CHAPTER V NATIONAL LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL KNOWLEDGE

Transcription

1 CHAPTER V NATIONAL LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL KNOWLEDGE

2 CHAPTER-5 NATIONAL LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL KNOWLEDGE This chapter is divided under three major divisions namely the Indian Patent Act, 1970, the Protection of plant varieties and farmer rights Act, 2001 and Biological Diversity Act, PATENT ACT, 1970 HISTORICAL BACKGROUND ANCIENT ERA Our Indian civilization is not only popular for its cultural aspects but also for knowhow technology and others. As it has been rightly stated by one of the Jurist that, Intellectual property rights owes its origin from hunter gathering stage onwards. This is hundred percent true as for as Indian knowledge is concerned PREVALENCE OF IPR DURING INDUS VALLEY CIVILIZATION Evidence shows that the activities of town planning, entertainment industries, musical industry and others were highly prevailing from the Indus valley civilization onwards and it is also very clear that trademarks have also been used to differentiate the products of the producers from one from another. Of course patent might not have been available. IPR IN VEDAS There is a famous saying in Rig Veda 1 known as nase thesu talks about natural, diagnostic, therapeutic methods for human treatment. The concept of knowledge of power has been realized in the Vedic era itself. The best example is Vishwamitra case. Sri Vishwamitra happens to be the author of Gayathri Mantra 2. Evidence shows that he was the first ever kshatriya and non Brahmin to acquire highest intellectual capacity. Fortunately or unfortunately 1 First among the four Vedas. 2 3 rd mandala, Rig veda 251

3 this happens to be the monopoly of the Brahmins during those days. Acknowledging his highest knowledge he has been elevated as a Brahmin. IPR IN SANGAM AGE 3 The Thirukural contains lot of aspects relating to IP 4. Almost all the poets, artisans, technocrats and physicians, scientists and others have being protected by the king through moral, legal and financial assistance. Lot of books has being complied 5 during this era. MODERN ERA It is the British Empire which is responsible for the introduction, establishment, maintenance, development of the modern IPR system which we follow nowadays. The hundred percent credits go to Lord Curzon, because during his ruling only the first ever acts for patents and designs have been used in India is not only politically and economically sensitive in the Indian history but also it assumes greater significance in the Indian intellectual property rights. POST INDEPENDENT ERA RECOGNITION OF IPR BY INDIAN CONSTITUTION Our Indian constitution permits mixed economy system. That is why the preamble of the constitution itself recognizes the economic liberty as one of the most important liberty. This has been ensured through property system. The term property used in the Indian constitution is a wider one. Definitely, it will include intellectual property too. At the initial stage right to property has been treated as a fundamental right 6. In subsequent stages it has been deleted through an amendment, but any how still now the right to property is being treated as a constitutional right by virtue of Art: 300A of Indian constitution. At the same time certain special rights have been given in the case of minorities by virtue of Art: 31. It should be noted that art 300A provides constitutional safeguards against unlawful deprivation of property. 3 Sangam Age refers to the golden period of Tamils where literature, Culture and state development occurred in the present south Indian states, between 2 nd Century BC to 2 nd Century AD. 4 Refer the Chapters in Thirukural relating to Education, Wealth, Knowledge and Wisdom 5 The compiled versions would include Ettuthogai an Pathupattu in Tamil 6 Art 19(f) Indian constitution 252

4 The relevant provision of Art 300A reads as follows No person shall be deprived of his property save by authority of law. This article that is art; 300A has replaced art; 19(f) which guaranteed right to property as a fundamental right. This has been done by way of 44 th amendment. 7 JUDICIAL INTERPRETATION For the first time the Hon ble supreme court of India has interpreted that the word property used in the Indian constitution is a wider one that will include intellectual property too. This has been held in R.C.Cooper Vs Union of India 8 popularly known as Bank nationalization case. This may discuss detailed on the later part of this chapter. PROVISIONS OF INDIAN CONSTITUTION Art; 5, Art; 253 are all important recognizing the international aspect of intellectual property. The former one mandates the state to respect the international treaties and obligations and the later one empowers the Hon ble parliament of India to enforce the treaties through law making process. Art 372 There are certain provisions in Art 372 which have validated the pre constitutional law subject to certain conditions laid down in the provisions. Relevant part of Art 372 reads as follows: Notwithstanding the repeal by this constitution of the enactments referred to in Article: 395 but subject to the other provisions of this constitution, all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein 7 With effect from AIR 1970 SC567 : (1970) 1 SCJ564: (1970)2 SCA:

