The world wide economic integration by the GATT and the TRIPs opened the mind of the national and international policy markers to protect their bio-diversity from the free access and bio-privacy. The Biological Diversity Act 2002, The Protection of Plant Varieties and Farmers' Rights Act, 2001 and The Patent Act 1970 as amended by the Patents (Amendment) Act 2005 in India have not realized the menance of bio-privacy, 're-colonization in the making', 'global village global tillage' and the offspring of WTO.
India is a signatory of WTO and TRIPs and The Patent Act of India is being influenced by the TRIPs. Section 3 of the Patent Act, 1970 deals with the concept of what are not inventions. Sub-Section (j) of section 3 as added by Act 38 of 2002, sec. 4 (w.e.f. 20.05.2003) says:
"Plants and animals in whole or any part thereof other than micro-organism sent including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals."
Article 27(3)(b) of the TRIPs says:
"Parties may exclude from patentability plants and animals other than micro-organism, and essentially biological process for the production of plants or animals other than non-biological and microbiological process. However, parties shall provide for the protection of plant varieties or any effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of this agreement."
According to the Indian Patent Act, the geographical origin or the anticipation of the invention in local or indigenous knowledge constitute grounds for opposition or revoking a patent. Section 25 of the Patent Act 1970 says about the opposition of the patent. Sub-section (j) and (k) of see 25 runs as under:
See 25 (j) "that the complete specification does not disclose or wrongly mentions the source or the geographical origin of the biological material used for invention."
See 25(k) "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,…."
Section 64 of the Patent Act, 1970 deals with revocation of patents. See 64(p) and (q) has been inserted by Act 38 of 2002, see 31 (w.e.f. 20.05.2003) which are the repetition of section 25(j) and (k).
The current international framework of the intellectual property law favours for the investment protection and the commercial exploitation of the biological resources and the related knowledge.
It is important to emphasized the Article 27(3)(b) of the TRIPs to protect the indigenous knowledge by a wide interpretation. International Union for Protection of New Varieties of Plants or UPOV deals with the concept of the protection of plant varieties grant of exclusive property right to the plant breeders on the basis of distinct, uniform and stable for the appropriation of biological resources and related knowledge but it does not recognize farmers as a breeders. The main philosophy of UPOV is to protect the interest of the corporate biotechnology and powerful seed companies.
At the present scenario to protect the threat of bio-privacy it is needed in India to evolve its own the generis system on community intellectual rights of farmers and not to follow the UPOV nodal.
The legislature with the objective of incentive to breeders and motivation of private sector for the development of the new varieties of plants recognized the right of the plant breeders and included farmers as breeders in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. The present law is being rectified by providing farmers right at equal footing of the breeder but the main problem lies on the fact that the farmers can not easily obtain property right, benefit sharing on the financial compensation and the intellectual contribution not taken into account.
The Bio-diversity policy broadly encapsulates survey of bio-diversity, national data base, in situ and ex situ conservation, sustainable utilization, indigenous knowledge system, benefit sharing, people participation, international cooperation, research, education, training and extension. Failing in line with B.D. Policy, the Bio-diversity conservation Bill entail information sharing system, chronicling and documentation of bio-wealth, farmers and breeders right is tantamount to CBD – but the grey area of it is about the silence of conservation and sustainable use of biological resource. Another point is that the farmers have no right to allocation of property right.
The fundamental objectives of CBD are – (1) conservation of biological diversity (2) sustainable use of biological diversity and (3) right to sovereignty and equitable sharing of benefit among the indigenous community. The main problem of India is that CBD is directly learned by WTO and TRIPs on the binding character of the treaty to a country.
TRIPs provides for the IPR protection on the basis of monopoly and capitalistic approaches for the patent holders. The effective sui generis under the TRIPs indicate only the patent protection.
Our legislature should, therefore, refurbish the IPR regime over biological resources including the plant variety protection under the paramount consideration of human right to food, health, environment and socio-economic complexities and peculiarities of the country tune with global integral relation, monetary balance, free and fair trade to achieve, "the greatest good of the greatest number."
Sk Jahangir Ali