Intellectual Property Law: Biomimetics and Intellectual Property: Grey Area of the use of the word: ‘Novelty’!

 Biomimetics and Intellectual Property: Grey Area of the use of the word: ‘Novelty’!

by Harmanjot Kaur 

‘In an ideal world, the claims would be so clear and unambiguous that no dispute over their meaning would ever arise. But the world is not ideal; language is, by its very definition, multifaceted, layered with meaning and capable of simile or substitution. Words are, to put it succinctly, equivocal.’[1]

With the evolution of science and technology, there is a constant change all around the world. Since ages, humans have been using micro-organisms and their products such as bread, cheese, yeast, wine and alcoholic beverages etc. It was only after Gregor Mendel (1822–1884), whose contribution to humanity opened gates to discover life at the micro level. Today, molecular biology, nanotechnology, genetics have evolved as the technological solution to myriad number of problems. There are various laws which protect the creation of human intellect in the form of intellectual property rights. There are numerous treaties and organisations throwing light to such techniques to protect the new invention such as World Intellectual Property Organisation (WIPO), Agreement on Trade Related Aspects of Intellectual Properties (TRIPS) related to World Trade Organization (WTO), Patent Law Treaty (PLT) etc. Apart from the provisions of WTO, WIPO and TRIPS, The Paris Convention marks itself as the first such convention which consulates Intellectual Property Rights related to patents. In India, the substantive patent law is governed by the Patents Act, 1970, which portray significant provisions related to the Patents.

Provision determining veracity of ‘Inventions’ as Patentable

Patent Act apply to practically all the inventions under the Sun. However, not all ‘Inventions’ are patentable. A mere ‘discovery’ of a new surgical method, a maths equation, a scientific theory, discovery of a new atom in periodic table are not patentable. In the case of Funk Bros. Seed Co. v. Kaloinoculant Co,[2] it was observed that ‘inhibition of bacteria’ is a subject of the Nature. Therefore, it is not a ‘subject’ that could be patented. This judgement throws light on the phenomenon which explains that the things which belong to the Nature are not the subject of Patent Law. No one can claim monopoly by mere discovery in toto to the subject where the things which belong to the Nature. According to Merriam Webster Dictionary, ‘discovery’ means ‘the disclosure of pertinent facts or documents, sighting or learning the existence of something for the first time.’ In order to remove ambiguity, the meaning of ‘Invention’ is explained in Section 2(1) (ja) of the Patents Act: “inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.[i]” The Patent Law defines the ‘Invention’[ii] as an inventive step which involves creativity, innovation, novelty and industrial application.[iii] In other words, we can say, the ‘Invention’ as the one which renders an industrial application, novelty, marketability and technological upgradation to a certain level as it is explained by the TRIPS agreement Article 27.1.[3]

Intellectual Property and Biotechnology are not in isolation

Intellectual Property and Biotechnology are not isolated. We can observe that there are various viruses, vectors, antibodies, vaccines, compositions, transgenic organisms and medical devices which are protected under the Patents Act. Furthermore, we can observe that the names of the vaccines, medical devices, online websites, the company manufacturing that product is protected under the Trademarks Act. In addition to this the genetic modification in various crops, high yield variety crops, mutation is protected under the Plant Breeders' or Plant Variety Rights. Biotechnology is a field of exponential growth in the modern-day society. It is a converging point of physics, chemistry and biology which works both at macro and micro levels. Hence, we can imply that there are a wide range of subjects pertaining to intellectual property and biotechnology.

In order to ease the understanding, biotechnology can be studied by dividing into three overlapping domains viz., health care biotechnology (red biotechnology), industrial biotechnology (white biotechnology) and agricultural biotechnology (green biotechnology).[iv] The biomimetics is the borderline of the three technologies i.e. the red, green and white biotechnology. The use of biotechnology and nanotechnology in the form of biomimetics can be seen in various forms in today’s society. Interferons, which are the group of signalling proteins discovered in 1957 are used to treat cancer and viral infections. They belong to the class of proteins called cytokines; the molecules used to communicate between the cells to trigger the protective defence mechanism in the immune system. These are inspired from the viruses. Furthermore, we have the example of ‘Nano Tech SNA - Drug that only target brain cancer cells. Scientists have developed the nano-sized drug called SNA that travels through brain and attack the specific cells which are affected by cancer thereby preventing the side-effects of the use of drug. These Specific Nucleic Acids- SNA, inspired from the circular-structural of the most powerful bacteria and virus such as Corona. In addition to that, in households we can observe the use of suction pump inspired by the lizard’s feet and its sticking to the walls surface, is another great example how insects and reptiles serve as a source of inspiration in intellectual property.

What is the way forward?