5 until altered or repealed or amended by a competent legislature or other competent authority 9 under the said clause. It is this provision particularly the word all the laws immediately before the commencement of the constitution shall continue in force have made it possible the pre constitutional IPR laws to be in force. Since the same provision has authorized the appropriate legislature or competent body to repeal, alter or amend the pre constitutional laws. The Hon ble parliament of India has decided to repeal or amend lot of pre-constitutional intellectual property laws in order to make them constitutionally feasible one among such a bold step is repeating of the 1911 Patent Act and the passage of new Patent Act ENTRIES IN THE INDIAN CONSTITUTION Entry 12, 13, 14 have been placed under List I. Majority of present intellectual property laws including the patent law have been largely influenced by international law, example our present patent laws is the net result of various international instruments such as patent cooperation treaty, Budapest treaty, TRIPS agreement of WTO, UPOV,UN convention on Biodiversity and others. This has been effectively incorporated into Indian patent legal system by virtue of powers enunciated in the aforesaid entries. SPECIFIC ENTRY RELATING TO INTELLECTUAL PROPERTY Entry 49 of List I happens to be the specific one which has been totally and exclusively devoted to intellectual property system. Entry 49 It recognizes only patents designs, copyright, trademarks and others. It does not recognize the concept of traditional knowledge, biodiversity, geographical indications and others. But one may argue that, these categories of intellectual property rights can be included within the existing one. Besides which entry 97 is also there which gives necessary powers to the central government to enact necessary laws by exercising its residual powers. 9 Article: 372 clause: 1 of Constitution of India. 10 Act no:39 of

6 Entry 97 of List I reads as follows any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists. Article: 248 read as follows. (1).parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent List or State List. POST LIBERALIZATION ERA During 1990s the true liberalization of Indian economy has been started by the then prime minister Shri P.V Narashimarao. It should be noted one of his major achievement is the signing of GATT 1994 and initiation of look east policy ; of course, it was one of the formidable task and most challenging one in his carrier. He has made a paradoxical shift in the economic and foreign policy issues without amending the constitution. He made it possible the smooth switching over of our Indian economy to a market oriented one from a socialistic one. This has lead to stiff opposition such as the left parties and BJP but also from his own colleagues. INDIAN PATENT ACT-AN ANALYTICAL OUTLOOK LEGISLATIVE HISTORY The first ever Act has been made upon this subject is known as Indian Patents and Designs Act, during the British regime. After the independence, the constitution of India came into effect 12. It has made far reaching impact in much legislation. The constitution of India assures various freedom and also socio economic justice 13 in the form of Fundamental Rights 14 and Directive Principles of state Policy. 15 It promotes mixed economy. It mandates the objective of welfare state concept. The first industrial policy of free India has been framed by Shri.Jawaharlal Nehru has given major thrust to the socialism. This has been reflected the Indian patens Act too. The Indian patent and Designs Act, has been amended in Act no.2 of With effect from Preamble of Indian constitution 14 Part III Art:12to35 of Indian Constitution 15 Part IV Art 36to 51 of Indian Constituion 16 Act no:44 of

7 It should be noted that a committee has been constituted to suggest appropriate reforms to make the Indian Patent Act more incentive oriented one, to develop technology. Accordingly a major shift has been taken place in the Indian patent legal history in the year It should be noted that the Patent Act totally separated from the Designs Act. Corresponding provisions less than 1911 has been repealed. It is a well known fact that India is founder member of GATT. The Uruguay round of GATT negotiation 17 has given birth of WTO. India too has become one of the original members of WTO 18.In pursuance of the obligations arising out of the agreement India has carried out three major amendments in the Indian Patent Act, , , and It should be noted that an expert committee has been constituted to suggest further reforms in the Indian Patent Act. Its report is awaited. MEANING OF PATENT Patent is a grant or right to exclude others from making, using or selling ones invention and includes right to license others to make, use or sell it. It is an official document conferring a right or privilege, letters patent writing securing to an inventor for a term of years, the exclusive right to make, use and sell the invention the monopoly or right so granted 22 STATUTORY DEFINITION It does not define what is patent exhaustively; it simply says Patent means patent for any invention granted under this Act 23. It also defines what patented article is and patented process in the same manner. The relevant provisions of the Act read as follows th round from Art 11 of WTO agreement 19 India has carried amendment thrice 1999, 2002 & 2005.First two amendments have been inserted in Patent Act by virtue of compromise reached between India and US before the DSB of WTO in pursuance of the case filed by US against India in WTO. Refer 20 Act no:138 of Act no. 15of Webster s ninth new collegiate dictionary 23 Section ;2(m) of Indian Patents Act,

8 Patented article and patented process mean respectively an article or process in respect of which a patent is in force. 24 IMPORTANT DEFINITIONS UNDER THIS ACT It is a well known fact that patent is available only for inventions and not for discoveries. It is important to understand the term what is invention and what is not invention for the purposes of obtaining patents. Invention means a new product or process involving an inventive step and capable of industrial application; 25 The Act not only defines invention but also defines what new invention, new invention means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art; 26 It should be noted that the pharmaceutical sector plays a major role in the knowledge economy in order to boost up the developments to the pharmaceutical industries. The Act gives specific attention by defining what pharmaceutical substance is, Pharmaceutical substance means any new entity involving one or more inventive steps 27 SUBJECT MATTER OF PATENTS The Patent Act clearly prescribes what all are not patentable subject matters. It has devoted the entire section. The Act clearly enunciates around 16 circumstances under which the inventions are not patentable Ibid, Section;2(o) 25 Ibid, Section;2(j) 26 Ibid, Section ;2(l) 27 Ibid, Section;2(ia) 28 Ibid, Section :3(a-p) 257

