Sui generis solves best and straight turns the disease advantage

For a long time different plant varieties used to take protection under the normal patent system, which when started creating technical problems, with the advancement of technology, countries at the domestic as well as international level realised breeders of a need of sui generis model of protection for plant varieties.

Though the issue involved in protecting biological materials, such as genes, and biotechnologies is very different than the issues that were involved in the cases of plant variety protection, but the similarity between both is the failure of regular industrial patent system in providing a concrete framework for granting of protection to them. Thus, in the same line of jurisprudence, the authors suggest the need of a sui generis model for protecting genetic developments. A sui generis system, satisfying the herein mentioned basic requirements, can be the solution to put an end to this debate. It has to follow:

The system so formed must be developed on the basis of IP jurisprudence;

The system will cover under its scope entire field concerning with genes and biotechnology;

The system must be enforceable through law; and

The system should follow the basics of IP legislations, such as national treatment and most favoured nation treatment

Further, based on the analysis of the existing system of protection it can be said that there are some elements which any sui generis model so formed should contain. These elements are generally interdependent upon each other, so as to complement each other in the ultimate decision making, instead of creating confusion by making provision for several independent decisions on the same issue. Thus, the system so formed shall contain:

The specific subject matter it intend to protect;

Requirement for the grant of protection;

Scope of protection along with possible exceptions;

Term of protection; and

Relationship between the proposed model and existing IP legislations.

Thus, in order to achieve clarity in position over this debate, the system so formed should contain the above mentioned elements. The criteria set forth for patenting a gene should be very different from the generally laid down criteria. As we have discussed, the general criteria fail to assess the isolated gene appropriately. While genes are useful in developing cures to many diseases, patenting them would bring in monopoly and thus the cure to these diseases will not be affordable by the general public. There should preferably be an international system which can set a proper standard within which the whole isolated gene patenting can function. Of course the national sovereignty principle would be applicable for the purpose of creating specific national legislations. The patent should be granted keeping in mind the fact that the interest of the society is not hampered and the researchers needn’t face a trouble in accessing the materials for their work, thus keeping the basic jurisprudence of IP legislation intact.