Intellectual Property Rights

Intellectual property 

Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. In recent years, instruments enforcing intellectual property rights (IPR), such as patents and trade secrets, have received attention as mechanisms by which biodiversity resources may be maintained while promoting sustainable development and a more equitable distribution of the resulting benefits among nations. Most of the world's biodiversity-rich countries are underdeveloped and lack the necessary technologies to transform biological resources into products yielding significant measurable benefits. With little or insignificant in situ market value, biodiversity-rich wild lands may be expected to succumb to pressure from development activities (c.g. conversion to cropland, inundation of forest lands due to hydroelectric and flood-control projects, etc.).One way to prevent the destruction of wild lands (and, in turn, biodiversity loss) is to promote biodiversity prospecting which creates new markets for biological resources and generates incentives for their conservation. However, biodiversity prospectors generally are multinational corporations from developed countries. These corporations are reluctant to invest in biotechnologies discovered in developing countries due to poorly defined and enforced intellectual property laws. Several scientists currently are addressing this deficiency in IPR protection. Nations which have become signatories of two major international agreements in recent years: the 1992 Convention on Biological Diversity (CBD) (UNEP, 1992) and the 1993 Trade-Related Intellectual Property Rights (TRIPS) (UN, 1993). These agreements call for establishing a set of suitable intellectual property laws in each nation, depending on the type of intellectual material in question and the economic and technological background of the nation itself.

CBD establishes a formal framework for the reciprocal transfer of biological resources and knowledge (technology) between nations. The convention promotes the idea of biodiversity as a global common heritage, which, therefore, requires biodiversity-rich countries to allow access to biological resources to other countries on 'mutually agreed terms' (UN, 1993). CBD requires technology-rich nations generally developed nations, to encourage transfer of technology to biodiversity-rich, under developed countries. Thus, the Convention promotes the exchange of biological resources for technology to facilitate biodiversity prospecting, which benefits all nations in the world.

Even though the resource-technology reciprocity and IPR proVIsions of these agreements have strong economic justification, their use at the global level raises issues concerning the transfer of wealth and respect for national and cultural sovereignty. These issues may become pressing in situations where the resource consumption associated with a patented biotechnology comes in directconflict with traditional uses of a region's biological resources. Contlict may take different forms.

First, the developer of a new biotechnology-who normally has greater financial strength might out-compete traditional users for raw biological material in the input market by paying higher prices,However, the products produced by the new commercial user and traditional users may not compete with each other in the output market. Second, the commercial product developed may have intellectual similarity with traditional products. Then, conferring IPR to a new product/technology may limit or prevent traditional consumers from continuing their use of biological resources. Third, the new commercial product may become a substitute for a traditional product and available at a cheaper price. The lower output market price may drive the traditional producers out of business. Such conflicts can alter the underlying market incentives ofcompeting resource users, with likely adverse implications for biodiversity.

INTELLECTUAL PROPERTY PROTECTION OF PLANT BIOTECHNOLOGY INVENTIONS

It is becoming more and more difiicult to obtain broad claims in patents and the strength of broad claims in issued patents is weakening. A recent example of this is a case in the USA, in which claims to a diagnostic assay to differentiate one genus of bacteria from other were invalidated.

TRIPS

The standard for intellectual property rights is outlined in the global intellectual property treaty agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS) (http://www.wto.org/English/docs e/legal e/27-trips. pelf). Member countries have signed this agreement must ensure that the requirements stated in TRIPS are met in their own legislation. TRIPS states that patents shall be available for any inventions, whether products or prOcesses, in all fields of  technology,provided that they are new, involve an inventive step and are capable of industrial application'.Although seemingly simple and consistent with the requirements for obtaining a patent in most developed countries, this statement is at the heart of most of the controversy relating to biotechnology patenting. An additional paragraph in TRIPS permits several grounds for exclusion in granting patent protection, including exclusion on moral grounds; or diagnostic, therapeutic and surgical methods for the treatment of humans or animals, life forms other than microorganisms and processes for the production of plants or animals. However, these exclusions are optional and vary from country to country. For example, the European Patent Convention (EPC) provides limited moral grounds for exclusion (http://www. european-patent-ofice. org/ legal/epc/ e/ar53.html), yet no such grounds are defined in the Patent Acts in Canada, Australia, the USA or Japan. TRIPS also states that if protection of plants is not available by patent, then member countries need to provide protection in some other way. A standard method for such alternative protection is plant variety protection, as set out under Union Intonational pour la Protection des Obtentions Vegetables, known more simply as UPOV. Plant variety protection UPOV is a global agreement setting out a minimum standard for the protection of plant varieties, similar to that of TRIPS. Member states that have signed the UPOv Convention must ensure that these standards are met within their own legislation. The two versions of UPOV that are currently in force are set out in the UPOV Conventions of 1978 and 1991 and are similar in that they provide protection to a plant variety that is distinct from existing known varieties and that is uniform, stable and novel. However, there are several significant changes in the 1991 Act. For example, The definition of propagating material has been tightened and provisions relating to farmers' rights (or privilege)-Pation under the international agreements. However, there is an active debate as to whether the Treaty will remain subordinate to TRIPS and UPOV. The USA abstained from signing this treaty partly because of the lek of early in the Intellectual property provisions