Today, the Israel Aerospace Industries have manufactured an unmanned butterfly which can be installed with a camera on it. The mini unmanned space vehicle can fly by flapping its wings. It can even fly to the confined places. Similarly, China came up with the idea of a dove with high definition camera, GPS antenna, flight control system and data linking with the communication satellite. Apart from that, US defence contractor, AeroVironment conceptualized the technology in the form of a humming bird with a video camera surveillance.

The use of biotechnology and biomimetics portrays itself as a lucrative option to try various aspects and innovate new ideas. But the question arises about the use of the word ‘novelty’. The use of word ‘novelty’ means newness, genuine, uniqueness, originality of the technology. Should there be a new law pertaining to the use of such technology? Can the mimicry of birds and animals be termed as ‘novelty’?

In the light of the above discussion, we can conclude that invention and innovation, and enabled specific recognition that the motivations for an entity to invest in the inventive process are clearly not the same as those that inspire an individual to invent.[v] . We can observe biomimetics in the form of Dragon Drone which was sent by NASA Space Agency to explore Saturn’s largest moon, Titan.[vi] However, as Taylor & Silberston note, the ‘indiscriminate promotion of invention is clearly not a defensible economic objective from any point of view, except probably that of those who earn their living as professional inventors or research workers’.[vii] There is a need to balance between the environment law, constitutional and privacy law. The defence application of such technology may lead to various pros and cons which should be examined with due diligence. The question of morality, protection of plant and animal life are the vital questions to answer yet. The loss of biodiversity due to ultraviolent radiations and radio waves paves a big question mark for such technologies. It would be interesting to examine if this development would comply with the Article 27.3 [viii] of the TRIPS Agreement and Section 3(b) of the Indian Patents Act, 1970. We can observe from the European case of Relaxin where there was a question of morals and ethics.[ix] In this case, the hormone which were used to make the medicine was using the hormone from female ovaries. The question of process, use and marketability was raised here. Therefore, there is a need to properly examine the use and attentive application of the technology. However, we can observe that intellectual property rights are still at its infancy stage and there is a need to strike a balance between the intellectual property rights and other contemporary laws. Thus, we need to attenuate the rights according to the changing conditions and ensure the harmony among them. In sum and substance, we can abide by the fact that there is enough scope of improvement and advance in the field of IPR and Biotechnology.

‘Intangible property, has an infinitely more complex nature and therefore does not stand up to close analogy with its physical brethren. This said, tangible property is something with which all of us is familiar, it is something that the human mind can directly relate to, and therefore the temptation to draw comparison is great and the capacity for misinterpretation still greater.’[x]

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[1] Matt Fisher Media of Fundamentals of Patent Law, p.24 Matt Fisher, Fundamentals of Patent Law Interpretation and Scope of Protection (2007 ed. 2007), http://www.hartpub.co.uk (last visited Oct 16, 2020).

[2] IntlPracticumSpr06.pdf, https://nysba.org/NYSBA/Publications/Section%20Publications/International/International%20Law%20Practicum/PastIssues2000present/Spring2006/Spring2006Assets/IntlPracticumSpr06.pdf (last visited Oct 23, 2020).

[3] trips-and-article-271-2375-4516-1000S1-008.pdf, https://www.longdom.org/open-access/trips-and-article-271-2375-4516-1000S1-008.pdf (last visited Oct 23, 2020).

[i] Section 2(1)(j) in The Patents Act, 1970, https://indiankanoon.org/doc/1348840/ (last visited Oct 23, 2020).

[ii] Sec.2(1)(J) - Invention” means a new product or process involving an inventive step and capable of industrial application.Id.

[iii] Section 2(1) (ac) of the Patents Act: “capable of industrial application in relation to an invention means that the invention is capable of being made or used in an industry. Section

[iv] Andreas Hübel, Thilo Schmelcher & Ulrich Storz, Biopatent Law: Patent Strategies and Patent Management (Ulrich Storz, Duesseldorf, Germany ed.).

[v] Kirin Amgen Inc and others v Transkaryotic Therapies Inc [2005] 1 All ER 667., Fundamentals of Patent Law (Matt Fisher), p. 112

[vi] Karen Northon, NASA’s Dragonfly Mission to Titan Will Look for Origins, Signs of Life, NASA (2019), http://www.nasa.gov/press-release/nasas-dragonfly-will-fly-around-titan-looking-for-origins-signs-of-life (last visited Oct 23, 2020).

[vii] Taylor & Silberston, The Economic Impact of the Patent System: A Study of the British Experience (Cambridge, Cambridge University Press, 1973) at 28.

[viii] trips-and-article-271-2375-4516-1000S1-008.pdf, supra note 7.

[ix] Bioethics and Patent Law: The Relaxin Case, https://www.wipo.int/wipo_magazine/en/2006/02/article_0009.html (last visited Oct 23, 2020).

[x] Matthew Fisher, FUNDAMENTALS OF PATENT LAW: Interpretation and Scope of Protection (2007), http://www.hartpub.co.uk.