In this era of fast paced technology and digital information, it is of utmost importance for all industries, including agricultural and food industries to constantly keep a watch on market trends and market their products accordingly. In doing so, these industries are required to not only make continuous investments in branding and innovation but should also endeavour to seek legal protections for these investments and build a comprehensive intellectual property (IP) portfolio. Complete brand protection in terms of captions, slogans, product packaging, product layout, etc. can primarily be protected by Trademarks, Copyright, Designs, Geographical Indications to some extent and by related common law rights. On the other hand, to protect innovations/inventions involving technical ingenuities, these industries will have to avail protection by way of Patents, Plant Variety Protection and trade secrets. Pertinently, in some cases prior to availing the aforesaid protections, the agritech and food industry has to abide by various regulatory compliances including the biodiversity law. This article deals with the imperative issues pertaining to some of the aforesaid laws in relation to agricultural and food industries.
Issues under IP and allied regimes impacting patents regarding the food and agri sector
Coming to the aspect of inventions and scientific breakthroughs, it is important to mention that to stay competitive in the market, businesses are required to continuously innovate as well as to seek patent protection for such innovations to ensure that the competitive edge is not lost easily. A robust patent portfolio shows the technical competence of the entity. Food and agricultural industries can patent their chemicals, specialised machineries, processes, etc. that are being used at various levels of the product cycle such as for cultivation, processing, preservation or storage of food. Today, all industries including food and agri-based industries are witnessing unprecedented levels of automation and this makes patents even more crucial for industries.
To obtain a Patent, the invention by way of a product or process, should be novel, non-obvious with some technical advance or economic significance and should be useful for the industry However, besides the stated criteria, there are certain subject-matter exclusions in the Indian Patents Act, 1970 (Patents Act). Primarily, two subject-matter exclusions which are imperative for the agriculture and food industry are Section 3(j) and Section 3(h) of the Patents Act.
Section 3(j) of the Patents Act:
Section 3(j) of the Patents Act excludes plants and animals, wholly and partially, from patentability, including seeds, varieties and species and essentially biological processes for production and propagation of plants and animals. However, micro-organisms are not subject to this exclusion. The phrase “essentially biological process” used in the section has neither been defined in the statute nor has the exact scope of this phrase been affirmed by judicial decisions, the Biotechnology Guidelines or the manual published by the patent office.
Interestingly, biotechnology guidelines, in one of its examples states that a claimed method involving the step of cross-breeding for producing pure hybrid seeds, plants and crops constitute “essentially biological process” and as a result will be excluded from patentability. However, this example fails to consider whether any human intervention in any of the intermediate steps in such a method will render it patentable and, if it does, to what extent should that human intervention be significant in the claimed process for it to fall outside the scope of Section 3(j) of the Patents Act.
There are some pending litigations in the Indian courts such as Monsanto Technology LLC And Ors. vs Nuziveedu Seeds Limited & Ors. which may provide some insight on this issue in the future.
Section 3(h) of the Patents Act:
Section 3(h) of the Patents Act is another exclusion which excludes from patentability methods of agriculture and horticulture. In all likelihood this provision was intended to exclude processes or methods pertaining to age old traditional practices and conventional breeding or agriculture from patent protection. However, the terms ‘agriculture’ or ‘horticulture’ have not been defined in the statute and there is a lack of judicial precedent or guidelines in the manual of the patent office[ Office of Controller General of Patents Designs and Trademarks, “Manual of Patent Office Practice.”] providing clarity regarding the interpretation of this section. It is also unclear as to how closely a method needs to be associated with ‘agriculture’ or ‘horticulture’ to be excluded from patentability under this provision. Therefore, this provision may prove to be an impediment to the players in the food and agri sector pending judicial determination.
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