Role of IPR In Bio-diversity
INTRODUCTION
Intellectual Property Rights accord legal protection to ideas and information that can be used in new processes and inventions. Intellectual Property Rights such as Patent, Trademarks, copyright are centuries old but IPRs extended to living organisms is quite new.
The CBD (Convention on Biological Diversity) principles which are most relevant over biological sources and IPRs can be summarized as-
– States have sovereign control over the biological resources within their borders and shall ensure preservation and sustainable use of their resources.
– Although states have the authority to control access to the biological resources, they shall endeavor to create conditions that facilitate such access.
– Such access is granted on mutually agreed terms and subject to the prior informed consent of the party providing such access.
– The benefits of the commercialization of genetic information shall be shared in a fair and equitable way with the party providing such access.
– The wider application of the knowledge, innovations, and practices of indigenous and other local communities shall be conducted with the approval of such knowledge.
PATENTING BIODIVERSITY
On recognizing the importance of Intellectual Property Rights, Biological Diversity Act, 2002 has a special mention for the application of provisions of the Act to Intellectual Property Right in Section 6.
This section clearly states that, “No application for Intellectual Property Rights can be filed in any country without prior NBA (National Biodiversity Authority) approval.” The first provision of the act states that in the event an application is filed, NBA permission may be obtained after the acceptance of the patent, but before patent grant by the patent authority concerned.
It is quite clear from Section 2(c) of the Biological Diversity Act, 2002 that the legislation mainly directs toward patenting of biological inventions, which puts an additional burden, largely regulatory in nature, on the applicant to comply with.
Under recent Indian Patent Office practice, it can be seen that for patent applications that contain any biological material, in the First Examination Report, it is almost casual to come across an objection requiring clarification as to furnish NBA approval in case of use of any biological resource obtained from India. So, it can be observed from Section 6 of NBA that the grant of the patent would be kept in abeyance until proof of NBA approval is provided. For example, use of biological resources for validation purposes of a claimed product would fall under the ambit of the NBA.
NEED OF IPR FOR BIODIVERSITY
Biodiversity includes all life. Since man has started exploiting the natural biodiversity for their personal gains and leads to the extinction of some species, endangering and threatening some of the species that are on the verge of extinction like modified living organisms, newly found species of flora and fauna, its genetic information needs protection and preservation. That’s why the concerned authority felt the necessity of Laws that can regulate, conserve, and protect biodiversity.
IPR (Intellectual Property Rights) laws encourage the commercialization of seed development, monoculture, protect the modified microorganisms and new plant varieties. To achieve this objective the Biological Diversity Act 2002 and the Indian Patent Act,2002 was brought to the light in response to compliance with the Convention on Biological Diversity and TRIPS (Trade-Related Intellectual Property Rights).
The TRIPs agreement obliges the countries to amend their IPR regime to meet much-enhanced International Standard which can protect Biodiversity and associated knowledge systems.
The objective of the CBD is to encourage the conservation, preservation and sustainability of the components of biological diversity. According to the preamble, the TRIPS Agreement is designed to “promote effective and adequate protection of intellectual property rights”. Both conventions ensure the sustainability of the biological diversity and conserve it for future use. These rights are safeguarded by the National Biological Authority of India.
IMPACT OF IPR ON BIODIVERSITY IN INDIA
The country is bestowed with 16 other mega-diversities covering 7-8% of the world. Six million hectares of forest have been lost annually from 2000. Biological Diversity Act was enacted to conserve biodiversity, ensure the sustainability and fair equitable sharing benefits arising from the use of biological resources.
Under this Act, the National Biodiversity Authority is formed in Chennai to keep an eye on the activities related to Indian Biodiversity. The State Biodiversity Board has also been formed in all the States. These local communities are required to maintain the People’s Biodiversity Register to keep a basic record of a region’s biological resources such as plants, animals, and the traditional knowledge of the local communities. But the constitution of the Biodiversity Management Committees is still pending and leads to a delay in the creation of People’s Biodiversity Registers (PBRs) of Bio-resources.
In India, Kerala became the first state to establish Biodiversity Management Committees in 978 villages, 60 municipalities, and 5 corporations. Direct government bodies and preparation of Peoples’ Biodiversity Register have also been completed. The then Chief Minister has completed all the processes for the preservation and protection of State Biodiversity.
In the landmark case of Diamond vs. Chakrabarty, the plaintiff wanted to patent a live, man-made microorganism. This was a new species of bacterium capable of metabolizing hydrocarbons in a manner undiscovered in naturally occurring organisms using DNA processes. So, the plaintiff applied for a patent that was denied by the patent office(defendant) on the basis that the microorganisms were products of nature and therefore not patentable.
The issue in this case was whether a live, man-made microorganism be patented.
As the case was decided, the US laws have included materials such as genetically engineered microorganisms, new plant varieties and biological information all has been declared patentable.
IMPACTS OF INTELLECTUAL PROPERTY RIGHTS
When the hallmark of life on the earth that is biological diversity becomes alarmingly vulnerable to extinctions and overused by humans then the conservation and development of biodiversity is a matter of global concern.
The IP system encourages commercial agriculture and accelerates spread of genetic information. India has a rich and varied heritage of biodiversity. Diversity is the most ecologically sustainable form. The new biotechnologies and the capacity to identify unique genetic material and incorporate them into commercial products has forced a change in industry and in the Intellectual Property system.
The purpose of Intellectual Property Right is to strengthen the innovation and related traditional or modern knowledge system by offering higher monetary returns than the market and legally backing them. These laws have protected the unprotected flow of biogenetic information and resources from the developing countries to the capital rich countries.
The current Intellectual Property Rights regime is supporting commercialization of seed development, monoculture, production of new plant varieties, microorganisms and genetically modified organisms. Consequently, rich biogenetic diversity is being eroded irreversibly. In the race of innovation and man- made species and organism the country has lost variety of food plants and its genes causing genetic erosion.
The demand is for novelty and distinctness in our biological diversity but failure to protect ancient genetic standards of plants and animals. We are losing biodiversity and embracing man-made or genetically engineered plants and animals. Furthermore, an engineered organism may produce harmful effects on other species and environment but all these things went unnoticed and our least bothered. Improved seeds require more fertilizers, pesticide consumption and other chemical compounds, which cause tremendous biodiversity lose.
CONCLUSION
It is time that both the state government and central government take strong actions to protect the Indian ecosystem and save them from the abusive use of man.
The Biological Diversity Act, provides measures for safeguarding traditional knowledge of Indians, preservation of endangered species, prevention of bio-piracy, and protection of genetic information of modified species. It is the responsibility of local communities and central bodies to regulate the Laws smoothly at the ground root level. Speedy action is required to conserve biological diversity from further exploitation and implement Intellectual Property Rights, extending to living organisms, in its true spirit.