9 The following are not patentable subject matter, they are as follows 1. any invention which runs against well established natural law, example-cloning any invention which offence morality, public policy,invention causes serious prejudice to the environment, health & others Any invention which is arising out of duplication of known components, admixture of known components or substance, mere new use of known reactants are not patentable Any invention which involves a new agriculture or horticulture or cultivation method is not patentable Inventions relating to surgical, diagnostic, prophylactic, diagnostic and therapeutic methods useful to the treatment of human and others Anything which is essentially of biological origin, example-parts of plants, and parts of animal bodies cannot be patented Computer programs, algorithms, mathematical concepts, business method are not patentable Anything which is copyrightable cannot be patented, example musical works, cinematography and others Any invention which is arising out of Traditional Knowledge cannot be patented 37. SECURITY EXCEPTION a. inventions relating to atomic energy not patentable 38 b. any invention which may likely to cause problem to the security of India is not patentable 39 PROCEDURE FOR OBTAINING PATENT This can be studied under two headings: 29 Ibid, Section:3(a) 30 Ibid, Section:3(b) 31 Ibid, Section :3(h k) 32 Ibid, Section:3(h) 33 Ibid, Section:3(i) 34 Ibid, Section:3(j) 35 Ibid, Section:3(k) 36 Ibid, Section:3(l) 37 Ibid, Section:3(p) 38 Ibid, Section:4 39 Ibid, Section:35 & section :157A 258

10 One is Ordinary applications 40 and another is International applications 41 WHO CAN APPLY FOR PATENT Any person can apply for the patent provided if the following conditions are satisfied: 1. True investor 2. True inventor 3. Assignee 4. Legal representatives It can be done individually as well as jointly 42. It should be noted the word person 43 includes artificial as well as juridical persons too. The application must filed in the duly prescribe format. 44 INFORMATION TO BE FURNISHED The applicant should provide necessary information to the controller in support of his application which includes the following 1. Information relating to genetic material used 2. Its geographical origin 3. Working out the mode of invention 4. The best mode of performance of his invention 5. Priority date and others. 40 Ibid, Section: Ibid, Sections: Ibid, Section:6 43 Ibid, Section:2(s) 44 Ibid, Section: 7 259

11 SPECIFICATION The application should accompany the specification for the invention claimed. There are two types of specification. 1. Provisional specification 2. Complete specification, Complete specification should be filed within a period of one year from the filing date of the provisional specification, unless the time has been extended by the controller. 45 CONTENTS OF SPECIFICATION The contents of specification shall include the following: 1. Drawings 2. Pictures 3. Specimens 4. Photographs 5. Samples 6. Models 7. Deposit of biological /genetic materials Title 9. Descriptions 10. Claims 45 Ibid, Section:9 46 Ibid, Section:10 260

12 OTHER PROCEDURES Every applicant should make a request for examination. After that the application will be investigated and examined by the patent examiner at the direction of the controller and the examiner should make a thorough search. Thereafter he will forward a report to the controller. Based upon that the controller will decide whether to grant the patent or not. If the examiner has given an adverse report the controller should provide an opportunity to hear the applicant. After that it will be duly published. 47 EXCLUSIVE MARKETING RIGHTS (EMR) This has been made available as an interim measure 48 for the applicants, but this has been deleted 49 by It should be noted that Section. 5 have been deleted 50 from so as to enable the applicant to get full-fledged patent rather than exclusive marketing rights. OPPOSITION PROCEEDINGS It is to be noted that there are two types of opposition proceedings One is pre grant 51 opposition and another is post grant opposition. 52 GROUNDS OF OPPOSITION The patent can be opposed on the following grounds: 1. The subject matter of the invention is not at all a patentable one. 2. It is a duplication of Traditional knowledge 3. The specification did not disclose the best mode of the performance of the invention. 4. The geographical origin of the biological/genetic material has been wrongly disclosed 5. the applicant has suppressed the material information s 6. The applicant did not disclose the information relation to the foreign correspondence Ibid, Section: 11a Ibid, Section:24A-F 49 Ibid, 2005 Amendment 50 Ibid, 2005 Amendment. 51 Ibid, Sections: Ibid, Sections: Ibid, Section:

13 AUTHORITIES FUNCTIONING UNDER THIS ACT This can be studied under three major headings 1. Administrative authority 2. Quasi judicial authority 3. Judicial authority ADMINISTRATIVE AUTHORITY Controller general is the top most official in the patent office. He performs various functions including administrative and quasi judicial functions. 54 EXAMINER He has to examine and investigate the application and also make the necessary search. He functions under the control of controller. 55 OTHER OFFICIALS PATENT AGENT He is a non government official. He can file all the documents on behalf of the applicant. He can represent the matter before the controller. He should have registered himself as a patent agent duly under this Act. 56 QUASI JUDICIAL AUTHORITY INTELLECTUAL PROPERTY APPELLATE BOARD (IPAB) The IPAB shares concurrent jurisdiction with the High court. As of now the appellate board tries the cases relating to only patents and Trademarks. It is a national level tribunal, 54 Ibid, Section: Ibid, Section: Ibid, Section:

