IPL Final Submit

Intellectual Property Law
NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL
In the partial fulfillment for the requirement of the project on the subject of Intellectual Property Law of
B.A., L.L.B (Hons.), Eighth Semester.
Submitted on 18th April 2022
TOPIC – Patenting of Life forms in India
Submitted to:
Prof (Dr.) Monika Raje {Faculty for Intellectual Property Law}
Submitted by:
Hrishikesh Jaiswal (2018BALLB126)

PATENTING OF LIFE FORMS IN INDIA
Table of Contents
Acknowledgement..........................................................................................................................4
Chapter I: Introduction................................................................................................................5
Chapter II: Research Methodology.............................................................................................8
Statement of Problem:.................................................................................................................8
Objectives:...................................................................................................................................8
Hypothesis:..................................................................................................................................8
Research Questions:.....................................................................................................................8
Research Methodology:...............................................................................................................8
Review of Literature....................................................................................................................8
Chapter III- Patents on life-forms and living processes...........................................................10
Patenting of life forms...............................................................................................................10
Patenting of Life Forms-The Indian Stand................................................................................10
Patents in micro-organisms and its conceptual issues...............................................................12
Conceptual issues.......................................................................................................................13
Negative impacts of patenting of transgenic animals................................................................15
Ethical Issues.........................................................................................................................15
Patents on human life:...............................................................................................................16
Patenting of Genes.....................................................................................................................16
Why are genes being patented?.................................................................................................17
Morality and Patents- Is there a connection?.............................................................................17
Reason for non acceptance of human gene patenting................................................................17
What they say who are in favour:..........................................................................................18
Chapter IV: Conclusion..............................................................................................................20
Bibliography.................................................................................................................................22
Page 2 of 21| NLIU BHOPAL

Acknowledgement
This paper has been made possible by the unconditional support of many people. I would like
to acknowledge and extend my heartfelt gratitude to Prof. Monika Raje for guiding me
throughout the development of this paper into a coherent whole by providing helpful insights
and sharing her brilliant expertise. I would also like to thank the officials of Gyan Mandir,
NLIU, for providing material for this study. I am deeply indebted to my parents, seniors and
friends for all the moral support and encouragement.
Hrishikesh Jaiswal 2018BALLB126

Chapter I: Introduction
Patenting of life forms in India for many years has been perplexing for the stakeholders. The
Indian Patent Office has evolved over time to come up with various initiatives to address the
issues surrounding patenting of life forms. Even though the initiatives have helped in addressing
the confusions to an extent there still needs some work to be done to provide a clarity for the
stakeholders.1
A life form could be a unit or a being that is alive in nature. As an example, it may be anything
from plant or an animal or a virus to a human being. This provokes a question whether living
beings can be patented?
The Indian government's stance on patenting life forms has gradually changed over time. Couple
of decades earlier, India was against granting patents to life forms. The same is apparent based
on India's demand on review of Article 27.3 of TRIPS and support for the African group
proposal on review of Article 27.3 presented in 1999, which suggested that patents on life should
be prohibited, including those on microbiological processes. However, TRIPS had directed the
member countries to allow patents to all technologies and microorganisms as well. To comply
with the direction of TRIPS, amendments to the Indian Patents Act, 1970 were made between the
years 1999-2005 in order to suit India's international commitments under TRIPS. Particularly, an
amendment to the Act was made in the year 2002 which allowed patents on microorganism. The
amendment opened up new possibilities to secure patent rights for new microorganisms and
other areas involving microorganisms.2
In order to patent a living form in India, the invention must meet the requirements stipulated by
the Act. The requirements include sufficient disclosure of the invention, the invention is new,
non-obvious and useful, the invention meets the vendibility test, and the invention is in the
public interest. Since, the Patents Act does not grant patent for the discovery of "any living thing
or non-living substance occurring in nature," the product or process that is to be patented is ought
to be secluded from nature by application of human intervention.
1
Tripathi K.K. 2002. “Biotechnology: Government of India Initiatives”. Saketlnd. Digest. Feb., pp.49-53.
2
Tiwari G.S.- “Conservation of Biodiversity and Techniques of People Activities”, 43 JILI (2001)

