India is rich of biodiversity and the Indian culture and traditional knowledge acknowledge the medicinal value of the biodiversity and its best use. The case is with regard to the patenting of XYZ plant by the US Patent
CS Professional · Intellectual Property Rights - Law and Practice · PYQS · December 2019
India is rich of biodiversity and the Indian culture and traditional knowledge acknowledge the medicinal value of the biodiversity and its best use. The case is with regard to the patenting of XYZ plant by the US Patent and Trademark Office by awarding at least four broad patents for use of XYZ plant, the good old sine qua non of Indian food and medicine. The patents, one of which has been awarded to an NRI scientist duo, Abhiskek and Shayam, of the University of New York confer on the applicant's exclusive rights to specific formulations of powder as the wound-healer, the anti-inflammatory agent. These scientists on their visit to India to their native place have taken the samples of plant XYZ without information and permission of the appropriate State or National biodiversity board regarding their intention of research and development of the XYZ plant. Indian activists protested to that as blatant example of biopiracy. They rightly raise the concern that how can anybody patent something that has been the collective wisdom of a people for centuries ? Indian scientists, too, for a change, have woken up from their complacency. The head of the Council for Scientific and Industrial Research's Intellectual Property Management Division, says the Council will immediately challenge the patents as XYZ's medical uses have been well-documented in India's medical literature. Meanwhile, the Chandigarh-based Central Drug Research Institute, which has been working on XYZ for over a decade, has promptly applied for a patent on XYZ's wound-healing property. The US patent office, defends the patents arguing that while XYZ as a wound-healing ointment has been in public use, its application in the powder form is not known. This argument was not well received by the Indian counterpart and they retorts that the above patent do not satisfy the two most important requisites of a patent claim in US i.e., novelty and non-obviousness. As per them under the US law, a new medicinal property of a known compound could be patented, but not the known property. To secure patent protection even for the new property, the applicant has to submit substantial medical evidence which is not very easy. Questions: Whether the US company is guilty of bio-piracy?
Answer & Explanation:
Biopiracy is defined as the commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or organisation without fair compensation to the people or nations in whose territory the materials were originally discovered. Biopiracy is an international problem. Often, in the search for new bio resources, researchers draw on local people's traditional knowledge about the properties of a particular plant, animal or chemical compound. When researchers use traditional knowledge without permission, or exploits the cultures they're drawing from - it's called biopiracy. It happens when researchers or research organisations take biological resources without official sanction, largely from less affluent countries or marginalised people. Biopiracy is not limited to drug development. It also occurs in agricultural and industrial contexts. Indian products such as the neem, tree, tamarind and turmeric etc. have all been patented by foreign firms for different lucrative purposes. The piracy of the biodiversity from one state to another state without the permission of the authority is covered under the concept of biopiracy. Though there is no specific legislation with regards to the biopiracy which define the concept of biopiracy, but the Biodiversity Act, 2000 indirectly deals with the conservation, sustainable development and benefit sharing out of the biodiversity. The Act constitute two biodiversity board i.e., state biodiversity board and national biodiversity board. In case the foreigner applies for research of the biodiversity, they need to take the permission of national and state biodiversity board. They need to narrate the reasons of the research. With their permission they are only to explore and commercially use the biodiversity. If it is not as per the rules, it amounts to biopiracy. In this case it is a clear case of biopiracy because there is no permission of research from any Government authority and the qualities that were granted IP rights by the US government were in the collective knowledge of the Indian society for centuries. In the given case exploitation of IP rights by the US Company.
Topics: Biodiversity and Traditional Knowledge
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