Patenting Microorganisms

Introduction

Unearthing a microorganism  in nature is a mere discovery that is not patentable. But if it is isolated from its natural environment or produced by means of a technical process, e.g., using a microbiological process, such microorganism may be the subject of an invention, even if such microorganism occurred in nature.[1]

Under the Intellectual Property Code (“IP Code”), microorganisms and non-biological and microbiological processes are patentable if they are novel, involve an inventive step, and are industrially applicable. The process generally involves isolating a microorganism, depositing it with the international depositary authority, and securing a patent.

Definitions

Microorganisms include bacteria, plasmids, viruses, unicellular fungi (including yeasts), algae, protozoa and, moreover, human, animal and plant cells, and other generally unicellular organisms with dimensions beneath the limits of vision which can be propagated and manipulated in a laboratory.

Isolated plant or animal cells or in vitro plant or animal cell cultures are treated as microorganisms, since cells are comparable to unicellular organisms.[2]

Microbiological process refers to any process that makes use, or results in, a microbiological material, comprising steps that may be microbiological or non-microbiological in nature.[3]

Legal Framework

Both the TRIPS Agreement (to which the Philippines is a party) and the IP Code ensure that micro-organisms and non-biological and microbiological processes are not excluded from patent protection.[4]

TRIPS Agreement

Under Article 27.3 (b) of the TRIPS Agreement, members may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.

IP Code

Under Section 22.4 of the IP Code,  plant varieties or animal breeds or essentially biological process for the production of plants or animals are excluded from patent protection, but this does not apply to micro-organisms and non-biological and microbiological processes.

Budapest Treaty

The Philippines is a member of the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, otherwise known as the “Budapest Treaty”.[5]

The Budapest Treaty requires patent applicants of member states to deposit samples of biological materials with an international deposit authority (“IDA”) as a form of disclosure to enable a person skilled in the art to carry out the claimed invention. The IDA is tasked to ensure that the deposited biological materials are viable and uncontaminated and to provide samples to interested parties.[6]

Illustrative examples

The Philippine Intellectual Property Office has granted invention patents to the following biotechnology-related applications:

• A bacterial strain, Streptomyces DSD3025, with antimicrobial activity against multidrug-resistant Staphylococcus aureus (MRSA). It was isolated from Sulu Sea marine sediments using the dry stamp method and identified by gene sequencing.[7]

• Corynebacterium bacteria, genetically modified by weakening enzyme inhibitors (SugR)and enhancing acid-producing enzymes (GltA) to produce more putrescine or ornithine.[8]

• An insecticide composition against the common cutworm (Spodoptera litura) derived from ipil‑ipil (Leucaena leucocephala) seeds. The seeds are oven‑dried,  pulverized, defatted with petroleum ether, and then extracted with ethanol. The extract is collected by suction filtration and concentrated by rotary evaporation.[9]

• A probiotic mix of 53 microorganisms for swine poultry, and aquaculture, in solid form, produced by growing, incubating, fermenting, and drying the aerobic and anaerobic bacteria.[10]

Summary

The Intellectual Property Code and the IPOPHL 2022 Biotech Guidelines allow the patenting of microorganisms that are isolated or produced through non-biological or microbiological processes, provided they meet the requirements of novelty, inventive step, and industrial applicability. This mirrors the protection recognized by the TRIPS Agreement and the Budapest Treaty.

[1] Page 25, IPOPHL Biotech Guidelines (2022)

[2] Page 14, IPOPHL Biotech Guidelines (2022)

[3] Page 14, IPOPHL Biotech Guidelines (2022)

[4] Article 27.3 (b), TRIPS Agreement and Section 22.4, IP Code.

[5] Acceded by the Philippines on July 21, 1981; in force since October 21, 1981.

[6]https://www.wipo.int/en/web/budapest-system. Accessed on February 25, 2026. Also refer to Articles III and IV of the Budapest Treaty

[7] Philippine Patent No. 1-2021-0500091 B1 dated December 19, 2025, issued to the patentee University of San Agustin (Iloilo City).

[8] Philippine Patent No. 1-2017-502396 B1 dated August 10, 2023 issued to the patentee CJ CHEILJEDANG CORPORATION.

[9] Philippine Patent No. 1-2021-050295 B1 dated January 10, 2025 issued to the University of the Philippines Los Banos.

[10] Philippine Patent No. 1-2017-000306 B1 dated October 1, 2025 issued to the University of the Philippines Los Banos.