Biodiversity and IP: The Struggle is Real

The Indian Patent Office has seen a steady increase in the number of patent filing in the last few years. A number of these patent applications are centered around biological resources. If you or your company are applying for a patent that uses or is based on biological resources, an important piece of legislation that must considered is the Biological Diversity Act (BDA), 2002.  This article aims to provide an insight on some provisions of the BDA that must be kept in mind while accessing and using biological resources from India. The next article in this series discusses some practical aspect of filing and prosecuting patent applications that use biological resources.

BIOLOGICAL DIVERSITY ACT – SOME IMPORTANT PROVISIONS

The Biological Diversity Act, 2002 was passed by the Indian Parliament keeping in mind the rich biological diversity of India and the wealth of traditional knowledge associated with this diversity. The aim of this act was “to provide for conservation of Biological Diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.

To achieve this aim, BDA includes various provisions to regulate the access and use of biological resources from India and knowledge associated with it, by Indian and foreign nationals as well as companies.

Before discussing these provisions in detail, it is important to answer the question, “What are biological resources? The BDA, defines them as “Biological resources means plants, animals and micro-organisms or parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value but does not include human genetic material”.  Thus, while the definition of biological resources is quite exhaustive and includes within its ambit plants, animals and micro-organisms, their parts, their genetic material and by-products, there are some exceptions. These exceptions include value added products and human genetic material.

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