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