were man-made;
- They were products of human manipulation and therefore considered similar to any other invention;
- They had a specified industrial application (one criterion for patenting is that the invention has utility). Further, the Supreme Court cited the fact that there was precedence for patenting living matter.
- Since 1930 certain asexually reproduced plants have been protected by patenting.
Furthermore, in 1970 the Plant Variety Protection Act allowed for the protection of some sexually reproduced plants.
As a result of the Supreme Court’s decision, the US biotechnology industry flourished and many US patents have been granted on human-made higher life forms such as transgenic mice, fish, etc. Thus, microorganisms, plants, and animals have now all received U.S.
Patenting status. Europe views the patenting of “man-made” life in much the same manner as the U.S. patent office. TRIPS Agreement obliges member states to patent micro-organisms.
Article 27.3 permits WTO member countries to exclude two specific classes of subject matter from patentability:
Diagnostic, therapeutic, and surgical methods for the treatment of humans or animals; and
Plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than nonbiological and microbiological processes.
Though the TRIPS agreement mandates patent protection for micro-organisms, it does not define microorganisms; thus there is no standard definition for member nations to follow.
To comply with the World Trade Organization (WTO), Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, India amended the Patents Act, 1970 with effect from January 2005.
The Indian Patent Act has now a specific provision concerning the patenting of microorganisms and microbiological processes. It is now possible to get a patent for a microbiological process and also products emanating from such processes.
The most vital distinction between the legal practices of India and developed countries is that India does not allow the patenting of micro-organisms that already exist in nature, as the same is considered to be a discovery as per the provisions of Section 3(d) of the Patents Act, 1970 and therefore not patentable.
But genetically modified versions of the same microorganisms that result in enhancement of its known efficacies are patentable.
Another requirement is sufficiency of disclosure which is very important.
The Patents Act, of 1970 stipulates that a sufficient and clear description of the invention should be given.
The Act or the Rule, however, does not stipulate any condition or procedure to meet the requirement of sufficiency of disclosure in the case of inventions involving the use of biological material, which are very difficult to describe in words.
It has been the practice of the Patent Office from time immemorial to follow the practice adopted by the foreign patent offices by allowing the accession No., accorded by a depository institution either foreign or Indian in the patent specification to satisfy the requirement of sufficiency of disclosure of the invention desired to be patented.
Question 2. Write a brief note on the Biodiversity Act, of 2002.
Answer: The Biodiversity Act, 2002
Under the CBD, India enacted the Biological Diversity Act in 2002, and notified Biological Diversity Rules in 2004, to give effect to the provisions of this Convention.
The Act is implemented through a three-tiered institutional structure at the national, state, and local levels. The National Biodiversity Authority (NBA) was set up in October 2003 in Chennai.
As per Section 8(4) of the Act, the NBA consists of a Chairperson, five non-official, and ten ex-officio members to be appointed by the Central Government to represent various Ministries.
The Biological Diversity Act, of 2002 is an Act of the Parliament of India for the preservation of biological diversity in India and provides a mechanism for equitable sharing of benefits arising out of the use of traditional biological resources and knowledge. The Act was enacted to meet the obligations under the Convention on Biological Diversity (CBD), to which India is a party.
This is an Act to provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge, and matters connected therewith or incidental thereto.
Whereas India is rich in biological diversity and associated traditional and contemporary knowledge systems relating thereto. India is a party to the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992.
The vision of NBA is the conservation and sustainable use of India’s rich biodiversity and associated knowledge with people’s participation, ensuring the process of benefit sharing for well well-being of present and future generations.
The mission of the NBA is to ensure the effective implementation of the Biological Diversity Act, 2002, and the Biological Diversity Rules 2004 for the conservation of biodiversity, sustainable use of its components, and fair and equitable sharing of benefits arising out of the utilization of genetic resources.
Biodiversity and Biological Resource Biodiversity has been defined under Section 2(b) of the Act as “the variability among living organisms from all sources and the ecological complexes of which they are part, and includes diversity within species or between species and of eco-systems”.
The Act also defines Biological resources as “plants, animals and micro-organisms or parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value, but does not include human genetic material.
” National Biodiversity Authority and State Biodiversity Boards The National Biodiversity Authority (NBA) is a statutory autonomous body, headquartered in Chennai, under the Ministry of Environment and Forests, Government of India established in 2003 to implement the provisions under the Act.
State Biodiversity Boards (SBB) have been created in 28 States along with 31,574 Biological management committees (for each local body) across India.
Recent Developments In the Patent System Descriptive Questions
Question 1. How has a software patent been defined? Briefly discuss some of the important issues concerning software patenting.
Answer:
- A software patent is generally defined as a patent that protects some programming technique.
- The Foundation for Free Information Infrastructure (FFII) has defined a software patent as being a patent on any performance of a computer realized employing a computer program.
- The important issues concerning software patenting are as follows: Whether software patents should be allowed, and if so, where the boundary between patentable and non-patentable software should lie;
- Whether the invention step and non-obviousness requirement are applied too loosely to software; and
- Whether patents covering software discourage, rather than encourage, innovation.
Question 2. Discuss the criteria for the patentability of software in India.
Answer: The criteria for the patentability of software in India are:
- They are man-made;
- They were products of human manipulation and there of considered
similar to any other invention; - They had a specified industrial application
Question 3. How is the requirement of sufficiency of disclosure met in the case of micro-organisms?
Answer:
- In the case of micro-organism sufficiency of disclosure is very important. The Patent Act, of 1970 stipulates that a sufficient and clear description of the invention should be given.
- The Act or the Rule, does not stipulate any condition or procedure to meet the requirement of sufficiency of disclosure in the case of inventions involving the use of biological material, which are very difficult to describe.