14 functions in Chennai as headquarters. It has five circuit benches including the metropolitan city of Ahmadabad. COMPOSITION It has a chairman, vice chairman and other members. It has both law members as well as technical members. 57 SCIENTIFIC ADVISOR The scientific advisors are being appointed to assist the High court in the scientific and technical affairs of the case. He can provide only scientific and technical opinion and not legal opinion. He should attend the court whenever his services required. He will be paid necessary allowances. 58 RIGHTS OF THE PATENTEE The Act empowers the patentee to enjoy the following rights 1. Right to assign 2. Right to conclude licensing contracts. 3. Exclusive right to deal with the products as well as process in respect of his patented articles. 59 CONDITIONS FOR GRANT OF PATENT The patent is subject to the following conditions; The patented article or process can be used for the Government for its own purpose It should be made available freely to the research and teaching activities The patented medicines can be used for the health delivery facilities in any dispensary wholly or partially maintained by the government Section: 116A of Indian patents act, & Section 84 of Trademarks Act Section: 115 of Indian Patents Act, Ibid, Section

15 REMEDIES AVAILABLE FOR THE INFRINGEMENT CIVIL REMEDIES It provides the following civil remedies: 1. Right to get Injunction (both interim and perpetual) 2. Damages based on Accounts of profits 3. Double damages 4. Compensation. CRIMINAL REMEDIES The act prescribes various offences, example-wrongful use of the word patented article, practicing of non registered agents and offences by company and others. It also lays down imprisonment as a punishment. The term of imprisonment varies for different offences. It ranges from minimum of 6 months to maximum of 2 years. It imposes heavy penalty, example-maximum up to 5 lakhs 61. RIGHTS OF THE GOVERNMENT The Act empowers the central government to use any of the patented articles for its own use, for the usage of public non commercial purposes to improve the public health and also it empower the central government for the acquisition of patent in the national interest 62. The Act empowers the central government to sell, revoke forfeited patented articles. 63 The Act empowers the government of India to take necessary action for inventions/patents involving security interest Ibid, Section: Ibid, section: Ibid, Section:100 to Ibid, Section: Ibid, Section: 35 &section: 157A. 264

16 5.2 THE PROTECTION OF PLANT VARIETIES AND THE FARMERS RIGHTS ACT Historically speaking agricultural sector happened to be the dominant sector in the global economy right from the ancient times on wards. The Indian economy too is not exception to this. It enjoyed greater patronage from the kings at the various ages and stages in the history. CONSTITUTIONAL PROTECTION The constitutional framers have rightly got the first hand experience about the ill-treatment and the evil committed by the then British Government to the farmers. They have taken several steps and initiatives so as to undo the evils committed by the Britishers. The constitutional framers of India have made available a number of special safeguard measures so as to protect and promote the interests of the farmers in order to encourage the accelerated growth of the agricultural sector which will ultimately result into the overall growth of the Indian economy which includes the tax incentives in the form of exemption to agricultural income from the income tax and capital gains for the transfer of agricultural property under income tax act 1961, 65 exemption of Wealth Tax Act The agricultural sector has received major thrust in the successive five year planning 66 adopted by the Union as well as the State Governments which includes support from planned as well as non-planned expenditure, subsidies for the power, irrigation, fertilizers and quality seeds. The Government of India has recently launched an ambitious programme known as the National Rural Agricultural Development Mission 67. The Constitution of India provides the necessary safeguard to protect the right to property in general and the agricultural property in particular 68. The Directive principles of State Policy embodied in the Constitution of India provides specific mandate to the State to ensure that the agricultural workers are able secure at least the minimum, decent and living wage. It also mandates the state to take necessary steps to modernize the agricultural practices on the scientific lines without diluting the traditional practices such as the concept of organic farming. It is interesting to note that the Constitution of India provides the specific 65 S. 2.(1) (A) of the Income Tax Act 1961, defines the term agricultural income and the Section 10 of the afore said act provides the exemption to the agricultural income. 66 A.N.Agarwal, Indian Economy, 32 nd Edition, New Age International Publishers Article 300A and Article 31A. 265

17 protection to the animal husbandry other related allied sectors of the agriculture 69. The Government of India has constituted the National Agricultural Commission and the National Prize Commission of Agricultural goods so as to carry out the above stated constitutional mandate. LEGISLATIVE HISTORY The globalization has made far reaching impact almost in all the fields of the Indian economy the agricultural sector too is not an exception to this. The present Indian law relating to the Protection of Plant Varieties and Farmers Rights Act is shaped by the happening in the three different international forum that is the International Convention for the protection of plant varieties 1961, in general and the 1978 and 1991 acts of the UPOV Convention, The International Treaty source of Food and Agricultural Organization hear and after (ITPGR) and the WTO in general and the Article 27.(3)(b) of the TRIPS Agreement in particular. The National Bureau on Plant and Genetic Resource has been constituted. The Indian Parliament has passed the Protection of Plant Varieties and Farmers Rights Act of 2001 a few days ago prior to the adoption of the ITPGR by the FAO. THE OBJECTS OF THE ACT The Act embodies the following objects. They are, The establishment of an effective system for the protection of the plant varieties, the protection of the rights of the farmers and the breeders, recognition of the contribution farmers in conserving and improving the plant genetic resource, stimulate the investment to promote the research and development in the public and the private sectors so as to make available the quality seeds to the farmers, thereby encouraging the accelerated growth of the agricultural sector and to carry out the obligation arising out of the TRIPS Agreement of WTO. 70 DEFINITIONS It is highly desirable to understand some of the significant definitions of the Act so as to appreciate the efforts taken by the Indian Parliament in order to protect, promote and enforce the 69 Article 48 of Constitution of India. 70 Refer the preamble of the Protection of Plant Varieties and the Farmers Rights Act