The judgment by the Calcutta High court in the case Dimminaco A G v/s Controller of Patent
Designs & Ors" on January 2001 completely flipped the panorama of patenting life forms in
India. Dimminaco A G, a Swiss company approached the Hon'ble High Court of Calcutta upon
getting a refusal on its process patent that pertained to preparation of a live vaccine for Bursitis.
The company got denial on the grounds that, the invention containing a living organism was not
patentable as under section 2(1)(j). The Controller of Patents determined that the process was not
an invention, since the end product produced by the corresponding process contained a living
organism, thereby making it not patentable. On the contrary, the High Court applied the
vendibility test to the invention and deemed that the process results in a vendible item that is new
and useful. Since the process resulted in a vendible item, patent was granted for the process and
there was no discussion about the end product containing living material in reaching this
conclusion. The conclusion which could be drawn from the instant case is that, patent rights are
granted to a process rather than a product provided that the product produced using the process is
a vendible item.3
Further, the Act was amended in the year 2002, to include Section 3(j) which does not allow
patenting biological processes for production of plants and animals, or plants and animals in
whole or in part other than microorganisms. This amendment opened gates for patenting living
forms (microorganisms) and not just the processes of producing the life form. It is still uncertain
how far Section 3(j) would aid in patenting of microorganisms as there is an ambiguity in
defining what constitutes a microorganism. 4Therefore, it is vital to have a clear working
definition for "microorganism" as a legislative amendment in India.
However, there is a clarity in the matter of patenting Genetically Modified Organisms (GMOs).
GMOs are also categorized under life forms, and even though GMOs are living beings, they do
not occur naturally in nature. A significant human intervention is necessary for the development
of GMOs. Hence, the Act provides more leeway for patenting GMOs.5
It is to be noted that biotech companies make huge investments in the research and development
to come with new improved microorganisms. Considering the huge money that is invested and
3
Verma S.K. –“ Access to Biological and Genetic Resources and their Protections”, 43 JILI (2001)
4
Ganguli, Professor Prabuddha, Relevance of Copyright and Relater Rights for SMEs at
www.ircc.iitb.ac.in/IPCourse04/copyrightPGWIPO.doc
5
Ravishankar A., and Archak, Sunil, Intellectual Property Rights and Agricultural Technology: Interplay and
Implications for Idia, 35 EPW, 2010.

the risk that is taken by these companies it is virtuous that these companies are rewarded for their
work. Denying patents for microorganisms that are developed as a result of intensive research
and huge investment is highly demoralizing to the companies. It is also to be considered that
genetic engineering and biotechnology is an important player in the development of a country.
The developed nations such as USA, Japan and European countries recognized this and have
framed the legislation that makes it easier to patent life forms. The Indian government over the
time has made necessary amendments to address the issues surrounding the patenting of life
forms. However, it is not sufficient and there is scope for improvement. Considering all of the
above, it is imperative for the Indian government to come up with legislations to clear the
ambiguities clouding the patenting of life forms.6
6
http://www.slideshare.net/shradha29/patentability-of-microorganisms

Chapter II: Research Methodology
Statement of Problem:
A patent can be understood as an IPR relating to inventions and is the grant of exclusive right,
for a limited period, provided by the Government to the patentee, in exchange for full disclosure
of his invention, for excluding others, from making, using, selling, importing the patented
product or process producing that product for those purposes. This study normative employed
normative method to examine the legality of patent on the life forms.
A life form could be a unit or a being that is alive in nature. As an example, it may be anything
from plant or an animal or a virus to a human being. This provokes a question whether living
beings can be patented?
Objectives:
This study describes and analyses the various legal regimes governing intellectual property rights
in the protection of life forms, patent on life forms, plant varieties and sets forth regulatory
options for national governments to protect plant varieties while achieving other public policy
objectives relating to plant genetic resources.
Hypothesis:
The Indian government's stance on patenting life forms has gradually changed over time. Couple
of decades earlier, India was against granting patents to life forms. But, the situation has changed
after the coming up of TRIPS.
Research Questions:
A. Whether living beings can be patented?
B. Is it imperative for the Indian government to come up with legislations to clear the
ambiguities clouding the patenting of life forms?
C. What are the conceptual issues with patenting of micro-organisms in India?
D. What are the positive and negative impacts of patenting of Life forms in India?

