Claiming Anything Under the Sun: A Study of Appropriation of Plants in the Intellectual Property Legal Framework

This peer-reviewed paper was accepted at the First IP & Innovation Researchers of Asia Conference IPIRA 2019, Kuala Lumpur

25 Pages Posted: 1 Mar 2019

See all articles by Ana Penteado

Ana Penteado

The University of Notre Dame, Australia

Date Written: February 3, 2019

Abstract

This paper aims to examine good public policies to shape limits for patentability of subject matter and investigates a common strategy among applicants to complement intellectual property protection for plants: the registration of breeder’s rights including for native plants.

Hence, the paper’s title based on a famous phrase included in the US Supreme Court opinion in Diamond v Chakrabarty (1980) that everything is patentable under the sun. Generally, public policies should convey transparency for the exclusion of subject matter on the patentability of living things. That unveils a crucial question for policy-makers and legislators of whether limitations on intangible assets for the appropriation of genetic material is necessary.

We argue that restrictions are a requirement for all stakeholders involved for an inclusive and vigorous patent system promoting a fair intellectual property system that relies on innovative inventions in biochemical, in the manufacture, in processes, in methods and substances among other composition of matter.

We delve into the investigative aspect of a limitation to patent components of native plants subject matter which may support disclosure of source and origin of the biological material in patent applications affecting plant breeder’s rights registrability too.

The disclosure of origin is crucial as once a plant specimen is registered as a variety essentially derived of a native plant, or parts of it are eligible for a patent application the appropriation is inevitable. Native plants and commercial crops become a meaningless classification, informative only since all are included for subject matter eligibility.

In this paper, we also aim to illustrate that the hybridization of native plants using introgression should be narrowly regulated by local intellectual property legislation in harmony with the Agreement on Trade-Related Aspects of Intellectual Property Rights, hereinafter TRIPS agreement, so that native plants may be excluded from patentability or registration for PBRs, according to the circumstances.

Another argument that we support is that to register plant varieties essentially derived from other plants via cross-breeding should be limited to avoid a perception of appropriation of local Indigenous communities’ natural resources, as many of these native plants are their primary food source in many of the remotes locations in Australia. If cross-breeding is allowed with no restrictions, many of these plants will become an economic asset for other third parties, with a risk of divesting Aboriginal Peoples to explore their knowledge associated with these plants.

To support our argument, we study the recent appeal of Nuziveedu v Monsanto (2018) in which the New Delhi High Court tested such restrictions by ascertaining an invalidation of a genetically modified crop patent. In this cancelled patent awarded to Monsanto, the New Delhi High Court tested the eligibility of all elements under the Indian Patents Act, section 3 (j) of a transgenic variety seed that should have been registered under the Protection of Plant Varieties and Farmers Rights’ Act, section 28 and 39 in order to allow benefit sharing and researching rights for Indian farmers.

Keywords: Nuziveedu, Monsanto, TRIPs article 27 (3) (b), The Doha Declaration 2001, Convention on Biological Diversity Article 8 (j), Patents, Plant Breeder's Rights, patentability eligibility, exclusion of patentability, nucleic acid sequence, Indian Patent Act, Nuziveedu, Monsanto, Diamond, Chakrabarty,

JEL Classification: Q13, Q17, Q18, Q19, Q27, Q28, Q 33, Z18

Suggested Citation

Penteado, Ana, Claiming Anything Under the Sun: A Study of Appropriation of Plants in the Intellectual Property Legal Framework (February 3, 2019). This peer-reviewed paper was accepted at the First IP & Innovation Researchers of Asia Conference IPIRA 2019, Kuala Lumpur, Available at SSRN: https://ssrn.com/abstract=3342889

Ana Penteado (Contact Author)

The University of Notre Dame, Australia ( email )

140 Broadway, Sydney,
2007
Sydney NSW, New South Wales 2007
Australia

HOME PAGE: http://https://www.notredame.edu.au/about/schools/sydney/law/school-staff/ana-penteado

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