Published on February 4, 2014
Indian Acts governing different IPRs • Copyright Act, 1957 • The Patents Act, 1970 • The Geographical Indications of Goods (Registration and Protection) Act, 1999 • The Trade Marks Act, 1999 • The Designs Act, 2000 • The Semiconductor Integrated Circuits Layout-Design Act, 2000 • Protection of Plant Varieties and Farmers' Rights Act, 2001 • Biological Diversity Act, 2002
The Protection of Plant Varieties & Farmers Rights Act, 2001 (PPV&FR Act, 2001) • Act – 2001 – 11 Chapters – 97 clauses • • • • Rules – 2003 Regulations – 2006 Notifications – from time to time Case laws – as and when these will appear.
Administration / Enforcement of PPV&FRA
Convention on Biology Diversity Adopted on 5 June 1992; Enforced on 29 Dec. 1993; 190 Countries Parties • • • • Objective & Goals Conservation of Biological Diversity Sustainable use of its components Fair & equitable sharing of benefits arising out of utilization of genetic resources & appropriate transfer of relevant technology. • Appropriate funding
Contnd. • Facilitated Access based on Prior Informed Consent on Mutually Agreed Terms. • Access to Biological resources vis-à-vis Technology • Right over resources & technology Cartagena Protocol on Bio-safety: Sept. 2003; 139 parties
CBD & IPR • IPR in the context of biodiversity are important for • Regulating access to genetic resources (Art.15) • Also, for access to technology for the use of genetic resources (Art, 16, 19) • Development of measures to ensure fair and equitable benefit sharing with • States (Sovereign Rights), and • Communities (Holders of traditional knowledge) (Art. 8j) • Web page and clearing house mechanism: http://www.cbd.int
Biodiversity and Traditional Knowledge in relation to patents Act • Disclosure for source and geographical origin biological materials is compulsory (Sec 10(d)) • To deposit* samples of biological material mentioned in the specifications with a notified repository. • To give particulars of deposit made in the application • Non disclosure or wrong disclosure of source or geographical origin of a biological material used in the invention and anticipation of the invention through prior knowledge oral or otherwise within any local or indigenous community constitute additional grounds for opposition (Sec.25).
Contnd. • * The microbial type culture collection and gene bank (MTCC) [IMTECH, Chandigarh] is a notified Authorized Depository Institution in India that receives Deposits for Biological samples of patentable subject matter (microbes).
BIOPIRACY • Appropriation of sovereign GR of nations & TK of farming communities and seeking exclusive IPR over these resources & knowledge by others 1. Patents may be wrongly granted due to – Oversight during the examination – Lack of access to TK because of inadequate search tools
Contnd. 2. Patents may be granted where national laws does not recognize as prior art – some form of public disclosure of TK – disclosure in other countries 3. Patent has been granted on genuine invention but – the PIC of communities providing the GR/TK not obtained 4. The TKDL initiative is historical and proactive.
List of “bad patents” submitted to TRIPS Council by developing countries S.N. Bioresource Patent no. 1 Turmeric US 5,40,504 2 Bringal, Karela, Jamun, Gurmar US 5,900,240 3 Arhar (Pigeonpea/ Cajanus) US 6,410,596, US 6,541,522 4 Pepper US 5,536,506,US,5,744,161, US 5,972, 382 5 Amla US 5,529,778 6 Basmati rice** US 5,663,484 7 Neem** (Azadirachta) US 5,124,349 ** Bolivia, Brazil, Colombia, Cuba, India & Pakistan ** Patents not included in the list submitted
Biological Diversity Act, 2002 (18 of 2003) MoEF NBA Committee on Agrobiodiversity •Access for Indian Biodiversity to foreigners / Indians. •National Biodiversity Authority •State Biodiversity Boards •Local Biodiversity Committees •Biodiversity Registers •Equitable benefit sharing •Conservation of biodiversity –in situ, & –ex situ
Management of Sovereign Biodiversity in India Some key Functionaries of Central Government • MoEF/NBA – Nodal agency for Indian Biodiversity – Biological Diversity Act 2002 (No. 18 of 2003). • DAC/DARE/ICAR – Protection of plant varieties & farmers’ Rights Act,2001 – Multilateral access to PGRFA and benefit sharing • DBT – Supplementary function for bioresources/ biotechnology. • DISM (Department of Indian System of Medicine) – Supplementary function for biodiversity patents • Others: DST/DSIR/CSIR/DRDO/BARC
Regulation of access to biodiversity in India Chapter – II of the Biological Diversity Act, 2002. Certain persons not to undertake biodiversity relayed activities without approval of NBA. Sec. 3 (1&2) No person* shall, without previous approval of the National Biodiversity Authority, obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for biosurvey and bio utilization. * = Any foreigner , NRI, foreign company or Indian company with foreign participation.
Results of research not to be transferred to certain person without approval of NBA Sec .4: No person shall, without prior approval of NBA, transfer the results of any research relating to any bioresources occurring in, or obtained from, India for monetary consideration ot otherwise to any person as defined in sec.3(2). Explanation – Here, “transfer” does not include publication of research papers or dissemination of knowledge in any seminar or workshop, if such publication is as per the guidelines issued by the Central Government.
Cont. • Section 3 & 4 not to apply to certain collaborative research projects. • No application can be made without approval of NBA • Prior Intimation to state Biological Board for obtaining biological resources for certain purposes.
Benefit sharing under the Biological Diversity Act, 2002 Sec. 21(2):- NBA shall determine the benefit sharing in all or any of the following manner:- a) Grant of joint ownership of IPR b) Transfer of technology
Cont. a) Location of production, research and development units in such areas which will facilitate better living standards to the benefit claimers; b) Association of Indian scientists, benefit claimers & the local people with R&D in bio-resources/ GR, biosurvey, bioutilization c) Setting up of venture capital fund for aiding the cause of benefit claimers;
Cont. • Payment of monetary compensation / non monetary benefits to the benefit claimers as the NBA may deem fit.
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