Section 10(4): Disclosure of Source and Geographical Origin

In one line

The obligation that makes biopiracy visible on the face of the application, and the three places it is enforced.

In exam wording: sub-clause (D) of clause (d)(ii) of sub-section (4) of section 10 of the Patents Act 1970 requires the complete specification to disclose the source and geographical origin of the biological material in the specification, when used in an invention; the same clause requires that where the applicant mentions a biological material which may not be described in a way that satisfies clauses (a) and (b) of section 10(4), and the material is not available to the public, the application shall be completed by depositing the material with an international depository authority under the Budapest Treaty, the deposit being made not later than the date of filing in India, with all available characteristics required for correct identification included in the specification, and access to the material available at the depository only after the date of the application or of the priority claimed; and section 84 permits any person interested, at any time after three years from the grant, to apply for a compulsory licence on the grounds that the reasonable requirements of the public with respect to the patented invention have not been satisfied, that the invention is not available to the public at a reasonably affordable price, or that it is not worked in the territory of India.

Where the obligation sits

Section 10 is about the contents of a specification. Sub-section (4) requires the complete specification to fully and particularly describe the invention and its operation or use and the method by which it is to be performed; to disclose the best method of performing it known to the applicant; to end with a claim or claims defining the scope of the invention; and to be accompanied by an abstract.

The biological material provisions sit inside the abstract clause, at clause (d)(ii), and there are four sub-clauses. Three concern deposit, and the fourth is the disclosure obligation.

(A) Deposit not later than the date of filing the patent application in India, with a reference in the specification within the prescribed period.

(B) All the available characteristics of the material required for it to be correctly identified or indicated, including the name and address of the depository institution and the date and number of the deposit.

(C) Access at the depository only after the date of the application in India, or, if priority is claimed, after the priority date.

(D) Disclose the source and geographical origin of the biological material in the specification, when used in an invention.

Why deposit is necessary at all

Because a micro-organism cannot be described in words well enough for another person to work the invention. Section 10(4)(a) and (b) require a description that enables performance and disclosure of the best method. For a living organism the description fails, so the law substitutes a physical deposit.