Methodology:
The work basically fulfils doctrinal research criteria as the possibility to have an empirical study
over the topic is very feeble. But the approach is analytical in nature.
Review of Literature
A. Singh Shiv Sahai, The law of Intellectual Property Rights, Deep & Deep Publications
Pvt. Ltd., New Delhi, 2004.
B. Bashishth Dr. Vikash, Law and practice of intellectual property in India, 3rd Edition,
2006, published Bharat Law House, New Delhi.
C. Lee Burgender, Legal aspects and managing technology, 2nd edition 2001, South
Western College Publication, U.S.

Chapter III- Patents on life-forms and living
processes
Patenting of life forms

To begin with the most obviously contentious subject, should life forms be patentable?
Logically, the answer is straightforward if the criteria as they now stand are followed accurately.
A life form as it occurs in nature is not patentable because there is no inventive step. A captured
life form is also not patentable, because the concept of caging is not novel (though a new and
ingenious design of cage might be).7 A modified life form is patentable, but only as far as the
actual modification is concerned. This view is intermediate between current patent practice,
which has allowed excessively broad claims on the strength of a limited modification (cotton, for
example), and the vitalist position that nothing to do with life should be patentable. Neither of
these extremes make sense. To think about this wide gap of opinion, it helps to project forward
to the time (probably sometime during this century) when new life forms will be synthesized
from scratch. Such life forms will surely be inventions, and therefore patentable. We shall
understand them fully, so the mystical element will be gone (incidentally, that's not to say there
should be no sense of wonder at such an accomplishment). Before that point it will be
commonplace to modify life forms so extensively that their origins are unclear. These projections
warn us that appeals to morality to prohibit patenting of life forms will not in the end be
sustainable1 . But that is not to say that the issue is trivial, just that it cannot be dealt with at the
level of patent claims. Conflicts arise because under the current exclusive-rights system
possession of a patent confers too much power. We therefore need to institute stricter controls on
use. Until that has been done, it is better to retain an illogical but precautionary position on
claims.8
7
European Commission (1998). Directive on the Legal Protection of Biotechnological Inventions
98/44/EC, 6 July 1998.http://www.europarl.eu.int/comparl/tempcom/genetics/links/directive_44_en.pdf
8
Danish Board of Technology (2005) Recommendations for a Patent System of the Future.
http://www.tekno.dk/subpage.php3?article=1132&toppic=kategori11&language=uk&category=11

Patenting of Life Forms-The Indian Stand

In India before 2002, amendment the understanding is that there is no patent protection for
invention relating to life forms. But in Dimminaco A.G v. Controller of patent and design,40 the
Calcutta High Court held that a process for preparation of vaccine containing live virus is
patentable since the term manufacture covers even living organism. So according to the Court
even if the end product contains a live virus the process involved in bringing out the end product
becomes an invention. It may be noted that there is no decision reported till date directly on the
application of the inventive step standards to inventions relating to biotech patents in India.9
In the light of Article 27 of TRIPS the Section 3 of Patent Act, 1970 has been amended. The
definition of invention, new invention, inventive step reflects restrictive approach to the legal
protection of living materials. In the absence of definition for plant, animal, micro organism
essentially biological process, non-biological process and plant variety its interpretation by the
patent office becomes crucial. Since the term micro-organism can have a variety of definition
which may not be exhaustive to include genetic material, it is argued that it is safer to place
reliance upon the guiding provision in TRIPS agreement.10
Another concern is that if the inventive step is going to be interpret by considering only technical
advance or economic significance, then standard of patentability gets lowered and the same
should not be allowed. Because these factors has been used as secondary considerations and they
never served as a basis for establishing inventive step.11
The 2008, patent manual incorporates provisions which is used as a guidance by the patent office
to interpret various provisions in the Act. Standing Problem,Distance, Surprising Effect, Long
Felt Need, Failure of Others, Complexity of Work, Commercial Success, 12 Cheaper and more
9
Matthijs, G. (2004) Patenting genes Brit. Med. J. 329 1358-1360
10
Jensen, K. and F. Murray (2005) Intellectual Property Landscape of the Human Genome Science
310 239-240
11
Intellectual Property Institute (2004): Patents for Genetic Sequences: the competitiveness of current
UK Law and Practice. A study on behalf of the Department of Trade and Industries.b
http://www.dti.gov.uk/5397_DTi_Patent_Study.pdf
12
Reaping the Benefits of Genomic and Proteomic Research: Intellectual Property Rights, Innovation,

economical Product and simplicity of the proposed technological solution are considered as
indicators of inventive step in 2008 draft Manual of Patent Practice and Procedure.
Patents in micro-organisms and its conceptual issues