18 rights of the farmers as well as the breeders and ensuring the enjoyment of the farmer s privilege by the farmers through the legal protection. The act defines various terms some of them are totally new, certain terms have adopted from the ITPGR and the UPOV Convention in certain cases the Indian Parliament has rightly balanced the interests of the two competing groups that is the farmers and the breeders by making the necessary modifications and combining the elements embodied in the different international instruments that is the ITPGR and the UPOV convention. For example the term breeder defined by the Act, which includes the farmers also. It rightly promotes the objects of the TRIPS Agreement, The UPOV Convention and the ITPGR. The relevant part of the Act reads as follows breeder" means a person or group of persons or a farmer or group of farmers or any institution which has bred, evolved or developed any variety 71. The Act defines the term farmer in the following words (k) "farmer" means any person who-- (i) Cultivates crops by cultivating the land himself; or (ii) cultivates crops by directly supervising the cultivation of land through any other person; or (iii) conserves and preserves, severally or jointly, with any other person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties; 72 This is totally a new one the term has neither been defined by the ITPGR nor by the UPOV Convention even though both of them using the term farmers. 73 The term variety can be stated as the best example which fulfills the obligations of the TRIPS Agreement, 74 the UPOV Convention and the ITPGR in addition to this the Indian Parliament has made its own innovations so as to protect the interests of the farmers. The relevant part of the Act reads as follows 71 S. 2.(c) of the Plant Varieties and Farmers Rights act S. 2(k) of the Protection of the Plant Varieties and Farmers Rights Act Example the ITPGR uses the term in number of the provisions generally and in the Preamble and in the Article 9 specifically; Article 14 and 15 of the UPOV Convention also uses the term farmer specifically. 74 Article 27.3(b) of the TRIPS Agreement of the WTO provides the discretion to the member countries to exempt the micro organism from the patentability as well as from the plant variety protection India has rightly exercised discretion by excluding the micro organism from the patentability under Section 3 of the patent Act and from the protection of plant varieties by defining the variety which rightly excludes the micro organism under Section 2(za) of the Protection of Plant Varieties and the Farmers Rights Act

19 "variety" means a plant grouping except micro organism within a single botanical tax on of the lowest known rank, which can be (i) defined by the expression of the characteristics resulting from a given genotype of that plant grouping; (ii) distinguished from any other plant grouping by expression of at least one of the said characteristics; and (iii) considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation, and includes propagating material of such variety, extant variety, transgenic variety, farmers' variety and essentially derived variety 75 The Act provides an inclusive definition to the term variety exact the terms extant variety and the farmer s variety others have been adopted from the UPOV Convention the term extant variety is a wider which includes the farmer s variety where as the term farmer s variety is a narrower one which does not include the extant variety the Act defines the term farmer s variety in the following words "farmers' variety" means a variety which-- (i) (ii) has been traditionally cultivated and evolved by the farmers in their fields, or. is a wild relative or land race of a variety about which the farmers possess the common knowledge; 76 The Act provides an important definition for the term benefit sharing which is crucial without which the it will be impracticable to enforce the important object of the farmers rights. The relevant part of the Act reads as follows "benefit sharing", in relation to a variety, means such proportion of the benefit accruing to a breeder of such variety or such proportion of the benefit accruing to the breeder from an agent or a licensee of such variety, as the case may be, for which a claimant shall be entitled as determined by the Authority under section S.2(za) of the Protection of the Plant Varieties and Farmers rights Act S. 2(l) of the Protection of the Plant Varieties and the Farmers Rights Act S. 2(b) of the Protection of the Plant Varieties and the Farmers Rights Act

20 MEASURES RELATING TO THE PROTECTION OF THE TRADITIONAL KNOWLEDGE The Act has taken a number of steps for the protection of the traditional knowledge and for the prevention of the bio-piracy. They are as following the Act mandates the Central Government to nominate the representatives from the farmer s organizations and that of the tribal in the composition of the Protection of the Plant Varieties and the Farmers Authority of India; there by it promotes the concept participatory management in the governance of the plant variety regime. This will facilitate the protection of the traditional knowledge in general traditional agricultural knowledge in particular. The Act mandates the breeder/ applicant to disclose the contribution of the farmers and others in breeding, evolving, developing the genetic material and the parental material if any which has been used in the claimed invention by the applicant/ the breeder in the in the application which seeks protection under this Act at the time of filling of the application. 78 It also mandates the breeder to make a declaration that he has obtained the genetic material and the parental material used in the claimed invention lawfully the Act uses the words lawfully 79 it assumes more importance here in the context of protection of the traditional knowledge and the prevention of the bio-piracy the word lawfulness can be interpreted so as to include the concepts of the prier informed consent and the mutually agreed terms. This will be useful in preventing the bio-piracy. The Act makes very clear that the nondisclosure of the afore stated information per se has been declared as ground for the rejection of the application if the protection has been granted it will be revocation and forfeiture of the registration. the relevant part of the Act reads as follows breeder or other person making application for registration of any variety under Chapter III shall disclose in the application the information regarding the use of genetic material conserved by any tribal or rural families in the breeding or development of such variety, S. 18.2(e) of the Protection of the Plant Varieties and the Farmers Rights Act S. 18.2(h) of the Protection of the Plant Varieties and the Farmers Rights Act S. 40(1) of the Protection of the Plant Varieties and the Farmers Rights Act