Us plant patent

Another way to protect plant related subject matter includes a plant patent', a unique form of protection offered in the USA, A US plant patent is available for a plant that reproduces through Moxual reproduction but it does not include a tuber-propagated plant (Section 161 http:www.uplo gov/web/ offices/px/mpep/consolidated laws.pdb) Although not a common form of plant protection, it is used to protect ornamental and fruit-producing trees, roses, poinsettias, wawemes and other plants that reproduce asexually. A plant patent is different from a regular

In the autumn of 2000, the USPTO began rejecting plant patents with a UPOV-based certificate that had been issued before filing for the corresponding plant patent application if the UPOV-based application had been year before the plant patent application had been filed. This interpretation of UPOV based disclosure had not been made previously because it was not considered 'enabling'; that is the disclosure of a plant variety within a Plant Breeder Right's certificate did not provide enough information to enable someone one of skill in the art - to produce the plant variety. The position taken by the USPTO is in direct opposition to that decided in re LeGrice, but the USPTO argued that rejection on these grounds is consistent with Ex parte Thomson. However, it should be noted that the only public disclosure made in rete O rice was a notice in a publication, which is arguably a non-enabling disclosure, whereas in ex parte Thomson, seeds were made publicly available for 1 year before application for a plant patent, clearly placing one of skill in the art in possession of the invention The applicant of a US plant patent is provided with a 1 year period of grace. Strong pressure from the industry resulted in a review of USPTO's position and the issue of a preliminary statement reconting its position (http://www.uspto. gov/inappright.html) and, in May 2002, an amendment to the US Patent Act was proposed (it is still under discussion), providing a 10 year period of grace. Even so, the question as to whether a public, non-enabling disclosure of a plant is sufficient to permit one of skill in the art to be in possession of the invention, as is the case in re LeGrice, was not addressed

Utility patents

Plants can also be protected using a regular (utility) patent in countries that permit patenting of plant or higher life forms (HLF9). This is a more common method for protecting whole novel plants,plant genes, methods for creating novel plants and novel applications for an existing plant. However, the costs are greater and the process more involved than plant variety protection. Many major jurisdictions permit the patenting of non-human HLFs, including Europe, the USA, Japan and Australia

In the USA, patents have been granted to HLFs since the 1980 landmark decision in Diamond v/s Chakrabarty (http://people bu. edu/cbortman/index/chakrabarty.html). The recent Supreme Court decision in the case of Pioneer Hi-Bred International, Inc., Vs J.E.M. AG Supply. Inc. et.al. further established that such protection is valid for plants, even if protection of a plant is available through either plant variety protection or plant patent protection. This case also confirmed that plants are a composition of matter, as ruled carlier by the US Patent Board of Appeal. The scope of protection offered by a utility patent is broader than that available under plant variety protection. As noted above, a farmer saving and replanting seed, and a breeder producing a new variety, can do so without infringing a plant variety certificate. However, if a utility patent, the patent owner, protects the plant or licensec has the right to exclude the making, using or selling of the plant or seed, making a user buy seed every year.

Gene patenting

Although patents have been granted on nucleotide sequence, for 20 years, there has much recent controversy surrounding the parenting of uenes,Genome sequenci w ives, thewith improved techniques for idenifying and sequencing genes, has resulted in an en WOW in the number of pene patents in the last decade.As a result, the chosewe world of gender now being scrutinized closely in many different sectors, not least because the effect of the pattent. Is felt in everyday life, especially healthcare For example, in Europe European Parliament them regarding the patenting of BRCA1 and BRCA 2 (breast cancer associated wees waton the EPo to ensure that all patent applications in Europe do not violets the primaw's twin patentability of humans, their penes or cells in their natural environment. The rein Werlis Iwo European patents related to BRCA1 and BRCA2 and asked that an official weten wie against these patents. The importance of intellectual property in India is well en listwam awek statutory, administrative and judicial, India ratified the wreement establishing World Trade Organisation (WTO), This Agreement, inter alia, contains an Agreement on Trade Re use of Intellectual Property Rights (TRIPS) which came into force from 1" may 1999

COPYRIGHTS

India's copyright law, laid down in the Indian Copyright Act, 1991 as nended by Copy(Amendment) Act, 1999, fully reflects the Beme Convention on Copyrigo, to which India party Additionally, India is party to the Geneva Convention for the Protection of rights of Prodwens of Phonograms and to the Universal Copyright Convention India is also an wutwe member of the World Intellectual Property Organisation (WIPO), Geneva and UNESCO,The copyright law has been amended periodically to keep pace with changing requirements. The recent amendment to the copyright law, which came into force in Mwy 1995, has ushered in comprehensive changes and brought the copyright law in line with the developments in smellit ebroadcasting, computer software and digital technology. The amended law has made provisions for the first time, to protect performer's rights as envisaged in the Rome Convention.