Why India Needed an Act of Its Own

In one line

India signed the Convention in 1992 and passed its Act in 2002, and what happened in the ten years between is why the Act looks the way it does.

In exam wording: the Biological Diversity Act 2002, Act 18 of 2003, was enacted to provide for conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge, and for matters connected therewith; it implements the Convention on Biological Diversity 1992 under Article 253 of the Constitution, and it was passed after a decade in which patents were granted abroad on turmeric, neem and basmati derived from Indian biological resources and traditional knowledge.

Why the law has this at all

Before 1992 genetic material was treated as freely available. Article 3 of the Convention reversed that by affirming sovereignty, and article 15 made access a matter for the providing country's law. But article 15(1) also said that access is subject to national legislation, and until a country legislates it has a right and no machinery.

India therefore had a right it could not exercise. Between the signature of the Convention and the enactment of the statute, three episodes made the absence of machinery a public issue.

The three episodes

Turmeric. A patent was granted in the United States on the use of turmeric in wound healing. India challenged it by producing published prior art, including an ancient text and a paper in an Indian medical journal, and the claims were revoked. The lesson: traditional knowledge that is written down and published is prior art, and the difficulty is proving it to a foreign examiner.

Neem. A European patent on a fungicide derived from neem oil was opposed and revoked on the ground of prior use in India. The lesson: proving prior use, as distinct from prior publication, is far harder and takes years.

Basmati. Claims in a United States patent relating to rice lines were challenged and some were withdrawn or narrowed. The lesson: the dispute was as much about the name as about the plant, which is why geographical indications became part of the Indian answer.

These were proceedings before foreign patent offices, not judgments of Indian courts. This book states the outcome of each in general terms and does not recite claim numbers it has not read.

What the episodes showed

1. India had no gatekeeper. Nobody had to ask before taking material out.

2. The remedy was always after the event and always abroad. Revocation proceedings in a foreign office are slow and expensive, and they succeed only where prior art can be produced in a form the office accepts.