21 If the breeder or such other person fails to disclose any information under subsection (1), the Registrar may, after being satisfied that the breeder or such person has willfully and knowingly concealed such information, reject the application for registration. 81 The Act clearly mandates the authority to collect the information and statistics which regard to contribution made any person at any time in India and to compile and to publish the same 82. There by the traditional knowledge can be protected and the bio-piracy can be prevented. Act does not use the term traditional knowledge but uses the words the contribution made the farmers at any time, 83 THE BENEFIT SHARING MECHANISM adds value to the wild species 84 and others. The Act does not define the term benefit but defines the term benefit sharing that is it simply lays down the mode of the benefit sharing the Act uses the term claimant but does not defines it. The Act does not state who is claimant but prescribes who can claim. The following persons are entitled to make the claim under this act they are, any person, group of persons, village community, any governmental institution and the nongovernmental institution and any associations provided the afore stated natural persons are the citizens of India and in the case of the juridical persons it should be registered in India 85 The provides only the monetary benefits to be shared with the farmers and the tribal 270 The so as to encourage and to promote the creativity and the conservation activities of the farmers and the tribal in making available the genetic resources for the development of new plant varieties that is why it uses the words amount of the benefit sharing. The word amount 86 clearly indicates, includes only the monetary benefit and excludes the non-monetary benefits in the benefit sharing mechanism envisaged by the Act. The Act channelizes the benefit sharing in the following three ways. Firstly, it mandates the authority to mandate the breeders to share the benefits arising out of the usage of the genetic material and the parental material and knowledge relating to such material by the breeders in their claimed invention. This benefit sharing is 81 S. 40(2) of the Protection of the Plant Varieties and the Farmers Rights Act S. 8.(2) (f) of the Protection of the Plant Varieties and the Farmers Rights Act The preamble, S39,S40 and S 41 of the Protection of the Plant Varieties and the Farmers Rights Act S. 2(k) of the Protection of the Plant Varieties and the Farmers Rights Act S. 26.(2) and the proviso to S 26.(2) of the Protection of the Plant Varieties and the Farmers Rights Act S. 26.(5),S 26.(7) and S 41 of the Protection of the Plant Varieties and the Farmers Rights Act 2001.

22 available for a maxim term of 18 years in the case of wine and trees and in the other cases for term of 15 years. This benefit sharing is based up on the criteria s 87 laid down under this Act as well as the conditions and terms to be imposed by the competent authority under this Act. Secondly the Act has created dedicated fund known as the National Gene Fund, 88 from which the farmers are entitled to receive the rewards for their contribution, conservation and other activities recognized by this Act. 89 Thirdly the Act mandates the competent authority to frame the suitable schemes for the purposes carrying out the provisions relating to the benefit sharing mechanism. 90 THE CONCEPT OF FARMERS PRIVILEGE The incorporation of the provisions relating to the farmers privileges/ farmers rights assumes more importance than ever before in the context of the globalization. The advent of the TRIPS 91 Agreement and the UPOV 92 Convention has severely threatened the very survival of the concept per se; however the UN based ITPGR 93 of the FAO strongly protects and bats. The protection is narrowed down in the EU countries. This will be discussed for the interests of the farmers in the international arena. The concept is getting eroded in toto in developed countries such as the US, Canada and others it is getting narrowed down in the EU countries. This will be discussed in detail later. It is interesting to note that the Act treats the farmers and the breeders on an equal footing with regard to the protection of intellectual property rights and traditional knowledge of the farmers on the same hand it provides several privileges to the farmers 94 such as exemption from the payment of the fees, 95 protection against innocent infringement 87 Section 25.(6) (a and b) of the Protection of Plant Varieties and the Farmers Rights Act 2001, mandates the competent authority to take the following elements in to the account in the process of the determining the benefit sharing they are: the extent and the nature of the use of the genetic material or parental material, involving the contribution of the claimant in the development of the variety, the commercial utility of the variety and the demand for the variety in the market and others. 88 S. 45 of the Protection of Plant Varieties and the Farmers Rights Act S 41 of the Protection of Plant Varieties and the Farmers Rights Act S. 46 of the Protection of the Plant Varieties and the Farmers Rights Act Article 27.(3) (b) of the TRIPS Agreement of the WTO ignores the interests of the farmers in toto Article 39, 70.(8) 70.(9) of the TRIPS Agreement uses the term agricultural goods for the purpose of providing the appropriate intellectual property protection to the agricultural goods and not to the farmers. 92 Refer Article 15.(2) of the 1991 Act of the UPOV Convention 93 Refer the preamble and the Article 9 of the ITPGR of the FAO. 94 S.39.(1) (i)and S 39. (1) (iii) of the Protection of Plant Varieties and the Farmers Rights Act S. 44 of the Protection of Plant Varieties and the Farmers Rights Act

