Patent Law-IV: Biodiversity and Traditional Knowledge

Biodiversity and Traditional Knowledge, both are excluded from patent under Indian Patent Act. Section 3(j) of the act states that most of the living things such as plants and animals in whole or any part thereof including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals are not patentable excluding microorganism and microbiological processes. For traditional knowledge, section 3(p) of the act says that an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components is not patentable.

Laws on Biodiversity

Article 27(3) of TRIPS agreement states that the countries have choice over the patent of new variety of plant and can make sui generis laws for its protection. It has been seen that the variety of plants evolve as we observe on comparing Indian farming changes in last 50 years, which is a result of investment of the breeders. Therefore, International Union for the Protection of New Varieties of Plants (UPOV) came into existence in 1961 which provided for the protection of new varieties as intellectual property in order to encourage breeders as well as for the welfare of the society.

In India, the Protection of Plant Varieties and Farmer’s Rights Act was passed in 2001 and again in 2002, Biological Diversity Act was passed to meet its obligation under UN Convention on Biological Diversity (CBD). It aimed at protection of biological diversity in India. The Act established mechanism for equitable sharing of benefits arising out of the use of traditional biological resources and knowledge. It also aimed at secure sharing of benefits with the local people as conservers of biological resources and holders of knowledge and information relating to the use of biological resources. Section 58 of the act has provisions for punishing unauthorized use of biological resources or doing bio-piracy with the imprisonment up to 5 years or fine of 10 lakh which may be increased if the damage is more than that.

Laws on Traditional Knowledge

Article 8(j) of CBD talks about respecting, preserving and maintaining knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyle. In developing countries, traditional knowledge is considered main source of income for many and is considered to be more affordable that the modern alternatives. Traditional knowledge is outcome of intellectual activities in a traditional context which includes know-how, practices, skills and innovations. Patenting traditional knowledge would mean obstructing others from using something which has been in use for generations, for example, patenting on healing properties of turmeric or anti-bacterial properties of neem would wrong millions of people as their use is as old as we remember.

This problem came before the Court in the case of Dhanpath Seth & Ors. Vs. Neel Kamal Plastic Crates Ltd., where the plaintiff owned patent for a device used for manual hauling of agriculture produce and sought injunction against defendant for using it. However the device was proved to be made by using traditional knowledge and hence the court denied injunction on the same. Similarly, studies show that a number of patents are filed which are based on Indian system of medicine. To tackle this issue, Indian government has established a Traditional Knowledge Digital Library to create a database of traditional medicine system in India including practices of Ayurveda, siddha, unani, yoga etc. It converted and structured ancient texts into 34 million A4 sized papers and translated them in English, French, German, Japanese and Spanish.

Aishwarya Says:

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