Decades prior, if we’d say laboratories are designing animals – it would have come across as a shocker, however now designer pets and genetically modified animals are very much a reality. Laboratories are engineering animals to resist diseases, to glow or to remain miniature in size. However, the question here is how far does intellectual property protect such modifications and what is the role played in this territory?
A genetically modified pet refers to an animal whose DNA has been genetically engineered and altered. The Glo fish is an excellent example of a genetically modified animal – which are fluorescently coloured genetically engineered aquarium fish that have a protein gene introduced into their DNA. Another example would be gene-edited dogs – often referred to as CRISPR-ed dogs that are bred for increased muscle mass by disabling the myostatin gene. Disease-resistant livestock have also been created to improve food security and reduce use of antibiotics.
Many jurisdictions including the USA and Europe permit the patenting of a living organisms provided they meet the 3 criteria which are novelty, non-obviousness and industrial applicability. Harvard’s OncoMouse was the first patented animal that was created to be highly susceptible to developing cancer, making it a valuable tool for cancer research. However, the point to be noted here is that while you can patent the method of modification and the genetic construct, there are often ethical and legal limitations on claiming ownership over life forms—especially in countries like India.
Section 3 of the Indian Patent Act, 1970 provides for what does not qualify as an invention. Moreso, specifically Section 3(j) of the Indian Patent Act, 1970 states that plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals, are excluded from patentability under the said Act. While the provisions specifically exclude living organisms from being patented, genetically modified pets also remain non-patentable, regardless of their altered traits. However, on a literal interpretation of the Section one may be able to might patent the biotechnological process or genetic sequence used to create such modifications, subject to certain conditions. When we look at the global perspective Article 27(3) of the TRIPS Agreement (WTO) requires member countries to allow patents on microorganisms and microbiological processes. On the other hand, the Convention on Biological Diversity (CBD) promotes the conservation of biodiversity, sustainable use of its components, and the protection of indigenous knowledge and rights, thereby influencing national legal frameworks. As a result, the patentability of living organisms differs significantly across jurisdictions, shaped not only by international obligations but also by domestic legal traditions, socio-cultural values, and ethical considerations. While some jurisdictions adopt a more liberal approach, others maintain a cautious or restrictive stance toward patenting life forms
A landmark case relevant to this discussion is the Diamond v. Chakrabarty, wherein the Hon’ble US Supreme Court held that a genetically modified bacterium which belonged to the Pseudomonas genus, created by Dr. Ananda Mohan Chakrabarty, was patentable subject matter under 35 U.S.C. § 101. Dr. Chakrabarty in his patent application, made a process claim for the method of producing the genetically engineered bacterium, a claim for the mixture of bacteria that can break down crude oil and also a claim for the genetically engineered bacterium itself. Even though the examiner at the USPTO rejected the claim for the living organism, the same was reversed by the US Court of Patent Appeal, which was later upheld by the Supreme Court. The main reasoning behind the judgement was that the bacterium, in its naturally occurring state, lacked the distinctive features attributed to the genetically engineered version. These characteristics were a result of human innovation. Court was of the opinion that while laws of nature, physical phenomena, and abstract ideas are not patentable, what is significant in this case is the fact that the bacterium was the product of human ingenuity. To this extent, the fact that it is a living being cannot limit its patent eligibility. While Indian courts have referred to this judgment in academic and policy contexts, the Supreme Court of India has not definitively adopted this reasoning in any ruling.
The Indian legislature and Courts still appear to be taking a slightly rigid approach to the patenting of life forms, only microorganisms, and not higher life forms like plants and animals, are considered patentable in India. Beyond the legal framework, several ethical considerations also come into play—most notably, concerns around animal welfare and the broader question of whether a living, sentient being can truly be considered a ‘property’ subject to ownership through intellectual property rights.
By Aarya Sima Puthran
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