Plants, Animals and Seeds

1Plants and animals, in whole or in their parts, are excluded from patent protection. Seeds, varieties and species are also included under this section. The section also excludes ’essentially biological processes.’ However, micro-organisms can be a patentable invention. Plant varieties are protected by a sui generis system under the Protection of Plant Varieties and Farmers’ Right Act 2001.

2According to s 3(j), patents shall not be granted for ‘plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals’. The above section is modelled on art 27.3(b) of the TRIPS Agreement. Section 3(j) of the Patents Act deals with the following three broad classes which are discussed in detail: ‘micro-organisms’, ’essentially biological processes’ and ‘plants and animals’.

3In Natera v Assistant Controller of Patents and Designs (2025) the Delhi High Court held that “Methods of treatment of plants are not covered by Section 3(i) of the Act and would be patentable so long as the test of Section 3(j) of the Act is satisfied.” (para 79) The Court noted that “The term ‘or plants’ was thereafter deleted from Section 3(i), as the exclusion related to plants was incorporated in a modified form in Section 3(j) of the Act.” (para 69)

4The Patent Office will not grant patents for living entities of natural origin such as animals, plants, in whole or any parts thereof, plant varieties, seeds, species, genes and micro-organism. (See Manual of Patent Practice and Procedure, Patent Office.) Any process of manufacture or production relating to such living entities will not be entitled for patent protection. Any method of treatment such as medicinal, surgical, curative, prophylactic, diagnostic and therapeutic of human beings or animals or other treatments of similar nature, being specifically excluded under the Patents Act, will not be patentable. (Patents Act 1970, s 3(i).) Any living entity of artificial origin such as transgenic animals and plants or any part thereof shall not be entitled to a patent. (See Manual of Patent Practice and Procedure, Patent Office.) However, a living entity of artificial origin such as micro-organisms or vaccines may be the subject matter of patent protection. (Ibid.)

5Section 3(j) of the Patents Act expressly excludes animal varieties and species. The phrase ‘animal varieties’ was interpreted narrowly by the EPO to limit the phrase to a variety and as not extending to animals per se."(T19/90 Harvard/Onco-mouse [1990] OJ EPO 476, [1990] EPOR 501, pp 511-12.) “ection 3(j) of the Patents Act will not permit such an interpretation as it includes ‘animals in whole or any part thereof’.

6In Monsanto Technology v Nuziveedu Seeds (2019) the Supreme Court said that “the issues raised were complicated requiring technological and expert evidence” and that “whether the nucleic acid sequence trait once inserted could be removed from that variety or not and whether the patented DNA sequence was a plant or a part of a plant etc. are again all matters which were required to be considered at the final hearing of the suit” (para 23). The Court said that “we do not consider it necessary to deal with the same at this stage, and leave open all questions of facts and law to be urged for consideration in appropriate proceedings” (para 19).