The one word on everyone’s mind right now is Covid19. It’s slowly taken over the globe and is probably the most feared word at this time. What does this mean? From a research perspective?
The Coronavirus also known as SaRs CoV 2 is a wild strain of the virus. What this means is, it’s in natural form as found in nature. It hasn’t been genetically modified. Is it possible to file a patent for this virus?
The patent laws for each country differ. While some allow the patenting of just the discovery of plants and other species, others don’t.
The Indian Patent Act under Section 3(j) does not allow the patenting of plants or animals. Even if the animal or plant has been modified genetically in a lab, the patent laws in place do not allow for this to be patented.
There are certain criteria required to be met for some discovery to be patented:
Whatever is to be patented must not be already known. It cannot be anticipated anywhere else in the world or within the country on or before the date of filing the patent. Ideally, in the case of patenting a virus strain, the strain of the virus must be new. It must not be revealed in the public domain before the date of the patent. For instance, if the RNA/DNA sequence, nucleic acid names, etc. are already known, disclosed, or published in another scientific paper, it isn’t considered novel and hence cannot be patented.
It’s not sufficient to have just identified the strain. It needs to have some modification, some technical attribute to it that is otherwise unobvious. This means the mere sequencing of the genes isn’t considered inventive.
The invention cannot just be an abstract concept. It needs to be of use in industry. While the strain of the virus may be determined, the patent file itself must convey what’s the use of this strain and the modification thus made. It must highlight how this can be put to use in any industry for beneficial purposes.
To date, only 7 strains of the Coronavirus are known. The most recent one was discovered in Wuhan. The patent for this has been filed in January 2020. Now, if one were to discover another strain of Coronavirus, it needs to meet the novelty requirement. Even so, in India, the patent may still face objections under section 3 of the Patent Act.