Can microorganisms, for instance, be patented? Prior to 1980 the answer to this question was:
NO. Microorganisms were clearly products of nature and as such were not considered patentable.
However, the era of maneuvering DNA between organisms changed that.13
The Mashelkar committee report has clearly stated that microorganisms are patentable subject
matter in India. Inventions pertaining to Microorganisms and other Biological material were
subjected to product patent in India, unlike many developed countries. But with effect from
20.05.2003 India has started granting patents in respect of invention related to microorganisms, 14
though India was not obliged to introduce laws for patenting microorganisms per se before
31.12.2004. Microorganisms patenting per se being considered to be a product patent, the period
of protection was 5 years from the date of grant or, 7 years from the date of filing of application
for patent. Now grant of patents for microbiological inventions is for a period of 20 years from
the date of filing.15
The most vital and important distinction between the legal practices of the India and developed
countries is that India (developing countries) does not allow patenting of microorganisms that
already exist in nature as the same is considered to be a discovery as per the provisions of the
section 3(d) and therefore not patentable.16 But genetically modified versions of the same
microorganisms that result in enhancement of its known efficacies are patentable.17
and Public HealthnCommittee on Intellectual Property Rights in Genomic and Protein Research and Innovation,
NationalbResearch Council (2006)bhttp://www.nap.edu/catalog/11487.html
13
CAMBIA (2004) The CAMBIA BIOS Initiative: Biological Innovation for Open Society.
CAMBIA, Australia, www.cambia.org
14
Rajiv Jain and Rakhee Biswas, Law of Patents procedure and
practice, Vidhi publishing (P) Ltd, New Delhi, Second Edition, 1999.
15
https://www.iatp.org/news/patents-on-life-forms-should-be-re-examined-says-india
16
World Intellectual Property Organization. J Intellect Prop Rights. 1998;3:27–8.
17
Leesti M. Historical Background, General Provisions and Basic Principles of the TRIPS Agreement and
Transitional Arrangements. J Intellect Prop Rights. 1998;3:68–73.

The grants of Patent in respect of Microorganisms depend upon the regulations concerning the
requirements for the deposition of Microorganisms under the Budapest Treaty of which India has
become a member, and accessibility of that microorganism from the depositories. 18 As per
proviso (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 under the Budapest Treaty.
Conceptual issues
India has allowed patenting of microorganisms but the Patent Act does not provide a definition
of the term Microorganisms.19 This has led to many debates regarding patentability of microbes.
In the absence of clear definition of microorganism and microbiological process in the TRIPS
agreement, the country needs to draw a distinctive line between the product of human
intervention leading to novelty and those freely occurring in nature.
Dimminaco case: a case in the point: Although the Indian Patent Act, 1970 does not permit
patenting of microorganisms, per se, this particular case at Calcutta High Court is a case to
understand the intricacies of patenting. Dimminaco Case 2 clarified the position relating to
patentability of biotechnology inventions, particularly in a case where a process of manufacture
of vaccine involving a living end product was involved.20
The main issue in contention between the parties was whether the phrase 'method of
manufacture' used in section 2(1) (j) could be said to include a live organism. The court, in its
positive affirmation, has held that the dictionary meaning of 'manufacture' did not exclude from
its purview the process of preparing a vendible commodity that contains a living organism.21
18
Ibid
19
Slack A. Ted Case Studies, Turmeric. Washington: Trade and Environment Data base; c2005. [Available from:
http://www.american.edu/ted/turmeric.htm.
20
Roger Brownsword, W.R. Cornish and Margaret Llewelyn, The Modern Law review, Human genetics and the
law: Regulating a revolution, Blackwell publishers, 1998.
21
Raju KD. WTO-TRIPS Obligations and Patent Amendments in India: A Critical Stocktaking. J Intellect Prop
Rights. 2004;9:226–41.

