Abstract
AbstractOver the last few decades, the number of patents on plants and plant parts has greatly increased in various parts of the world. Most research, however, has focused exclusively on developed countries—the United States and European Union states in particular—while little is known about the extent to which plants are being patented in other parts of the world. This article aims to fill this information gap by providing an overview of the status of patenting plants in the developing countries and emerging economies of the Global South. The research is based on the analysis of legal provisions, patentability guidelines, court decisions (where they exist) and a sample of patents granted in the countries selected for this study. The findings indicate that despite the flexibilities of the World Trade Organization Trade‐Related Aspects of Intellectual Property Rights Agreement regarding the nonpatentability of plants, 60% of the 126 countries in the Global South for which data were available to allow for the patenting of plants or parts thereof, and many such patents have been identified. This situation warrants further reflection and, potentially, review of existing patent laws as developing countries search for ways of responding optimally to the needs of feeding a growing population while adapting to the challenges of climate change.
Highlights
CORREA ET AL.Over the last half‐century, patent law has gradually been extended to cover plants and their parts and components
Examples include Monsanto's patent CN 101321873 B (2013) which claims, inter alia, “a transgenic corn seed comprising more than 4000 ppm lysine”; and Monsanto's patent 279135 granted in India in 2017 covering a method “of producing a soybean plant comprising a linolenic acid content of less than about 6% of total seed fatty acids by weight and an oleic acid content of about 55% to about 80% of total seed fatty acids by weight”
At least 51 countries exclude the patentability of plants, thereby fully using one of the important flexibilities permitted by the Trade‐Related Aspects of Intellectual Property Rights (TRIPS) Agreement in Article 27.3(b)
Summary
Over the last half‐century, patent law has gradually been extended to cover plants and their parts and components. A wide range of claims are often admitted in relation to genetically engineered plants, including genetic constructs and/or their components as well as modified cells and plants. Plant‐related patents may cover DNA sequences (complete or partial genes), promoters, enhancers, individual exons, plasmids, cloning vectors, expression vectors, nucleic acid probes, amino acid sequences (proteins), transit peptides, isolated host cells transformed with expression vectors, plant cells, parent lines and hybrids, seeds, and processes to genetically modify plants and to obtain hybrids (Balachandra & Ramachandranna, 2010; Blakeney, 2012; Janis, 2014; Jefferson, Köllhofer, Ehrich, & Jefferson, 2015; Oldham, Hall, & Forero, 2013; Thomas, 2004)
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