About this topic
This topic deals with the legal protection of three things: biological diversity (the forest), plant varieties and farmers' rights (the field) and traditional knowledge (the village). Each has its own international framework and its own Indian law. The topic is built around three problems, which are answered in the Quick revision at the end.
Problem 1 (the herb): A foreign cosmetics company has studied a herb that a tribal community in the Western Ghats has used on burns for generations. It now wants a European patent on a skin cream made from it. The community asks: can a stranger own what the community has always known?
Problem 2 (the seed): Renu, a wheat farmer near Ludhiana, bought seed of a registered variety last year. This year she kept part of her harvest as seed, swapped a little with her neighbour, and sold the extra grain in the mandi. The breeder's agent now calls her an infringer.
Problem 3 (the basket): A businessman has made a traditional bamboo basket in plastic, patented it, and wants to stop everyone else from selling it.
Biological diversity: the forest
Meaning of biological diversity
Section 2(b) of the Biological Diversity Act, 2002 defines biological diversity as:
"the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems."
Biological diversity, in simple words, is the variety of life, from genes to whole ecosystems. It includes diversity within species, between species and of ecosystems.
The Convention on Biological Diversity
The Convention on Biological Diversity is the global charter for biodiversity.
- Opened for signature at the Rio de Janeiro Earth Summit on 5 June 1992.
- Came into force on 29 December 1993.
- It now has 196 Parties.
Article 15(1): sovereign rights of States
The turning point of the Convention is Article 15(1):
"Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation."
Biological resources therefore have a legal guardian, the State, and every collector must follow the law of that State.
Three objectives of the Convention
The Convention pursues three goals together:
- Conservation of biodiversity.
- Sustainable use of biodiversity.
- Fair and equitable sharing of the benefits of genetic resources.
The Biological Diversity Act, 2002
India answered the Convention with the Biological Diversity Act, 2002. The Act creates a three-tier structure, like a three storey building.
| Level | Body | Position |
|---|---|---|
| Top floor | National Biodiversity Authority | National level, located at Chennai |
| Middle floor | State Biodiversity Boards | State level |
| Ground floor | Biodiversity Management Committees | Local level, closest to the forest |
Biopiracy and Section 6
Biopiracy means taking a country's biological resources or a community's knowledge and commercialising them, often through patents, without permission and without sharing benefits.
The Act stops biopiracy at the patent office door through Section 6. It covers any invention based on a biological resource accessed from India, or on knowledge associated with such a resource.
| Who applies | What Section 6 requires |
|---|---|
| Foreigners, non-resident Indians, and foreign or foreign-controlled companies | Prior approval of the National Biodiversity Authority before any intellectual property right is granted to them, in India or abroad |
| Indian applicants | Registration with the Authority before the grant, and approval of the Authority when they commercialise |
While approving, the Authority can impose:
- a benefit sharing fee;
- a royalty; or
- other conditions.
Benefit sharing in practice: the Kani model
In the late 1980s, the Kani tribe of Kerala showed scientists a forest plant, Arogyapacha, which they ate for energy on long treks. It became a herbal medicine called Jeevani. When the formula was licensed to a company in 1995, the licence fee and royalty were shared equally with the Kani people, who formed a trust to receive them.
This arrangement came before the Act, yet it reflects the fairness the Act now demands.
Threatened species: Section 38
The Act also protects species. Under Section 38, the Central Government, in consultation with the State Government:
- can notify a species on the verge of extinction as a threatened species;
- can prohibit or regulate its collection; and
- can take steps to rehabilitate and preserve it.
Penalties after the 2023 amendment: Section 55
The Biological Diversity (Amendment) Act, 2023, in force from 1 April 2024, decriminalised violations of the Act. Violations now attract a monetary penalty instead.
Under Section 55, breaking the rules on access, transfer of research results, intellectual property rights or prior intimation attracts a penalty:
- not less than 1 lakh rupees, which may extend to 50 lakh rupees;
- where the damage caused is greater, the penalty must be commensurate with the damage;
- a continuing breach can attract an additional penalty of up to 1 crore rupees.
Plant varieties and farmers' rights: the field
A seed is an unusual invention because it copies itself. The question is whether it should be patented like a machine.
TRIPS Agreement: Article 27(3)(b)
The TRIPS Agreement leaves the choice to each country. Under Article 27(3)(b), members may exclude from patentability:
"plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof."