The application of microorganisms in food is a million dollar industry today. Since genetically
modified microorganisms (a criteria that lends the human intervention angle to satisfy one of the
criteria to make the organism patentable) is not permitted to be used in the food industry, the
only source for improving the textural and sensory properties of food is by isolation of new
strains of bacteria that deliver these properties.22
One need not mention the time, effort and money involved in this excercise. In the Dairy
industry, lactic cultures are used for the preparation of fermented products and cheese whose
consumption rates are increasing at a rate of 10% annually. Suppressing the growth of these
fermented products is the growth of functional foods containing probiotic cultures. These are
bacteria that when consumed in sufficient quantities confer some beneficial attributes to the
host.23
The probiotic strains used in these products have been isolated after decades of research work
followed by clinical trials to prove their probiotic attributes. Most of these strains are patented in
the European Union and the United States (where isolation of a new strain of bacteria is
patentable). As a result, these companies are marketing these products containing these
microorganisms. 24
However, the same protection for these bacteria is not available in India. This is not encouraging
enough for the academia and industry in India to isolate potential probiotic strains due to the
absence of patent protection. Some of the probiotic products launched in India are by companies
which use strains that are catalogued by leading international culture suppliers or by foreign
companies that have these strains.
22
“Enabling the Safe Use of Biotechnology: Principles and Practices”.Washingtc” D.C.: The World Bank. Griffiths,
A.J.F., J.H. Miller, T Suzuki, R.C. Lewontin, ant W.M. Gelbart. 1996. An Introduction to Genetic Analysis. New
York: W.H Freeman and Company. Helen Pearson. 2003
23
Barton, J.H. 1991. Patenting life. Scientific American, 264(3), 40-46.
24
Dismukes, K. 1980. Life is patently not human-made. Hastings Center Report,
October 1980, The Hastings Center, USA.

One may also run the risk of being accused by other nations of being insensitive to the issues of
promoting multilateral trade and hence of being subjected to sanctions which may prove to be
more economically ruinous in the long run.25
Negative impacts of patenting of transgenic animals26

The major concern that arises out of patenting of transgenic animals are that transferring genes
from one species to another transgresses the natural barriers between them and affects the
integrity of species. Species belonging to the same group, though they may slightly vary from
one region to the other based on the environmental conditions, they primarily have the same gene
pool.27
Ethical Issues
A number of ethical issues stem from the patenting of animals. Most of them deal with the
consequences that could arise subsequent to patenting of animals while the other arguments
focus on the religious, philosophical and spiritual grounds. The arguments which go against the
patenting of animals are difficult to prove as many of them are factual assertions which are still
to occur or to be proven. The DNA is considered to be intimately related to the species identity
and hence no part of it should be controlled for commercial interest.28
In case of human beings, human DNA is unique and hence possesses intrinsic value of a sacred
kind. It can also be put as 'Human DNA bears the image of God' and to tamper with them and
own them for commercial and economic interests would hurt the sentiments of the many.29
25
GATT (General Agreement on Tariffs and Trade) 1989. GATT TRIPs Standards for
trade-related intellectual property rights: Submission from Canada, 25 October 1989. GATT Secretariat UR-89-
0323.
26
Sharma Manju and K.K. Tripathi. 2000b. “Excellent Opportunities in India’s knowledge based Biotech Industry”.
US-India cooperation in
scientific research aiding entrepreneurs in excellerating pace ofrevolution in fast-growing biotech industry. Business
Times,Washington D.C., XVIII (3). Society of Toxicology. 2002.
27
Hopper, W.D. 1991. A challenge to policy: The revolution in agricultural science.
Discussion paper presented to the Research Branch of Agriculture Canada, Ottawa, 13 February 1991. 22 pp.
28
Kenney, M. 1986. Biotechnology: The university-industrial complex. Yale University
Press, New Haven, CT. 306 pp.
29
Tripathi, K.K. 2001 b. Biotechnology: Government of India Initiatives”. Indian Investment Center News Letter.
(Ministry of Finance), March 25, 2001, pp. 4-10.

