The Biological Diversity Act (hereinafter referred to as "Act") covers conservation, use of biological resources and associated knowledge occurring in India for commercial or research purposes or for the purposes of bio-survey and bio-utilisation. It provides a framework for access to biological resources and sharing the benefits arising out of such access and use. The Act also includes in its ambit the transfer of research results and application for intellectual property rights (IPRs) relating to Indian biological resources. The National Biodiversity Authority (hereinafter referredto as "NBA") and State Biodiversity Boards (hereinafter referredto as "SBB") are established to deal with matters relating to implementation of the Act and the Rules.
In the present Article, we have discussed regarding the requirement of permission of NBA and SBB for research, transferring of research results, commercialisation and filing intellectual property rights (IPRs) applications, which are based on Indian biological resources and knowledge associated thereto.
Requirement of NBA permission for applying IPR
It is provided in the Act that no person can make any application for intellectual property right in or outside India based on any research or information on a biological resource obtained from India without obtaining the prior approval of the NBA and in case of patents, permission of the NBA may be obtained after application is made but before sealing of the patent. However, there is exemption provided in the Act relating to IPR protection of plant varieties and according to which any person making an application for any right under any law relating to protection of plant varieties enacted by Parliament is exempted to take the prior approval of the NBA.
Requirement of NBA permission for research or commercialization
As per the Act, an Indian citizen who is also a resident of India as per the Income-tax Act or a body corporate or organization which is incorporated in India and not having any non-Indian participation in its share capital or management (hereinafter referredto as "Indian legal entity") neither require prior approval of the NBA nor need to give prior intimation to the SBB for obtaining biological resource while conducting research in India and in case of the commercial utilization, Indian citizen and Indian legal entity just needed to give prior intimation to the SBB.
On the other hand, foreigners, non-resident Indians, a body corporate or organization that is either not incorporated in India or incorporated in India with non-Indian participation in its share capital or management (hereinafter referredto as "non-Indian legal entity") require the approval of the NBA when they access/use biological resources and associated knowledge occurring in India for commercial or research purposes or bio-survey or bio-utilisation for commercial utilization.
The Act also imposes restriction that no person can without the previous approval of the NBA, transfer the results of any research relating to any Indian biological resources to a person who is not a citizen of India or a non-resident Indian or a non-Indian legal entity. In other words, one can freely transfer the research results of Indian biological resources only to a citizen of India, who is also a resident of India as per the Income-tax Act or an Indian legal entity. However, no such permission is needed for publication of papers or dissemination of knowledge in any seminar or workshop, if such publication is as per the guidelines issued by the Central Government.
Further, the Act exempts collaborative research from the requirements of securing prior approval of the NBA. The exemption covers collaborative research between Indian and foreign institutions and aims to facilitate research and while removing any encumbrances to the same. For research to qualify as collaborative research under this category, it would have to conform to the Central Government guidelines for collaborative research and be approved by the Central Government. In exercise of the powers conferred by clause (a) of sub-section (3) of section 5 of the Act, the Ministry of Environment and Forest (hereinafter referredto as "MoEF") had issued a notification dated November 8, 2006 to provide guidelines for the same.
Furthermore, Section 40 of Act exempts Normally Traded Commodities (NTCs) from the purview of the Act. In this regard, the MoEF had issued a notification dated October 26, 2009 listing 190 biological resources exempted from purview of the Act, provided they are traded as commodities. Subsequent to the issuance of the said notification, the MoEF has clarified that the notification dated October 26, 2009 only allows export of those 190 biological resources and such export would not require prior permission of the NBA. The MoEF has further, clarified that only if those 190 biological resources are to be used for research or industrial purpose, the same would require obtaining of prior approval of the NBA as per the relevant provisions of National Biodiversity Act, 2005. Thus, there is no special exemption is provided in the Act if those NTCs are to be used for research or industrial purpose.
It is provided in the Act that contravention or abetment of the provisions would attract the penalties which include imprisonment or fine or both. Further, any offence under this Act is non-bailable and cognizable.
The researchers/industrialists/IPR's applicants or any other person who intend to use Indian biological resources and knowledge associated thereto have to carefully and diligently consider the relevant provisions of the Act prior to using the same to ensure strict compliance of various provisions of the Act and to avoid penalties prescribed therein.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.