So a member may keep plants and animals out of patent law, but plant varieties must still be protected in one of three ways:
- by patents;
- by an effective sui generis system; or
- by any combination of the two.
Sui generis system
Sui generis is Latin for "of its own kind". A sui generis law is a law made specially for one subject.
Think of a ready-made suit and a tailor-made suit. Patent law is the ready-made suit, cut for machines and chemicals. A sui generis law is the tailor-made suit, made for one subject.
| Patent law | Sui generis law |
|---|---|
| Ready-made suit | Tailor-made suit |
| Cut for machines and chemicals | Made for one particular subject |
India chose the tailor. Under Section 3(j) of the Patents Act, 1970, plants, including seeds, varieties and species, are not inventions at all.
UPOV
The best known sui generis model is UPOV, the International Union for the Protection of New Varieties of Plants, named by its French initials.
- Its Convention was adopted in Paris in 1961.
- It protects plant breeders so that they keep developing new varieties.
India's law protects breeders in a similar way, but it adds strong rights for farmers.
The Protection of Plant Varieties and Farmers' Rights Act, 2001
Registration of a new variety: Section 15(1)
"A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability."
The four criteria are:
- Novelty: the seed or harvest was not sold for exploitation within the time limits given below, counted back from the date of the application.
- Distinctiveness: the variety is clearly different from every known variety in at least one essential characteristic.
- Uniformity: the plants are alike.
- Stability: the plants stay the same after repeated propagation.
| Where sold | Novelty is lost if sold for exploitation more than |
|---|---|
| In India | 1 year before the application |
| Abroad: trees and vines | 6 years before the application |
| Abroad: other crops | 4 years before the application |
Breeder's rights: Section 28
Once a variety is registered, Section 28 gives the breeder the exclusive right to:
- produce,
- sell,
- market,
- distribute,
- import, or
- export the variety.
Farmers' rights: Section 39
The farmer is not pushed aside. Section 39(1)(iv) declares:
"a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act."
The Explanation defines "branded seed" as:
"any seed put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected under this Act."
| A farmer may (even with a protected variety) | A farmer may not |
|---|---|
| Save, use, sow, resow, exchange, share or sell farm produce, including seed, as before the Act | Sell branded seed of a protected variety, that is, seed packed or labelled to show it is of a protected variety |
The same Section gives farmers further rights:
- Farmers can register varieties they breed.
- Farmers whose conserved land races donate genes to registrable varieties are rewarded from the Gene Fund.
- Farmers can claim compensation before the Authority if seed fails to perform as the breeder disclosed.
Traditional knowledge: the village
Two biopiracy battles
The turmeric patent (1995 to 1997): In 1995, the United States Patent and Trademark Office granted the University of Mississippi Medical Center a patent on using turmeric to heal wounds. In 1996, India's Council of Scientific and Industrial Research (CSIR) sought a re-examination and produced 32 prior art references, many in Sanskrit, Urdu and Hindi. The patent holder argued that it had claimed turmeric powder, while the old texts spoke of a paste.
Held: the office rejected that argument and held the claims anticipated and obvious. The patent was revoked in 1997. Principle: a use already recorded in prior art is anticipated and obvious, and describing the paste as a powder does not make it new.
Prior art means everything already known to the public before the claimed invention.
The neem patent (1994 to 2005): In 1994, the European Patent Office granted the United States Department of Agriculture and the company W. R. Grace a patent on controlling fungi on plants with an extract of neem oil. An opposition followed from a group that included the research foundation of the Indian environmentalist Vandana Shiva.
Held: the patent was revoked in 2000, and in 2005 the Board of Appeal confirmed the revocation, holding that the method lacked an inventive step.
Why such patents were granted
Both patents fell, but each fight took years. Such patents got through because knowledge kept in palm-leaf manuscripts, Sanskrit verses or simple memory was invisible to an examiner abroad.
Invisible knowledge looks new. This invisibility problem is what both Indian patent law and the Traditional Knowledge Digital Library try to solve.
The international duty: Article 8(j) of the Convention
The international duty to respect traditional knowledge sits in Article 8 of the Convention on Biological Diversity. It opens with the words "Each Contracting Party shall, as far as possible and as appropriate:", and clause (j) continues:
"Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices."
Article 8(j) thus places three duties on States:
- Respect the knowledge.
- Use it only with the approval and involvement of its holders.
- Share the benefits.
