Protection of Agricultural Inventions in India

01 November 2012

The Green Revolution implemented the between late 1960s and early 1980s metamorphized India from a chronically food-deficient country to a country self-sufficient in food grains. This revolution has come at a cost, as it involved excessive use of fertilizers and insecticides, and irrigation using ground water reserves. The devastating damage to the ecosystem resulting therefrom and concomitant global warming has challenged the scientists and innovators to device new methods, seeds and cropping systems, which can maximize the output to provide food security to the overgrowing population. This has resulted in a plethora of innovations by Indian and multinational R&D organizations, suitable for less water availability, less insecticide use and increased radiation due to warming.

The Indian Patents Act lists in Section 3 inventions that are excluded from grant of patents. One such exclusion listed in Subsection (c) of this section relates to “the mere discovery of any living thing or non living substances occurring in nature.” The term “discovery” refers to isolating or finding a new biological organism or a part thereof. The term “occurring in nature” is considered to include all the isolated and unmodified biological material as such materials are considered to be present in nature.

Subsection 3(j) excludes “plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals” from patentability. The term “any part thereof” is considered broadly by the IPO to include all the cells, tissues, organ systems or any part thereof. However, there is an exemption for microorganisms. But the microorganisms which are present as such in nature are excluded under the scope of Subsection 3(c). Similarly, isolated amino acid sequences and gene sequences are not allowed. However, modified microorganisms, which not present as such in nature, can be the subject matter of a patent.

The term “essentially biological process for production or propagation of plants and animals” denotes the biological process of growing plants or animals or a part thereof in vitro as well as in vivo. However, in vitro processes other than the mere biological process for growing or propagation of plants and animals are allowable.

In this connection, Subsection (h) of Section 3 excludes from patentability any method of agriculture or horticulture. Therefore, processes or steps of the processes which relate to propagating plants or plant cells or animals or animal cells and involve essentially biological process in vitro or in vivo are rendered unpatentable under Subsections (h) and (i) of Section 3. In such cases, claims have to be restricted to steps excluding the ones merely biological in nature.

Subsection (i) of Section 3 excludes from patentability any kind of treatment of human beings or animals to render them free of any disease or increase their economic value. This subsection, however, exempts any such processes related to plants. For such processes to be patentable, the process should not include the merely biological process steps for propagation of a plant or plant cell and should not be not an agricultural or horticultural process.

As an example, Indian Patents 197070 and 212553, pertain to a process of artificially inducing agar formation in trees of Aquilaria Spp by treating the plant with a chemical which produces stress in the plants which leads to production of agar in the xylem tissue of the tree. The process as claimed in these patents comprises the steps of selecting an appropriate tree, making the desired chemical solution and applying the solution to the tree to render it capable of producing agar, thus increasing its economic value.

Section 3(p) excludes from patentability an invention comprising traditional knowledge or which is an aggregation or duplication of properties of traditionally known components. According to a related provision in the Indian Biological Diversity Act, any person seeking a patent in India or outside India based on any research or information on a biological resource obtained from India should obtain approval of the National Biodiversity Authority before grant of the patent. The “biological resources” for purpose of this provision means plants, animals, microorganisms or their parts or genetic material or by-products.

In India, plant varieties enjoy protection under a sui generis system which imparts protection to new plant varieties, essentially derived varieties, extant varieties and farmers varieties. The protection of farmers’ rights is a truly exceptional feature of the Indian Plant protection act. The Act ensures farmers' rights to information for performance of the registered varieties being sold to him. Further, in case the varieties fail to perform as promised, the farmers are a party for compensation. In order to get registered under this act, a variety has to pass a test for novelty, distinctiveness, uniformity and stability. For ascertaining distinctiveness, uniformity and stability, field trials are conducted.

To sum up, India has the necessary policy and legal framework to encourage and promote R&D in agriculture and to safeguard the inventions in the field of agricultural bio-technology and to protect plant varieties. It is expected that in interest of food security, legal provisions relating to protection of such inventions and plant varieties will further evolve to give impetus to efforts to develop better varieties of seeds, plants and methods of agriculture.

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