No copyright over genotype of hybrid plants
15th December, 2011
Gene patents have seen massive litigation and opposing views from the IP community and companies on the one hand and researchers and general public on the other. The Australian government recently refused to consider a ban on patenting of genetic material. However, ruling against the copyrightability of DNA sequences the Delhi High Court recently vacated an ex-parte injunction in Emergent Genetics v. Shailendra Shivam.
The case, in reality, rests on allegations that the defendants’ plant varieties, viz., ‘Vidhata’, ‘Keshav’ and ‘Amogh’ are genotypically identical to the plaintiff’s plant varieties, ‘Brahma’, ‘Krishna’ and ‘Atal’. It was argued, inter alia, that the defendants had reproduced the unique sequencing formula of the hybrid seeds, thereby resulting in copyright violations.
The court dismissed the claim of copyright on the ground that mere labour (sweat of the brow) or investment of manpower and resources, is not a substitute for originality and reiterated that the work claiming protection ought to be original. The court followed the Supreme Court’s dicta in Eastern Book Company v. DB Modak, 2008 (1) SCC 1 and held that biological sequences are mere discoveries and are not sufficiently ‘original’ under the Supreme Court’s standard.
The court also went on to apply the ‘doctrine of merger’ and held that the sequence in question was the only way in which the idea involved could be expressed and the doctrine of merger did not permit granting exclusivity to those expressions that would effectively monopolize the idea itself.