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Intellectual Property Right (IPR) issues related to Microorganisms

Science of microbiology, having its origins in the early human attempt to modify biological organisms for its needs have reached critical heights from the days of brewing to the current research in genomics, stem cells etc. The commercial application of microbiology in the agricultural industry has shown tremendous expansion in the last few years.  Along with these developments, the ethical and legal issues have also arisen. A creation of human brain which is termed as intellect can also be a property. Intellectual Property thus refers to inventions, industrial designs, literary and artistic works, symbols etc. used in commerce. Protection of intellectual properties may be by patents, copyrights, trademarks etc.

The versatile functions performed by microorganisms have rendered their exploitation and commercial use in both industrial & agricultural sectors. Thus, microorganisms and microbial products have become an important and lucrative component of global business. For example, in 2007-2008, the global microbial biopesticides market was valued at $396 million. But, monetary value of microorganisms and their products concurrently bring the issue of “Rights” for their use and commercial exploitation.  Patent is the strongest form of intellectual property right (IPR) and according to Article 27(3)(b) of TRIPS Agreement allows member states to deny patents for “plants and animals, other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.”

As a result, TRIPS makes it obligatory for all its signatories to extend patents for microorganisms, non-biological, and microbiological processes. In compliance with TRIPs, the Patents Act 1970, as amended in June 2002, gives patent rights for new microorganisms. Naturally occurring microorganisms are not patentable in India but genetically modified microbes or microbe based products can be protected by patent rights. Earlier, inventions pertaining to microorganisms and other biological materials were subjected to product patent in India, unlike many developed countries where microorganisms themselves are patentable.

But with effect from 20th May, 2003, India started granting patents in respect of inventions related to microorganisms. The grant of patent with respect to microorganisms is regulated by the requirements for the deposition of microorganisms under the Budapest Treaty of and accessibility of that microorganism from the depositories. According to the provision (ii) to section 10(d) the microorganism if not being described fully and particularly and is not available to public, the said microorganism is to be deposited before the International Depositary Authority (IDA) under the Budapest Treaty 2002. Since 2001, India has become a member of Budapest Treaty on deposition of microorganisms and consequently two microbial repositories in India viz. Microbial Type Culture Collection (MTCC) and Microbial Culture Collection (MCC) have acquired the status of IDA.

 

For detailed information visit http://ipindia.nic.in/ipr/patent/patents.htm

and http://mtcc.imtech.res.in/download.php

 

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