23 committed by the farmers, 96 right to receive the compensation from the breeders for the breach of the assured expected performance of the protected variety, or seed in the given conditions by the breeder relating to the protected variety guaranteed by the breeder 97 and the right to save, use, sow, resow, and sell the seeds including varieties protected under the Act the relevant part of the Act reads as follows a fanner shall be deemed to be entitled to save, use, sow, reshow, exchange, share or sell his farm reproduce 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 98. The mere plain reading of the above stated provision will make it very clear that this Act provides the necessary safe guards and appropriate legal mechanism to protect and promote the afore said customary rights of the farmers. THE BREEDERS RIGHTS The Act provides the legal mechanism for the protection the rights of the farmers as well as the rights of the breeders so as to provide an effective system of the plant varieties protection which will ultimately result in to the promotion of the investment, technology transfer, research and development 99 and the improvement in the agricultural productivity. The breeder can avail the protection under this Act provided the invention claimed by the applicant fulfills the criteria, such as the novelty, uniformity, distinctiveness and stability and others. The Act also imposes a number of terms and conditions up on the breeder so as to avail the protection under this Act. The protection will confer the following rights up on the breeders they are the exclusive rights 100 to produce, sell, marketing, distribution, import and export and the right to authorize afore stated activities for a prescribed term the violation of the any of the rights enumerated by the Act will result in the infringement if the infringement is proved the infringer is liable to pay damages and the imprisonment under this Act. The Act extents the protection to the planting material, the propagating material, and the seeds of the registered variety, provided the seeds are branded otherwise the protection is not available to the non-branded seeds under this Act. The protection is available only during the term of the registration, subject to certain exemptions 96 S. 42 of the Protection of Plant Varieties and the Farmers Rights Act S. 39.(2) of the Protection of Plant Varieties and the Farmers Rights Act S. 39. (1) (iv) of the Protection of the Plant Varieties and the Farmers Rights Act The preamble of the Protection of Plant Varieties and the Farmers Rights Act S. 28 of the Protection of Plant Varieties and the Farmers Rights Act

24 as prescribed under this Act. The Act empowers the interested persons to challenge the Act registration through pre-grant as well as post-grant oppositions. The empowers the competent authority to take necessary measures so as to prevent the abuse of the breeders rights by the breeders, or, or the registered agent, or the registered licensee and others which includes the grant of the compulsory license, revocation termination and the forfeiture of the certificate of the registration granted under this Act. THE INSTITUTIONAL MECHANISM The Act establishes the following institutional mechanism, they are: the Protection of Plant Varieties and the Farmers Rights Authority of India (the authority), 101 the registry 102 and the Appellate Tribunal. 103 The authority consists of the Chair person as the head and the chief executive officer (CEO) and 15 other members. The registry is administered by the registrar General under the supervision of the Chair Person. The decisions of the Authority as well as the Registrar General is liable to be challenged before the Appellate Tribunal, which consists of the Chair Man as the head and other judicial as well as technical members. 5.3 INDIAN BIOLOGICAL DIVERSITY ACT The history tells us that India has very rich cultural practices, which preserve, protect and promotes the natural resources including the biological resources. The practice of worshiping of the pancha buthas by the Hindus from the ancient times clearly proves that the respect to the natural/biological resource is deeply rooted in the Indian culture. Around 200 years ago the much celebrated Tamil poet Shri Thiruvalluvar has rightly sensitized about the conservation of the biological diversity in his Thirukural above all no one can forget the story of the Ori and Pari. This has been rightly embodied in the Constitution of India too. The Constitution of India mandates the state to take necessary steps to protect and promote respect for the natural resources 104. It also mandates the subjects to do the 105 same. In the ancient times, causing of injuries to the animals and plants has been strictly prohibited by the state. This has been rightly 101 S3 of the Protection of Plant Varieties and the Farmers Rights Act S. 12 of the Protection of Plant Varieties and Farmers Rights Act S. 54 of the Protection of Plant Varieties and the Farmers Rights Act Art 48-A of the Constitution of India 105 Art 51-A (g) of the Constitution of India 273