Meaning of traditional knowledge
WIPO describes traditional knowledge as know-how, skills and practices that a community develops, sustains and passes on from generation to generation, often as part of its identity.
The fisherman who reads the colour of the sea before a storm, and the hill farmer who knows which millet survives a dry year, both hold traditional knowledge.
In India, traditional knowledge also lives in organised systems such as Ayurveda, Yoga, Unani and the Siddha system of Tamil Nadu.
How Indian patent law answers the invisibility problem
Indian patent law protects traditional knowledge in three ways.
1. Section 3(p): traditional knowledge is not an invention
Under Section 3(p) of the Patents Act, 1970, the following is not an invention:
"an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components."
2. Disclosure of source and geographical origin
An applicant must disclose the source and geographical origin of any biological material used. A missing or wrong disclosure is a ground of opposition.
3. Section 25: opposition on the basis of community knowledge
Under Section 25, any person may oppose an application on the ground:
"that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere".
Note the words "oral or otherwise" in Section 25. A village practice can defeat a patent even if nobody ever wrote it down.
The kilta case
These rules decided a real case in the Himachal Pradesh High Court, which is the third problem.
Dhanpat Seth v. Nilkamal Plastic Crates Limited (Himachal Pradesh High Court): The plaintiffs held a patent for a device for manually hauling agricultural produce: a cone-shaped plastic carrier with perforated walls and adjustable nylon straps with buckles. They sued Nilkamal for making and selling a similar product and asked for an injunction. They argued that the device was a real improvement, being lighter and resting on the shoulders instead of the forehead. Nilkamal replied that there was no novelty and no inventive step, because the change would be obvious to any skilled person. The device, it said, was simply the kilta, the conical bamboo basket used for generations in the hills of Himachal Pradesh to carry produce, now made of plastic.
Issue: whether a new material and adjustable straps could turn a traditional product into an invention.
Held: In 2006, a single judge refused the interim injunction. In 2007, a Division Bench dismissed the appeal. It observed that the kilta had been used since time immemorial in the hill areas; synthetic polymer instead of bamboo was not an inventive step; buckles did not make an invention; and traditional kiltas were usually carried with ropes over the shoulders anyway. The Bench added that the mere grant of a patent does not by itself entitle the holder to an injunction. In 2018, the High Court dismissed the suit and allowed Nilkamal's counter-claim for revocation under Section 64. The patent was revoked as traditional knowledge under Section 3(p), and for lack of an inventive step.
Principle: a new material does not make an old idea new.
Injunction: a court order stopping the defendant from doing something.
Counter-claim: the defendant's own claim made within the same suit. In the kilta case, Nilkamal used it to seek revocation of the patent under Section 64.
Grant is not enough: the mere grant of a patent does not by itself entitle the holder to an injunction.
Traditional Knowledge Digital Library (TKDL)
Courts act only after the damage is done. India's preventive answer is the Traditional Knowledge Digital Library.
Think of the TKDL as a date-stamped photograph. It proves the scene existed earlier, without making anyone its owner.
- Started: 2001.
- Joint project of: CSIR and what is now the Ministry of Ayush. The name Ayush is formed from Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy.
- Contents: knowledge from classical texts of Ayurveda, Unani, Siddha and Yoga, set out in more than 34 million pages.
- Languages: English, French, German, Japanese and Spanish, the languages patent examiners read.
- Use: patent offices, beginning with the European Patent Office in 2009, now search it. Several applications based on Indian traditional knowledge have been withdrawn or refused.
The TKDL is defensive protection. It blocks wrong patents but gives nobody ownership or royalty.
WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (2024)
The world is moving in the same direction. In May 2024, WIPO adopted a Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.
- When a claimed invention is based on genetic resources or associated traditional knowledge, the applicant must disclose their country of origin, or the indigenous people or local community that provided the knowledge.
- The Treaty comes into force three months after 15 countries ratify or accede to it.
Quick revision
- Problem 1 (the herb): The foreign cosmetics company needs the prior approval of the National Biodiversity Authority before any patent is granted, can be made to share benefits, and its patent can be challenged, as the neem patent was, if the cream merely repeats the community's knowledge.
- Problem 2 (the seed): Renu is no infringer. She crosses the line only if she sells branded seed of the protected variety.
- Problem 3 (the basket): An old idea in a new material is still an old idea, as the kilta case shows.
- Forest, field and village: each now has a legal guardian.
