Patentability of Micro-Organism: Ethical or in Contravention to Nature

Abstract

The patentability of a micro-organism is one of the key issues in patent law. Micro-organism means its microbes which are belonging to various groups like Bacteria, Fungi, Protozoa and Viruses. Initially, the micro-organism patent was not allowed but after a landmark judgment given by the U.S. Supreme Court in the case of Diamond v. Chakrabarty1 which states that the micro-organisms produced genetically are not excluded from patent production. The Budapest Treaty was given a legal validity and framework on granting of patent on the subject matter of micro-organism. India is not granting a patent on micro organisms until 2001 from when it signed the Budapest Treaty. To comply with the provision of the Budapest Treaty, India made an amendment in the Indian Patent Act, 1970 in the year of 2002 and 2005. The case Dimminaco AG v. Controller of Patents is a milestone on the validity of micro-organism patenting in India. The question which the author dealt with is, whether the ethical issues are involved in the patentability of micro-organism or is it opposed to nature as it occurs from nature. The author reached the conclusion that although micro-organism occurs from nature, but it is beneficial for the human being to be given patent and patent is given only to inventions like genetically modified things, not to discovery. Therefore, the patentability of micro-organism as such in view of the author is not against nature and it is ethical to grant patent on micro-organism.