Intellectual Property Rights and Agriculture Biotechnology

INTRODUCTION

Intellectual property rights that are relevant to agriculture biotechnology include patents, plant breeders’ rights, trademarks, geographical indications, and trade secrets. Out of these patents and PBRs are the most important for agricultural goods and services. A patent gives the exclusive right to the patentee to prevent any third party from using, selling or offering for sale, or importing the patented product or process. It involves various criteria to be considered fit for the grant of patents like novelty, inventive step, and industrial applicability. It involves the disclosure of the patent documents which enables further research to develop new products and processes.

Approximately all countries with their patent laws follow the above-given criteria for the grant of a patent with slight differences. Biotechnology patents have not been permitted in every country. Most of the texts of patent laws specify the non-patentability of plants and animals so the Indian patent Act under Section 3(p) has considered the non-patentability of plants and animals.[1] However, the microorganisms have been excluded from the biological matter which is non-patentable. Biotechnology holds lots of potentials to bring revolutionary changes in the crop production and food sector.[2] The biotechnological research is generally concentrated among a few nations like Japan, the United States of America, and the European Union which shows how proprietary rights are more important the knowledge dissemination in such developed countries.[3] For example in the USA, anything under the sun is granted a patent. Even human gene sequences and animal inventions are also being granted patents.

PATENTING OF PLANTS AND ANIMALS AND RELEVANT LAWS

A patent was granted for a bacterium that ate oil spills for the first time in the United States which gave rise to the patenting of microorganisms and microbial processes.[4] “Harvard Oncomouse” case is another case in which a patent was granted.[5] However, European counterparts have remained slower to grant patents to plants and animals because of the protests initiated by environmental activists based on ethical and moral concerns relating to patenting of living matter. However, it has now been sorted out as the European Parliament introduced a new biotechnology directive.[6] This directive authorizes the grant of patents for plants and animals with certain limitations. Several other countries have enacted plant breeders’ rights to encourage conventional breeding practices. Such legislation is also termed a sui generis enactment which offers lesser protection than patent laws. It is a milder form of intellectual property protection than a patent which protects the interests of breeders, farmers, and researchers by rewarding them with certain rights. The criteria to get their varieties protected under PBRs or PPVFR Act, 2001 (In India) includes distinctness, uniformity, and stability.[7]

This kind of protection of plant varieties encourages breeding efforts made in private biotechnology firms. However, in developing countries, such breeding experiments are more common in the public sector and are carried out by the farmers in their respective fields. But before, nothing like such protection was ever sought to protect the crop varieties. But with the advent of UPOV and intellectual property issues in the development of newer plant varieties, developing countries like India have come up with their national plant variety protection legislation.

In the 1960s access to genetic resources was considered to be a common heritage of mankind.[8] The 1980s marks the advent of biotechnology and patenting of biotechnologically derived products and processes.[9] In 2001, the patent was granted for the first to the genetic sequences.[10] However, in 2001 the criteria of patentability were more restricted. These were required to come out fair on experimentally proven functions, both in the USA and European Union. The international treaty on plant genetic resources for food and agriculture (ITPGRFA) put forward the concern of the effect on plant biodiversity and its access because of various types of intellectual property rights.[11] In addition to this, Convention on Biological Diversity, 1992 which was adopted at “Rio Summit, 1992” proved to be a landmark incident as far as agriculture biotechnology and IPRs are concerned.[12] Agriculture biotechnology in India has been relied upon because of its potential to give greater crop yield with certain other benefits like the cultivation of crops in water shortage conditions, developing disease resistance and herbicide tolerance in plants, etc. In 1982, the Indian government took the initiative to bring biotechnology into the agricultural sector to achieve higher yield targets and fulfilling food demands at the same time. In the 1990s with the introduction of RDNA guidelines for the transgenic crops and breeds generated by marker-assisted selection processes, the government of India heralded a new phase in agricultural development. It was followed by other legislations and guidelines like NCS-TCP for the breeds generated by tissue culture technique, biosafety guidelines, DBT guidelines, food safety, and standards Act, 2006, and many others.

IMPORTANCE OF PATENTING BIOLOGICAL INNOVATIONS AND CONCLUSION

The protection of plant varieties using IPRs has remained a focal point of its increasing importance in the aftermath of the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Intellectual property protection of biotechnological innovations in the agricultural sector has been figured as one of the top agendas of FAO. According to FAO, biotechnology is a powerful tool for the sustainable development of agriculture, and fisheries and for meeting the food needs of the growing population.[13] At the same time, the impact of inappropriate granting of the IPRs in biotechnology has been realized as jeopardizing farmers’ rights and right to food.

