Whilst diversity is generally preferred in conventional wisdom, there are instances

where the benefits of convergence outweigh the cost. In the context of the patenting
of human genes, it is argued that granting patents on isolated human genomic DNA
would increase the potential risk of blocking research on the genes and downstream
uses that may be necessary for further innovation and, more importantly, to
safeguard public health.
This work begins with a short discourse on the function of patent law in
biotechnology. It is followed by an introduction into the basic genetics of DNA before
an appraisal of the Indian and US approaches on the patent-eligibility of human
genes. A brief comparative review of the differences in the Constitutional mandates
of these two nations will be highlighted. It concludes by presenting that the Indian
and U.S. 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.
II. FUNCTION OF PATENT LAW IN BIOTECHNOLOGY[This section is
based substantially on this author's earlier works in Elizabeth
Siew-Kuan Ng, "Immoral inventions: Interaction between ethics and
biotechnology patent law" (2010) 22 Singapore Academy of Law
Journal 931 - 947 at 933 - 934.]
A patent comprises a bundle of "exclusive rights" granted by a State for a limited
period of time for the exploitation of an invention by the inventor in exchange for the
sufficient disclosure of the invention.12 It does not accord a right to practice the
invention,13 neither does it confer any possessory right over the subject matter in a
patented invention. In the context of a patent on human genes, the patent owner
does not have possession over the genes that exist naturally in a human body.
Rather, the patent owner has the right to prohibit its commercial exploitation, for
example, by preventing others from using the genes. *