PATENTING OF MICRO-ORGANISMS IN INDIA, HOME OF PIONEER Ananda Mohan Chakrabarty

Prior to 1980, Inventions pertaining to microorganisms and other biological entities were subject to product patents in India i.e patents were granted for processes and products obtained using microorganisms but no patents were given for microbes as such. Louis Pasteur received a U.S. Patent No 141072 for process of fermenting beer but no patent was given for the living entity “yeast” per say. However, in 1980, Ananda Mohan Chakrabarty developed a “genetically modified” bacterium capable of breaking down crude oil.  This property of degrading crude oil was not not found in the naturally occurring bacteria and thus this invention was thought to have significant value for cleaning up oil spills. With effect from 20.05.2003 India has started granted patents in respect of invention related to microorganisms.

When an invention involves a microorganism, completely describing said invention in the description to enable a third person put the invention into practice becomes difficult.  It would be virtually impossible to describe the microbial strain, its isolation, selection and modification to guarantee that the other person will obtain the same strain from the same environment. In such a situation, the microorganism itself will form an essential part of the disclosure and a sample of the microorganism must be deposited in a recognized institution for its availability to the public. The depositor should, in particular, ensure that the deposit is made in the name of the applicant for the patent and a sample of the microorganism is deposited to an International Depositary Authority before filing the patent application. There should be sufficient time for delays in the mail or customs formalities (if the sample is being sent by mail). If the sample is found to be non-viable by the International Depositary Authority (IDA), a replacement sample has to be provided by the applicant for the patent.

Two microbial culture collections have acquired status of IDA:

(a)    Microbial Type Culture Collection and Gene Bank (MTCC), Chandigarh, UT, India

(b)   Microbial Culture Collection (MCC), National Centre for Cell Sciences, Pune, Maharastara, India

MTCC chrages one time fee for such a deposit.

·        Non-Profit organizations: The depositor has to pay a one time fee of Rs.20,000/- PER CULTURE (Rs.15,000 deposit fee + Rs.5,000/- for making ampoules) + 18.00% GST.

·        Commercial organizations: The depositor has to pay a one time fee of Rs.25,000/- PER CULTURE (Rs.15,000 deposit fee + Rs.10,000/- for making ampoules)+ 18.00% GST.

Example: Patent Number 251658: a novel microorganism which is suitable for the production of hydrogen. This organism is a strain of Thermoanaerobacterium thermosaccharolyticum under the deposition number FERM BP-10793 or its variant.