Law –Biological Diversity Act, 2002 in pursuance of Convention on Biological Diversity, 1993
The Convention on Biological Diversity (CBD) is a legally binding multilateral environmental agreement that has 194 contracting Parties (Countries) as its members with three objectives –
- Conservation of biological diversity,
- Sustainable use of the diversity and
- Ensuring fair and equitable sharing of benefits of such use.
It has entered into force on 29th December 1993.
3rd point is particularly relevant here. To check misappropriation of Indian biological resources or bio-piracy, the Act provides that access to Indian biological resources and associated knowledge are subject to terms and conditions, which secure equitable sharing of benefits. Further, it would be required to obtain the approval of the National Biodiversity Authority before seeking any IPR based on biological material and associated knowledge obtained from India.
It is a bit similar to PPVFR Act we just read. What PPVFR Act protects in plant varieties, Biological Diversity Act, 2002 aims to accord similar protection to general biodiversity. There is no overlap between Biological Diversity Act and Protection of Plant Varieties and Farmer’s Rights Act (PPV&FRA). The scope and objectives of these two legislations are different. In order to harmonise both the legislations, an exemption has been provided under Section 6 (3) of the Biodiversity Act for applicants seeking protection under the PPV&FRA.
The purport of Section 6(3) is to ensure that before grant of IPRs, it becomes possible to realize equitable sharing of benefits arising out of the use of biological resources and knowledge. As the PPV&FRA also has a provision for benefit sharing, an exemption has been provided in the Biological Diversity Act for applicants seeking protection under the PPV&FRA.
The patent applicant should disclose the source and geographical origin of the biological material when used in an invention. Further, non-disclosure or wrongful disclosure of source of biological material and any associated knowledge will result in opposition to the grant of patent or revocation of the patent.
Section 6(1) provides that prior approval of NBA is necessary before applying for any kind of IPRs in India and outside based on any research or information on a biological resource obtained from India. However, in case of patents, permission of the NBA may be obtained after application is made but before sealing of the patent.
