Plant and seed patenting is in high demand in IndiaAAA IPRIGHT2
Many contentious plant patents have been introduced over the years in India and other countries. For instance, Indian cotton producers protested when Agracetus received a plant-related patent for genetically modified cotton cell lines in 1994, causing a public uproar.
The agricultural community in India claims that these patents are harmful to the interests of a significant crop of national significance and might have a detrimental impact on the Indian economy.
After this government joined the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995, it later canceled the contentious patent under section 66 of the Patents Act and became even more wary of plant patents.
In order to comply with the TRIPS requirement, Section 3(j) was added to India’s national patent legislation in May 2003.
In a similar vein, India waged a difficult campaign to limit the scope of the patent on the basmati rice plant, which was awarded in the US to the Texan business RiceTec in 2000.
Following India’s objection at the US Patent and Trademark Office, sixteen patent claims were deemed invalid.
The Department-Related Parliamentary Standing Committee on Intellectual Property Rights in India recommended that the government reconsider the possibility of patenting plants and seeds, which are currently prohibited under section 3(j) of the Patent Act of 1970, as amended in 2005. This recommendation was made in a 2021 report on IP rights.
Recommendations from a parliamentary committee
The committee urges the Department to “conduct a thorough analysis on approving the patents on plants and seeds favourable to the agriculture sector of the country with a pre-condition of making the government of India a participant in the patent” in para 12.1 (iii) of the report.
In order to assess the viability of permitting patents on plants and seeds that assist the nation’s farmers, it is advised that the Department have thorough talks and extensive consultations with farmer groups and associations. This unmistakably suggests that applying for a patent on plants and seeds in India as well.
American plant patent law
Plant patents have long been granted in the US. In reality, the country established the first Plant Patent Act in 1930, and Henry Bosenberg was given the first plant patent in 1931 for his work on an innovative type of climbing or trailing rose that was produced asexually. Plant patents, like patent rights, give the “right to exclude” anyone from sexually reproducing, offering for sale, or utilizing the copyrighted plant for a period of 20 years.
Indian plant patents
To safeguard Indian farmers against any form of restrictions on their ability to store seeds for growth in the next season, the awarding of patents to plants, their components, and their seeds was vigorously opposed in 2005.
The patenting of, among other things, “plants […] in whole or any part thereof […] but includes seeds, variations and species and basically biological methods for production or propagation of plants” was expressly prohibited by a corollary section 3(J) that was established in May 2003. As a result, plant tissues, cells, and lines are likewise not patentable. In addition, section 3 maintained to prohibit the patenting of agricultural and horticultural techniques (h). However, in order to comply with the TRIPS agreement, genetically modified plants were made patentable under the patent law.
Under the Plant Variety Protection and Farmers’ Rights Act, India chose a sui generis system in 2001 to guarantee protection for plant varieties with a safeguard to preserve farmers’ rights (2001). As a result, India now has a new avenue for the protection of plant types.
However, from May 2003, a new non-patentable provision under section 3(j) has been in place to apply exclusions to plant patents, such as seeds, varieties, and species, as well as biological methods for the production or propagation of plants. When it was determined that India was now in complete compliance with its “international responsibilities” to the WTO, including TRIPS, the Dispute Settlement Body of the World Trade Organization deemed these provisions to be TRIPS compliant.
Plant patents: a new perspective
If a plant or seed is characterized by a single DNA sequence developed by a single individual, it may be feasible to get patents on it. India has issued several patents on seeds and plants that have undergone genetic modification.
Farmers are allowed to conserve the best seeds and plants to assure the highest possible harvests in the future. Therefore, newly found plants or seeds that have improved via natural selection are not eligible for patentability.
Asexually grown plants and plants found in an uncultivated state are likewise ineligible for patent protection.
The legislative committee’s proposal, however, unequivocally favors applying for patents on such novel plants and seeds. This indicates that such plants and seeds may be subject to patent protection for whoever creates or discovers and reproduces any unique and new variety of plant via asexual means, or creates or discovers and reproduces seeds that result in new and improved varieties of plants that are not currently protected by Indian law.
By ensuring the rights of the farmers to regrow and sell the conserved better seeds gained via natural selection, this creates the option for India to establish a new sui generis act in accordance with US plant laws with the necessary protections.
Plant patents are typically rejected on the grounds that newly created plants are only the fruits of our natural environment. All governments prohibit the patenting of natural items. The idea that simple discoveries shouldn’t qualify as patentable subject matter is another argument against plant patents.
To get patents for plants, however, enablement and human intervention requirements may be helpful. With the removal of this restriction on patent protection, newly found plants, including cultivated mutants, hybrids, and seedlings in cultivated regions, would also be eligible for patent protection.
In order to make a thoughtful view and put the recommendations of the parliament committee into practice, the government may now start this discussion on patenting plants and seeds and solicit input from stakeholders, including farmers.
These discussions will create opportunities for new patentable ideas. It is unclear if ornamental plants or horticulture would fall under the purview of such patentability.
However, this is certainly a welcome move to promote and protect plant and seed patents. It will help promote the innovation of farmers and plant nursery skilled workers in India as well. The committee did not recommend adopting a sui generis plant and seed patent act to provide protection for whoever invents or discovers and reproduces asexually any distinct and new variety of plant, or seeds to produce new varieties of plant. But the future feasibility of this action cannot be ruled out.
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