Journal of Intellectual Property Rights

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Biological Diversity Act: A Concern for Conservation of Genetic Resource and Associated Traditional Knowledge in India


Affiliations
1 National Law University, NH-65, New Nagour Rd, Mandore, Jodhpur, Rajasthan-342 304, India
 

The Convention on Biological Diversity (CBD) is the first international agreement aiming at the conservation, sustainable development and fair and equitable benefit sharing out of use of biological resources. The Biological Diversity Act, 2002 (BDA) is India’s attempt to operationalize CBD. Some parts of this Act are ambiguous and keep a gap which may lead to misappropriation of genetic resources (GR) and traditional knowledge (TK). Section 3(p) of Patent Amendment Act, 2005 makes the inventions using Indian traditional knowledge as non-patentable, but according to BDA the application for patent using Indian GR and/or TK is allowed (Section 6) while it is mandatory to get the permission from National Biodiversity Authority (NBA). Till 2010, 11 patents are granted based on approval of NBA. Another weak part is the exception of ‘normally traded commodities’ (NTC) from the provisions of BDA (Section 40), this provision leaves a potential chance for misappropriation of these GR and TK and no room is open for legal challenges. This article will try to do the analysis of BDA; it will consider how to clarify the ambiguity regarding patentability/non-patentability of inventions related to GR and associated TK and what is BDA’s role in prevention of misappropriation of Indian GR/TK by using intellectual property rights; it will discuss the vulnerability of NTC provision.

Keywords

Convention on Biological Diversity, National Biological Authority, Normally Traded Commodities, the Biological Diversity Act, 2002, Biological Resource, Traditional Knowledge, Genetic Resources.
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  • EPO Document of Opposition to Patent EP 1962578, 03.02.2012.

  • Sai V, ‘No’ to Monsanto: Indian NGO complains bio-piracy before the EPO over a resistant Melon variety, Spicyip, (2012), http://spicyip.com/2012/02/no-to-monsanto-indian-ngo-complains-bio.html (accessed on 25 March 2014).

  • Prasad S S, Bt Brinjal: HC says Monsanto will have to face bio-piracy case, Bangalore Mirror, 2013, http://www.bangaloremirror.com/bangalore/cover-story/Bt-Brinjal-HC-says-Monsanto-will-have-to-face-bio-piracy-case/articleshow/24303637.cms (accessed on 25 March 2014); Press Release, Karnataka abandons obligation to prosecute violators of Biological Diversity Act, ESG, 2012.

  • Reddy P, An initiative to kill the Knowledge Initiative on Agriculture, Spicyip, 2013, http://spicyip.com/2013/10/an-initiative-to-kill-the-knowledge-initiative-on-agriculture.html (accessed on 25 March 2014).

  • Writ Petition to Karnataka High Court by ESG in October, 2012 against NBA & Others, http://www.esgindia.org/sites/default/files/campaigns/press/esg-pil-biopiracy-hc-kar-oct-2012-final-.pdf (accessed on 25 March 2014).

  • Thirty Seventh Report, Cultivation of Genetically Modified Food Crops – Prospects and Effects, Committee on Agriculture, Fifteenth Lok Sabha, Ministry of Agriculture (Department of Agriculture and Cooperation), http://164.100.47.134/lsscommittee/Agriculture/GM_Report.pdf (accessed on 25 March 2014).

  • Reddy P, NBA set to prosecute Monsanto’s Indian subsidiary: What about Cornell, USAID & the DBT?, Spicyip, 2012 http://spicyip.com/2012/10/nba-set-to-prosecute-monsantos-indian.html (accessed on 25 March 2014).

  • Sood J, Bt brinjal biopiracy case: Court vacates stay, Down to Earth, 2013, http://www.downtoearth.org.in/content/bt-brinjal-biopiracy-case-court-vacates-stay (accessed on 25 March 2014).

  • The Notification in Gazette of India by Ministry of Environment & Forests on 30 October 2009 (Regd. No. D.L. 3300499) Biodiversity News, quarterly e-Newsletter, UPSBB, 1 (2) (2010) 6, http://www.upsbdb.org/pdf/E-Magazine2.pdf (accessed on 25 March 2014).

  • MoE&F, Clarification on MoE&F Notification of October 26, 2009 on Biological Resources Notified as Normally Traded Commodities, http://www.moef.nic.in/downloads/public-information/br-notified.pdf (accessed on 25 March 2014).


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  • Biological Diversity Act: A Concern for Conservation of Genetic Resource and Associated Traditional Knowledge in India

Abstract Views: 157  |  PDF Views: 103

Authors

Gargi Chakrabarti
National Law University, NH-65, New Nagour Rd, Mandore, Jodhpur, Rajasthan-342 304, India

Abstract


The Convention on Biological Diversity (CBD) is the first international agreement aiming at the conservation, sustainable development and fair and equitable benefit sharing out of use of biological resources. The Biological Diversity Act, 2002 (BDA) is India’s attempt to operationalize CBD. Some parts of this Act are ambiguous and keep a gap which may lead to misappropriation of genetic resources (GR) and traditional knowledge (TK). Section 3(p) of Patent Amendment Act, 2005 makes the inventions using Indian traditional knowledge as non-patentable, but according to BDA the application for patent using Indian GR and/or TK is allowed (Section 6) while it is mandatory to get the permission from National Biodiversity Authority (NBA). Till 2010, 11 patents are granted based on approval of NBA. Another weak part is the exception of ‘normally traded commodities’ (NTC) from the provisions of BDA (Section 40), this provision leaves a potential chance for misappropriation of these GR and TK and no room is open for legal challenges. This article will try to do the analysis of BDA; it will consider how to clarify the ambiguity regarding patentability/non-patentability of inventions related to GR and associated TK and what is BDA’s role in prevention of misappropriation of Indian GR/TK by using intellectual property rights; it will discuss the vulnerability of NTC provision.

Keywords


Convention on Biological Diversity, National Biological Authority, Normally Traded Commodities, the Biological Diversity Act, 2002, Biological Resource, Traditional Knowledge, Genetic Resources.

References