The view that plants, animals and microorganisms comprising life on earth are part of the natural
world into which we are born and hence the conversion of these species, their molecules, or parts
into corporate property through patent monopolies is counter to the interest of the people of the
country and world, has been taken by many.
Patents on human life:30

A most alarming aspect of patenting life is the patenting of human genes, cell lines and tissues.
Corporate patent attorneys have lobbied the Patent office that these products of nature are
patentable once they have been isolated to produce a form not found outside of a laboratory. For
example, in 1976 a leukemia patient named John Moore had surgery at the University of
California to remove his cancerous spleen.31
The University was later granted a patent for a cell line called Mo, removed from the spleen,
which could be used for producing valuable proteins.32 The long term commercial value of the
cell line was estimated at over one billion dollars. Mr. Moore demanded the return of the cells
and control over his body parts, but the California Supreme Court decided that he was not
entitled to any rights to his own cells after they had been removed from his body.33
Patenting of Genes
Our Genes define us, as a species as well as individuals, and hence for human genes there are
strong oppositions both on the religious and secular front. Patents are being granted to genes
despite there being many arguments for keeping the genes in the public domain. A patent cannot
be granted on a gene as it naturally occurs. Isolation of the gene is required for it to be
patentable. The patent offices have treated genes as a new chemical compound and have granted
composition of matter patents.34
30
Tripathi K.K. 2002. “Biotechnology: Government of India Initiatives”. Saketlnd. Digest. Feb., pp.49-53.
31
Journal of Intellectual Property Right, Vol-18, March, July, September,
2012
32
Ibid
33
Lesser, W. H. 199 la. An overview of intellectual property systems. In Siebeck, W.E.,
et al., Strengthening protection of intellectual property in developing countries:A survey of the literature. World
Bank Discussion Papers No. 112. The World
Bank, WA. pp. 5-15.
34
Sherwood, R.M. 1990. Intellectual property and economic development. WestviewPress, Boulder, CO. 226 pp.

Thus a patent granted on an isolated and purified DNA composition confers the right to exclude
others from any method of using that DNA composition for upto 20 years from the date of filing.
However Human Beings are not patentable as human multicellular living organisms are not a
patentable.35
Why are genes being patented?

Genes have been used for gene therapy though it is still in the early developmental stages. The
technology used in each gene therapy will have huge commercial value in the coming future
making patenting crucial. However gene therapy is not a patentable subject matter in India.36
Morality and Patents- Is there a connection?

Patents on living organisms are morally objectionable to many. Patenting organisms and their
DNA promotes the concept that life is a commodity and the view that living beings are gene
machines to be exploited for profit.37 If it is possible to consider a modified animal an invention,
are patents and marketing of human reproductive cells far behind? Patents derive from concepts
of individual innovation and ownership, which may be foreign to cultures which emphasize the
sharing of community resources and the free exchange of seeds and knowledge.38
Reason for non acceptance of human gene patenting

Patents on living organisms are morally objectionable to many people. Patenting organisms and
their DNA promotes the concept that life is a commodity and the view that living being are gene
machines to be exploited for profit.39
35
Supra note 4 at 56
36
Gallini, Nancy T. & Trebilcock, Michael J., Intellectual Property Rights and Competition Policy: A Framework
for the Analysis of Economic and Legal Issues, in Competition Policy and Intellectual Property Rights in the
Knowledge-based Economy, Economics of Legal RelationshipsVol.3, 1998.
37
Ibid
38
Walter, L. 1989. Report of the Committee on the Judiciary. 1988. In Lesser, W.H.,
ed. Animal patents: The legal economic and social issues. Macmillan Publishers
Ltd, Stockton Press, New York, NY. p. 147.
39
Verma S.K. –“ Access to Biological and Genetic Resources and their
Protections”, 43 JILI (2001)

If it is possible to consider a modified animal an invention, are patents and human reproductive
cells and their marketing far behind? 40Patents derive from concepts of individual innovation and
ownership, which may be foreign to cultures which emphasize the sharing of community
resources and the free exchange of seeds and knowledge. Many disputes involving patent
infringement cases emerged because of question related to obviousness, enablement or the
priority of invention that had to be decided by the courts.41
More difficult were the questions about the ownership rights and privileges. For example, in the
patent Unique T-lymphocyte line and products derived therefrom, the inventors used the spleen
of a patient Mr. John Moore who suffered from hairy cell leukemia and came for treatment to Dr.
David Golde at UCLA. As part of the treatment, his spleen was removed and Dr. Golde
developed a cell line with enriched T-lymphocytes that produced large amounts of lymphocytes
useful for cancer or AIDS treatment.42
Without Mr. Moore's initial knowledge or consent, but requiring his repeated visits to the
hospital, Dr. Golde and the University of California applied for a patent on the cell line derived
from Mr. Moore's spleen which was granted in 1984. Mr. Moore subsequently sued Dr. Golde
and the University supreme Court. Both the Appeals Court and the Supreme Court recognized
the novelty of Mr. Moore's claim Mr. Moore on the issue of conversion (unauthorized use of his
body part), but recognized his right to be informed of what the physician was doing involving his
health and well being. It's as irony that a person is not given any benefit of the substance which
he himself had produced, and at the same time others are minting money from the same
substance.43
What they say who are in favour:

That without patents society won't benefit from revelations about the molecular roots disease.
Moreover the arguments that patenting DNA promotes the view that life is a commodity, cannot
Supra note 12 at 34
40
Tiwari G.S.- “Conservation of Biodiversity and Techniques of People

41
Activities”, 43 JILI (2001)

42
Ibid
43
Supra note 32 at 12

be accepted because it is not that the main aim of the DNA patenting to earn profit or to use it for
someone personal interest, on the contrary the overall aim of the patent system is to promote the
public interest and to provide a fair reward to inventors. The patents system is said to be justified
because it provides an important incentive for the development or new products and technologies
related to healthcare.
One of the most coveted arguments which are vociferously put forward against the patenting of
life forms is that the First World patenting of Third World genetic resources represents theft of
community of biological resources. Patents held by the industrialized world on biological
resources from the developing world will serve as a tool for the North to accumulate more wealth
from the already impoverished south.44 Microorganisms, plants, animals and even the genes of
indigenous people have been patented for the production of pharmaceuticals and other products.
Requiring developing nations to pay royalties to the wealthy industrial nations for products
derived from their own natural resources and innovation in robbery. Moreover the developing
world has never received compensation or recognition for these intellectual and technological
contributions. Patenting life forms will exacerbate this inequality. This bio-colonialism will
continue the pattern of a few transnational corporations profiting at the expense of genetic
resources of the third world countries.45
44
“Enabling the Safe Use of Biotechnology: Principles and Practices”.Washingtc” D.C.: The World Bank. Griffiths,
A.J.F., J.H. Miller, T Suzuki, R.C. Lewontin, ant W.M. Gelbart. 1996. An Introduction to Genetic Analysis. New
York: W.H Freeman and Company. Helen Pearson. 2003.
45
Vandana Shiva, Captive minds, Captive lives (Essays on ethical and ecological implications of patents on life)
Research foundation for Science, Technology and Natural Resource Policy, Dehradun, 1995.

Chapter IV: Conclusion
Patents on life forms hinder research, indigenous economies, and genetic diversity. No
individual, institution or corporation should be able to claim ownership over species or varieties
of living organisms. In actuality, patents enable companies to create a monopoly on a product,
permitting artificially high pricing. As a result, products such as drugs are often priced out of
reach for many of those who need them. Patents in science promote secrecy and hinder the
exchange of information. By patenting products of research, the free flow of ideas and
information necessary for cooperative scientific efforts is reduced. Scientific materials required
for research will become more expensive and difficult to purchase if one corporation owns the
rights to the material.46
Patents exploit taxpayer-funded research. The development of biotechnology rests on 50 years of

federally funded biomedical research.47 Corporations can make profits on their patented products
by charging high prices to the citizens whose tax dollars supported the research and development
of the products. Citizens are unfairly being asked to pay twice for medicines and other products.
Patents promote unsustainable and inequitable agricultural policies. A disastrous decline in
genetic diversity could be the result of patenting of crop species.
The genetic diversity inherent in living systems makes patent claims difficult to defend. The
development of genetically uniform organisms would make it easier for corporations to maintain
their patent claims. Biotech companies holding broad spectrum patents on food crops will lure
farmers to grow modified varieties with promises of greater yields and disease resistance. 48
However, numerous examples worldwide show the improved crops have failed to hold up to
corporate promises, and led to the loss of the rich diversity of traditional crop varieties.
46
Roger Brownsword, W.R. Cornish and Margaret Llewelyn, The Modern Law review, Human genetics and the
law: Regulating a revolution, Blackwell publishers, 1998.
47
Ranga.M.M, Animal biotechnology, Agrobios (India), Jodhpur, 1999-2000.
48
Nair KRG and Ashok Kumar, Intellectual Property Rights, Allied Publishers Limited, New Delhi, 1994.