Biotechnology in the agricultural and food sector delivers significant and tangible benefits, all the way from farm to fork. It holds optimum potential and promises to meet the present and prospective challenges in agricultural production and the food sector. It is multidisciplinary in its approach as it involves the amalgamation of concepts which includes life sciences, chemistry, and engineering sciences in attaining and improving the technological advancements and applications of the capabilities of biological material and associated matter to develop processes and products significant for the human race. Agriculture is the mainstay of the Indian economy and the demand for high-crop production is increasing day by day so that government could meet the needs of the growing population. Biotechnology crops are being relied upon as one of the emerging alternatives to the traditional techniques like crop rotation, crossing, budding, grafting, tissue culture, and other techniques covered under vegetative propagation which are not that much product in the present time if we could observe. [14] Transgenic crops not only discourage the dependency of the farmers on pesticides and insecticides but also give a proper yield to cope with growing food demands throughout theia.[[14]Biotechnology in the agricultural and food sector delivers significant and tangible benefits, all the way from farm to fork. It holds optimum potential and promises to meet the present and prospective challenges in agricultural production and the food sector. It is multidisciplinary in its approach as it involves the amalgamation of concepts which includes life sciences, chemistry, and engineering sciences in attaining and improving the technological advancements and applications of the capabilities of biological material and associated matter to develop processes and products significant for the human race. Agriculture is the mainstay of the Indian economy and the demand for high-crop production is increasing day by day so that government could meet the needs of the growing population. Biotechnology crops are being relied upon as one of the emerging alternatives to the traditional techniques like crop rotation, crossing, budding, grafting, tissue culture, and other techniques covered under vegetative propagation which are not that much product in the present time if we could observe. [14] Transgenic crops not only discourage the dependency of the farmers on pesticides and insecticides but also give a proper yield to cope with growing food demands throughout theia.[15] Transgenic crops not only discourage the dependency of the farmers on pesticides and insecticides but also give a proper yield to cope with growing food demands throughout theia.[15] Transgenic crops not only discourage the dependency of the farmers on pesticides and insecticides but also give a proper yield to cope with growing food demands throughout theia.[15] [14Transgenic crops not only discourage the dependency of the farmers on pesticides and insecticides but also give a proper yield to cope with growing food demands throughout theia.[15]

With the advent of biotechnology in the agriculture and the food sector, traditional breeding techniques like grafting, layering, crop rotation, etc. have been replaced by methods such as genetic engineering for attaining better results like pest and herbicide-resistant crops, crops that can be grown in unusual climatic conditions, etc. Initially, agricultural biotechnologies focused on the biotechnologically derived plants which are raised by deploying a specific technique called genetic engineering and increasing crop produce by establishing an agricultural alternative for farmers and breeders. The commercialization of biotechnology and its regulation under the present IPR regime is driven by plant patents, plant variety protection law, TRIPS, UPOV (Union of protection of plant varieties and plant breeders' rights), CBD (Convention on Biological Diversity), etc. These all rules and regulations have given a boost to the research and development in the area of plant biotechnology to aid its emergence as a robust technological innovation.

FOOTNOTES [1] ' General Principles of Patent Law' [n.d.] (<http://shodhganga.inflibnet.ac.in/bitstream/10603/21666/4/chapter-iii.pdf> accessed 4 February 2017 [2] Ibid [3] OECD, 'Innovation and Growth: Rationale for an Innovation Strategy' [2007] <http://www.oecd.org/sti/inno/39374789.pdf> accessed 4 February 2017 [4] Ned Hettinger, 'Patenting Life: Biotechnology, Intellectual Property, and Environmental Ethics' [1995] 22 (2) Boston College Environmental Affairs Law Review <http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1359&context=ealr> accessed 4 February 2017 [5] Ibid [6] Rob J. Aerts, 'The Patenting of Biotechnological Inventions in the EU, the Judicial Bodies Involved and the Objectives of the EU Legislator' [2014] (2) EIPR <http://www.keygene.com/wp-content/uploads/2014/09/EIPR14_362_75-146_AERTS.pdf> accessed 5 Feb 2017 [7] S Bala Ravi, 'Effectiveness of Indian Sui Generis Law on Plant Variety Protection and its Potential to Attract Private Investment in Crop Improvement' [2004] 9 () JIPR <http://www.niscair.res.in/ScienceCommunication/ResearchJournals/rejour/jipr/Fulltextsearch/2004/November%202004/JIPR-vol%209-November%202004-pp%20533-548.htm> accessed 5 Feb 2017 [8] Shawn N. Sullivan, 'Plant Genetic Resources and the Law Past, Present, and Future [2004] () NCBI <www.plantphysiol.org/cgi/doi/10.1104/pp.104.042572> accessed 5 Feb 2017 [9] Ibid [10] Robert Cook, 'Patents in Genomics and Human Genetics [2010] () US National Library of Medicine, NCBI <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2935940/> accessed 5 Feb 2017 [11] EASAC, 'Plant genetic resources for food and agriculture: roles and research priorities in the European Union [2011] (ISBN 978-3-8047-3017-5) European Academies Science Advisory Council <https://www.leopoldina.org/uploads/tx_leopublication/Easac_12_PGR_Web_complete.pdf> accessed 5 Feb 2017 [12] Robert E. Evenson, V. Santaniello, The Regulation of Agricultural Biotechnology (CABI Publishing, Oxfordshire, UK) [13] Food and Agricultural Organisation, 'FAO Statement on Biotechnology' ( 2000) <http://www.fao.org/biotech/fao-statement-on-biotechnology/en/> accessed 5 Feb 2017 [14] 'What is Agricultural Biotechnology?' (PDF) <http://absp2.cornell.edu/resources/briefs/documents/warp_briefs_eng_scr.pdf> accessed 6 Feb. 2017 [15] Matin Qaim, 'Agricultural Biotechnology Adoption in Developing Countries [2005] 87 (5) American Journal of Agricultural Economics <http://www.jstor.org/stable/3697713> accessed 6 Feb 2017