Vol. 11 (2015)

Patenting Human Genes: Wherein Lies The Balance Between Private Rights And Public Access In India And The United States?

Elizabeth Siew-Kuan NG

This article examines the patentability of human genes by evaluating where the balance should lie between the protection of private rights and public access for the promotion of further innovation and public health. The author investigates this issue by providing a comparative study on the approaches adopted in India and the United States – two highly divergent nations that offer unique contrasts in a comparative analysis of their patent regimes. The outcome of the appraisal discerns a potential convergence in the Indian and US approaches on certain aspects of human gene patent-eligibility. This interesting result reveals that contrary to intuition, the differences in the state of economic, technological and patent law developments are not necessarily inimical to the prospect of adopting a common approach on certain facets of patent law, such as, those relating to the patent-eligibility of isolated genes. Moreover, the differences in the respective constitutional mandates do not inevitably constrain these two regimes to adopt dissimilar approaches to the legal treatment of issues, at least, in the context of specific aspects of human gene patenting. The article concludes by presenting that the Indian and US approaches on the patent-eligibility of isolated genomic DNA provides the better balance between
granting private rights without jeopardising public access and represents a desirable departure from the current international practices.

Author

Associate Professor of Law, Deputy Chair and Director (Intellectual Property), Centre for Law & Business; Director, LLM (IP & Technology Law) program; Director, Graduate Certificate of IP (GCIP) program; Faculty of Law, National University of Singapore; LL.B (Hons) (University of London); LL.M (First Class) (University of Cambridge); Barrister-at-Law (Middle Temple, London); Advocate & Solicitor (Singapore). My sincere thanks to Divij Joshi, Shreya Kundu and L. Gopika Murthy (Chief Editor) (National Law School of India University, Bangalore, India) and Wong Yong Quan, Benjamin (NUS LLB Class of 2015, Singapore) for their excellent research assistance; to my colleague Stephen Phua for invaluable editorial assistance; and to the anonymous referees for their helpful comments.