The ownership question of plant gene and genome Intellectual properties
Nature Biotechnology, November 01, 2015
Author: Jefferson, O.A., Köllhofer, D., Ehrich, T.H. & Jefferson, R. A.
Nature Biotechnology 33 (11) 1138-1143 (2015)
The raging legal debates on the patent eligibility of genetic sequences extend from Europe, where in 2010 the European Court of Justice in Monsanto Technology LLC v.
Cefetra BV held that protection for a patent claiming a DNA sequence is limited by a “functionality” requirement as disclosed in the patent document1, to the United States, where from 2012 to 2013, the US Supreme Court in Association for Molecular Pathology v. Myriad Genetics, Inc.2 and Mayo Collaborative Services v. Prometheus Labs, Inc.3 upheld a shift in the broad scope of patentability of genetic sequences. In fact, owing to additional social and moral concerns over human or plant gene patents, governments of countries such as Brazil and China have also tried, either through court decisions and/or enacted policies, to shape their own standards within the international legal framework and their ability to restrict the patentability of subject matter—be it in medicine or industrial agriculture4,5.
For example, Brazil allows the patenting of methods to transform plants and expression vectors containing heterologous sequences, but it does not allow the patenting of biological sequences isolated from plants or any parts of plants and plant varieties6. China allows the patenting of isolated sequences, modified sequences and transformed plant cells, but carves out exclusions to make all or part of plants and plant varieties unpatentable. Thus, considering how divergent and complex the spectrum of interests in gene patenting is becoming and how limited is our understanding of the practices across various economies, we have designed and developed a dynamic platform, the patent sequence (PatSeq) toolkit, to render biological patents and their disclosed genetic sequences more publicly accessible and their contextual navigation more evidence based8