Charting out the emerging trend of flower patenting across the globe

Charting out the emerging trend of flower patenting across the globe

By ANIRUDH VOHRA | | 19 March, 2016
A Gerbera plantation in Ludhiana, Punjab.
Flower patenting is the emerging trend in cutting-edge agricultural research today, with corporate players across the world starting to realise the importance, both scientific and commercial, of getting genetically-modified saplings patented, writes ANIRUDH VOHRA.

In today’s world the first thing an inventor does, before even inventing something, is to figure out legal ways of securing a patent. But of late, patenting has emerged as a trend in an unlikely area: flowers. These days several companies across the world are patenting species of flowers.  

One such oft-patented flower is known as the Gerberas, which falls in the family of Daisies. Many European companies have managed to create new species of this particular flower and patent them. Then there are the other companies which are ready to pay a hefty sum in order to reproduce these beauties of nature. 

“The scientists working in labs create these new breeds by a method known as tissue culture. Pollen grains of different flowers are mixed and cultivated in order to produce bigger and more colourful flowers,” explains a researcher at Sheel Biotech’s tissue culture facility in Manesar — an Indian agricultural conglomerate working in several areas of agriculture.  These facilities look exactly like the labs one sees in a Sci-Fi movie where several scientists work wearing plastic overalls in a room with florescent lights, under a set temperature, behind sliding glass doors which have biometric locks. 

Bindi Siria, an Italian company that has patents for 10 special varieties of the flower caters to those who want to grow these varieties. They just need to pay the company a specific amount as royalty. “We pay Siria between Rs 5 to 8 for each and every plant that we grow,” says Rishabh Buthra, director of Sheel Biotech. 

Patents and copyrights legally come under the laws of intellectual property rights. If one wants a design of a certain object which has a patent attached with it, one will have to pay the company or the designer a royalty to acquire it.  

Now the process of getting a product, or seed or anything else you can think of, is a long one and requires mounds of paperwork and time. “Before filing a patent to the patent controller in India, two things are to be kept in mind. First that the patent being filed for is an invention, not a discovery. And unless and until you have created something new, you cannot get a patent. For you can’t patent something that is already out there,” says Shashaank Bhansali a, Delhi-based Supreme Court lawyer.

“The Second thing one needs to make sure is that nobody else anywhere on the planet has created the same product. Now this can be tricky for even a small change can make a product different from yours. Thus making the process of getting the patent long and tedious,” explains Bhansali.

After the documentation comes the patent controller and his team, which cross-references the information with papers and research about the product. “This research and cross-referencing can take anywhere between two to five years. After which the patent is either accepted or rejected depending upon the findings of the controller,” adds Bhansali.

In Italy, the process to get a new variety of plant  registered is pretty similar to that of our own. “After paying a fee of 1000 euro your variety can be registered and you receive a tentative certification in two to three months while the government agencies keep researching in the background,” says Rishabh Bhutra.

“Before filing a patent to the patent controller in India, two things are to be kept in mind. First, that the patent being filed for is an invention, not a discovery. And unless and until you have created something new, you cannot get a patent. For you can’t patent something that is already out there.”

But if you think a patent can defend your right against all the copycats, you are wrong, for patents are territorial in nature. A patent issued in India is only valid here and same is the case with other countries. “To rectify this there is a way. Once you apply for a patent, your application is submitted to the World Intellectual Property Organisation (WIPO), which has a treaty known as the Patent Co-operation Treaty. An applicant is given 30 months to apply for a patent in all the other countries that are members of the WIPO,” says Bhansali.

Bhutra further adds: “It is very easy to infringe these patents as once you have purchased the first batch of the tissues or seeds you can keep on producing them without paying the royalty, for there are no legal implications. But this tarnishes the company’s reputation in the market. And it’s because of this that we and all other companies avoid this practice. After all the world is a very small place and in a specific business like ours, it becomes even smaller.”

It’s not that there are no patents on species of plants, seeds or flowers in India. There are but their number is very small. “If you file an RTI and ask for information from the Controller General of Patents, which falls under the Department of Industrial Policy, you will realize that its either agricultural institutes or research facilities that file for such patents. And very few farmers or farming companies do so,” says Dr Sanatsujat Singh of Council of Scientific and Industrial Research, who very recently filed for a patent on behalf of the research facility.

He further adds: “Research facilities such as ours produce these new breeds and species ourselves for further research while selling a few in the open market. The basic reason being we do it to have more and more indigenous species of flowers and other plants, rather than having high imports”

Several companies like Sheel Biotech produce these plants in India for sale, both for domestic consumption as well as exports. But several companies still are trying to catch up in the race of getting patents. “We have been trying to get our patents as well, but it is in the pipeline as the process of getting a patent is very slow and lengthy. Till then we can only sell the plants we grow after paying a royalty,” says Bhutra of Sheel Biotech.  

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