Introduction
Intellectual property plays a critical part in protecting a technology. Technological expansions are encouraged for economic development, especially in a disrupted economy. Hence, Intellectual Property enhances worth to the invention. One such technology is Bioinformatics. Bioinformatics is defined as the application of tools of computation and analysis to the capture and interpretation of the biological data. Department of Biotechnology, the Government of India, classifies Biotechnology[1] as ‘Theoretical and Computational Biology (TCB)’.
In other word, Bioinformatics is defined as the application of computers, software tools, and databases to the study of biological systems. Bioinformatics collects biomedical data and uses information technologies to transform it into information and other types of knowledge. This encompasses a revolution in technology which produces huge data. As a result, advances in bioinformatics are reshaping biotechnology research and applications.[2]
Bioinformatics focuses on biology, at molecular level, used in genetics and involves DNA discovery. Biological data is created by nature. Hence, it is not actually an invention but discovery. Hence, the question is - can we really protect biological data under the IP regime? The protection is important not only because it involves technology, but also to protect the information discovered and to avoid the misuse of such data.
How Is Bioinformatics Protected Under IP Legislations?
Discovery of biological data helps with the research and developing of bioinformatics tools. Research involves technology. Hence, the funding into research is involved - by government as well as private institutions. This field of research is a lot technical and procedural. As it involves technology, it is most likely to be protected under the Patent Law in India.
Bioinformatics is usually complex. But obtaining protection is important. By obtaining protection under the Patents Act, 1970, companies can obtain a legal control over the manufacture and sale of technology and the right to exclude others from using patented technology. Even though apart from Patents, bioinformatics can seek protection in different areas of IP protection.
The case of Diamond v. Diehr[3], the United States court held that the biological sequence has to be categorised as a process, machine or apparatus in order to quality as a patentable subject-matter and idea of itself in not patentable and neither the principle in the abstract.
The companies seeking protection for biotechnology can do so under the Trademarks. The Trademark Act[4] provides protection for trade-names, domain names, product names and service marks by the companies (in the current case). Trademarks can be useful in protecting the company’s name from being used by fraud ones helps in obtaining relief in case of infringement.
Furthermore, Copyrights may be used to protect bioinformatics associated items including books, articles, and software programmes, among other things. Copyright system incorporates computer programmes.[5] Under computer programmes, databases of genetics and genomes, algorithms and computational techniques, etc. can be protected. Though, this path to safety is fraught with realistic and conceptual problems and is usually believed to be inappropriate.
Challenges Ahead
While the TRIPS Agreement[6] of WTO aims to unify national laws by placing substantive minimums on what each member state must adopt, it also permits governments to adjust laws to their own needs. India is a party to the Agreement. Hence, although countries are free to regulate IP in their own manner, it has to conform to the global trend of IP. Hence, its high time that India must invest in a comprehensive infrastructure to support technological advancements.
Such developments require funds from the government to invest in its R&D activity. Government aims at enhancing the reach of biotechnology. Hence, promotes these kinds of developments.[7] This development is not straightforward and has its own challenges.
Filing for patent protection in India, a considered amount of technical knowledge in involved. But such patent agents, with the appropriate skills are less in India. Lack of suck technical skills would not only result in difficulty in acquiring IP protection but also hinder economic activity followed thereby. If a person seeks to learn such area of expertise, this niche area would take a significant amount of time. In such case, not only lawyers, but experts in the technical field would be a great help in enhancing the process of protection.
Conclusion
Seeking protection for Bioinformatics in India is not only important but also difficult. It’s difficult because of technical skill and substantial knowledge involve, which not many would possess. In such case, an institution that would consist of professionals in such niche area and the legal experts might help in improving the protection procedure. Although there are various institutions, involving legal professions would help seek protection under IP regime.
Following that, it would assist Indian companies in persuading foreign corporations to set up in India or partner with already established Indian companies working in bioinformatics. It would also boost Indian economy. On the other hand, an exclusive provision for bioinformatics, or similar footing, can be inserted in the Indian legal regime.
_______________________________ [1] C. J. Clegg, Biology for the IB Diploma (Hodder Education 2014) [2] Ibid [3] Diamond v Diehr 450 U.S. 175 (1981) [4] The Trademarks Act 1999 [5] The Copyright Act 1957, sec. 2(ffc) [6] The Agreement on Trade-Related Aspects of Intellectual Property Rights 1995 [7] Copyright Act (n 5)
*The author of this post is Kalyani Paunikar a law-student from Maharashtra National Law University, Mumbai. She can be reached at kalyanipaunikar31@gmail.com.
Image Source: ICGEB Medical Biotechnology
Article Number: 2022/LKLR/04B11
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Journal.