Post Diamond v Chakraborthy, science has developed so much that the demand for enhancing the scope of patent protection has been increasing year after year. The most recent demand from the biotech labs is for giving protection to isolated genes, under patent law in respective jurisdiction. The paper mainly aims to answer the question that “whether the patentability criteria, as the jurisprudence regarding it exists today, are enough to evaluate the standard of patentability of isolated genes or not”.
The authors have examined the laws of various jurisdictions in this regard and have analysed the ‘invention’ of isolated gene with respect to the tests of patentability, to determine if it fails or sustains the same. Arguments based on ethical considerations, which opposes the granting of patent protection to isolated genes, have been put forth for testing of validity. The requirement of enabling disclosure has also been tested, which is must to be filled with the application for the grant of the patent. The research leads to the finding that the present law is insufficient for extending the protection of patent to isolated genes, and thus a dire need of a sui generis protection is increasing.
Abhijeet Kumar & Adrija Mishra, Gene Patenting vis-a-vis Notion of Patentability, Journal of Intellectual Property Rights. NISCAIR. Vol 20(6), pp 349-362.