25 embodied in the Manu Smriti, which says that the different punishments were prescribed for causing injuries to the 106 plants. In the third century B. C. the much celebrated King Shri Ashoka the great has issued a decree, prohibiting the killing of the several animals and birds. He also prohibited the burning of the forests. This concept has been further improved in the times of Shri Kautilya he says that the punishments were prescribed on the basis on the part of the tree on which the injuries have been committed. It is interesting to note that honorable Supreme Court of India has specifically mentioned these documents in the case of K.M. Chinnappa V UOI 107. The Indian constitutional framers have rightly placed the material resources in the hands of the state so as to promote the public 108 good. One can rightly argue that in India, the doctrine of public trust has been elevated to the constitutional status. In 1976, the parliament of India has amended the 109 constitution of India so as to protect and to promote the environment, including the natural resources and the biological resources in explicit terms. They have inserted provisions in the farm of Article 48-(A). And Article 51-A(g) PROVISIONS RELATING TO THE TRADITIONAL KNOWLEDGE AND THE INDIGENOUS PEOPLE IN THE CONSTITUTION: The constitutional framers have rightly adopted a specific 110 schedule to protect and safeguard the interests of the tribal people; which clearly mandate the governors to take special care of them. The parliament of India has enacted several laws to protect the flora and fauna. The Wild Life (protection) Act 1972, the Environmental (protection) Act 1982, the Forest conservation Act 1986 can be stated as the best example on this subject matter. India has got associated itself right from the Stockholm Declaration; which is considered to be the starting point of the International Environmental Law. It has also taken part in the negotiation of the U.N. Convention on the Biological Diversity (CBD). 106 Refer the part (282). For more detail refer para 34 and 35 in the Chinnappa case 107 AIR 2003 (720) 108 Art 39 (b) of the Constitution of India vests all the natural, biological and the material resources in the hands of the state 109 Forty second constitutional amendment Act 110 The sixth schedule has been devoted to protect the interests of the tribal 274

26 LEGISLATIVE HISTORY The Government of India has taken extensive consultation as well as intensive consultation right from , the Government of India has adopted the first ever National Policy on the biological diversity in the year India is one of the mega biodiversity country, comprising 2.4% of the land area and 4% of the fresh water, containing around 7-8 % of the recorded species in the world that is 45968, species of plants and 91364, species of the animals is recorded in 112 India. The notorious patenting of the Neem, Turmeric and Basmati, belonging the Indian biological resources and the traditional knowledge associated with such resources has forced the Government of India to enact a suitable legislation so as to curb afore stated bio piracy; in fact, the government of India has been severely condemned by various activist such as, Vandana Shiva for its inaction. It is in this background to protect and promote the traditional knowledge relating the Genetic resources and its utilization. It is to prevent the mines of the bio piracy inside as well as outside the country. The Parliament of India has enacted the Act relating to the Biological Diversity Act 2002 which has received the ascent of the President of India on the 5 th day February of 2003; as No 18 of The following are the objectives of the Act to comply and to fulfill the obligations arising out of the CBD to protect, preserve and to promote the conservation of the biological resources and to promote the sustainable uses of the biological resources and it s components and to ensure that the fair and equitable sharing of the benefits arising out of the utilization of the biological resources and the traditional knowledge associated with such resources 113. Definitions of the Act defines a number of terms which is very useful in the implementation of the objectives of the CBD It is highly laudable that the Indian Parliament has taken a greater amount of the pain in defining certain terms, which has not been defined even by the CBD for example, the term benefit claimer has been defined in the Indian Biological Diversity Act; the same has been defined in the CBD, however the CBD uses the word the holders of traditional knowledge the CBD has delegated responsibility in defining and protecting the rights of the indigenous people; this has been rightly done by India 111 Refer page 9, of the NBA annual report 112 Refer the page 8 of the Annual report of the NBA 113 The Indian biological diversity Act has simply adopted the object clause the CBD that is Article 1. Of the CBD the Indian law fully complies particularly the preamble of the Act Of the Biological Diversity Act both letter and spirit. 275

27 the 114 Indian law uses the words, such as, creators, conservers, holders of the knowledge and innovation and application India has rightly adopted the elements of the Article 8j of the CBD the relevant part of the Act reads as follows a)"benefit claimers" means the/ conservers of biological resources, their byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices/ associated with such use and application; 115 The term Fair equitable benefit sharing has been used in the CBD as well as in the Biological Diversity Act; it has not been exhaustively, defined by the Act however, the Bonn Guide Lines has taken greater efforts in explaining the elements of the term fair and equitable sharing of benefits the Indian Biological Diversity Act has also adopted the same 116 mode that is, it simply states that it will be determined by the National Biodiversity Authority of India here after it will be termed as (NBA) the term benefit includes both monetary as well as non-monetary 117 benefits as it has been defined by the Bonn Guide Lines the relevant part of the Act reads as follows "fair and equitable benefit sharing" means sharing of benefits as determined by the National Biodiversity Authority 118 under section 2 1; The Indian Biological Diversity Act has simply adopted the definition for the term Biological Diversity as, it has been defined by the CBD the relevant part of the Act reads as follows "biological diversity" means the variability among living organisms from all sources and the ecological complexes of which they are part, 119 and includes diversity within species or between species and of eco-systems; The Act also defines the term Biological resources the Indian Parliament has taken different approach in defining the term Biological Resources instead of adopting the definition of biological resources, as it has been embodied in the CBD they have taken the definition of the biological resources and the definition of the term Genetic material, contained in the CBD; in defining the term Biological resources in the Indian Biological Diversity Act, that is the term Biological resources embodied in the Indian Biological Diversity Act is a wider one, which 114 S.2.(a) of the Biological Diversity Act S. 2 (A) of the Biological Diversity Act of S. 18.(1) of the Biological Diversity act 2002, mandates the NBA to regulate the access and determine the benefit sharing by framing appropriate guide lines 117 S.21.(2) (f) of the Biological Diversity Act S. 2(g) of the Biological Diversity Act S.2.(B) of the Biological Diversity Act