First World patenting of Third World genetic resources represents theft of community resources.
Patents held by the industrialized world on resources from the developing world will serve as a
tool for the North to accumulate more wealth from the already economically impoverished
South. Microorganisms, plants, animals and even the genes of indigenous people have been
patented for the production of pharmaceuticals and other products. Requiring developing nations
to pay royalties to the wealthy industrial nations for products derived from their own natural
resources and innovation is robbery.49
Patenting life forms bring with them overbearing issues of religious and ethical values. In today's
competitive and globalized world, biotechnology revolution is affecting industry and growth in a
big way. It would, thus, be in our national interest to document, protect and modify new
microorganisms isolated from various parts of our country and find their new and improved
industrial uses. However, in the clash between socialist and capitalist centric ideologies, the
betterment of the society as the prime objective should be borne in mind before our regulatory
bodies arrive at a conclusion.
49
Manish Arora, Universal’s Guide to Patents Law, as amended by the Patents (amendment) Act, 2002, Universal
Law Publishing Co. Pvt. Ltd, Edition 2002.

Bibliography
Other Authorities
World Intellectual Property Organization. J Intellect Prop Rights. 1998......................................11
Reports and Government generated resources
European Commission (1998). Directive on the Legal Protection of Biotechnological Inventions

.....................................................................................................................................................9
Tripathi, K.K. 2001 b. Biotechnology: Government of India Initiatives”. Indian Investment
Center News Letter. (Ministry of Finance), March 25, 2001....................................................14
Journals and Online Articles
“Enabling the Safe Use of Biotechnology: Principles and Practices”.Washingtc” D.C.: The
World Bank. Griffiths, A.J.F., J.H. Miller, T Suzuki, R.C. Lewontin, ant W.M. Gelbart........13
http://www.slideshare.net/shradha29/patentability-of-microorganisms..........................................6
https://www.iatp.org/news/patents-on-life-forms-should-be-re-examined-says-india..................11
Intellectual Property Institute (2004): Patents for Genetic Sequences: the competitiveness of
current........................................................................................................................................10
Verma S.K. –“ Access to Biological and Genetic Resources and their.........................................17
Books
Matthijs, G. (2004) Patenting genes Brit. Med..............................................................................10

Ranga.M.M, Animal biotechnology, Agrobios (India), Jodhpur..................................................19
Roger Brownsword, W.R. Cornish and Margaret Llewelyn, The Modern Law review, Human
genetics and the law: Regulating a revolution...........................................................................12
Sharma Manju and K.K. Tripathi. 2000b. “Excellent Opportunities in India’s knowledge based
Biotech Industry”. US-India cooperation..................................................................................14
Tiwari G.S.- “Conservation of Biodiversity and Techniques of People Activities.........................4
Tripathi K.K. 2002. “Biotechnology: Government of India Initiatives”.........................................4

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Intellectual Property Law

NATIONAL LAW INSTITUTE UNIVERSITY,

Submitted on 18th April 2022

TOPIC – Patenting of Life forms in India

Prof (Dr.) Monika Raje {Faculty for Intellectual Property Law}

Hrishikesh Jaiswal (2018BALLB126)

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Hrishikesh Jaiswal 2018BALLB126

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Chapter II: Research Methodology

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Chapter III- Patents on life-forms and living

Patenting of life forms

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Patenting of Life Forms-The Indian Stand

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Patents in micro-organisms and its conceptual issues

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Negative impacts of patenting of transgenic animals26

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Patents on human life:30

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Why are genes being patented?

Morality and Patents- Is there a connection?

Reason for non acceptance of human gene patenting

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What they say who are in favour:

Tiwari G.S.- “Conservation of Biodiversity and Techniques of People

Activities”, 43 JILI (2001)

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Chapter IV: Conclusion

Patents exploit taxpayer-funded research. The development of biotechnology rests on 50 years of

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World Intellectual Property Organization. J Intellect Prop Rights. 1998......................................11

Reports and Government generated resources

European Commission (1998). Directive on the Legal Protection of Biotechnological Inventions

Journals and Online Articles

Matthijs, G. (2004) Patenting genes Brit. Med..............................................................................10

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