By Dr. Deepti Malhotra & Dr. Malathi Lakshmikumaran
- obtaining any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization;
- transferring the results of any research relating to any biological resources occurring in, or obtained from, India for monetary consideration;
- applying for any intellectual property right, by whatever name called, in or outside India for any invention based on any research or information on a biological resource obtained from India;
- transferring any biological resources or knowledge associated thereto occurring in, or obtained from, India for which an approval from NBA has been granted, for monetary consideration;
- approval of the NBA for access to biological resources and associated knowledge for research or for commercial utilization: Form I, under Section 3 of the Act and Rule 14 of the Rules;
- approval of the NBA for transferring results of research, relating to biological resources obtained from India, for monetary consideration to foreign nationals, companies and Non-Resident Indians (NRIs): Form II, under Section 4 of the Act and Rule 17 of the Rules;
- approval of the NBA for applying for a patent or any other intellectual property right based on research on biological material and knowledge obtained from India: Form III, under Section 6 of the Act and Rule 18 of the Rules; and
- approval of the NBA for persons who have been granted approval for access to biological resources and associated knowledge, but who intend to transfer the accessed biological resource or knowledge to any other person or organization: Form IV, under Section 20 of the Act and Rule 19 of the Rules.
Importantly, the OM gives an opportunity to all the Applicants falling within the purview of Section 3(2)[See Endnote 8] of the Act to get absolved of all the violations pertaining to Sections 3, 4, 6, or 20 of the Act, that might have been caused due to their past activities. For Applicants falling under Section 7 of the Act, i.e., a citizen of India or a body corporate, association or organisation which is registered in India, the State Biodiversity Board (SBB) is the competent authority for regularising the non-compliance with the requirement of giving prior intimation to the SBB for obtaining biological resources for commercial utilisation or bio-survey and bio-utilisation. Importantly, for the Indian applicants, even the prior intimation requirement under section 7 is not applicable for accessing biological resources for research per se. Further, access to germplasms for conventional breeding is also exempt under the definition of commercial utilization under Section 2 of the Act[See Endnote 9]. Another exemption is to applicants under Protection of Plant Varieties and Farmers' Rights Act, 2001, who are not required to obtain an approval from the NBA. However, all persons and entities, even Applicants falling under Section 7 of the Act, are required to apply at the NBA for prior approval by filing Form III before the date of grant of the corresponding application to obtain IPR[See Endnote 10] such as applications for Patents in India or any other foreign jurisdiction, and the OM extends the privilege to past violations under the Act.
[The authors are Senior Patent Analyst and Executive Director, respectively, in IPR Practice Team, Lakshmikumaran & Sridharan]
- Section 2 (b) of Biodiversity Act, 2002: “biological diversity” means the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems;
- Section 3(2) of Biodiversity Act, 2002: The persons who shall be required to take the approval of the National Biodiversity Authority under sub-section (1) are the following, namely:- (a) a person who is not a citizen of India; (b) a citizen of India, who is a non-resident as defined in clause (30) of section 2 of the Income-tax Act, 1961 ; (c) a body corporate, association or organization- (i) not incorporated or registered in India; or (ii) incorporated or registered in India under any law for the time being in force which has any non-Indian participation in its share capital or management.
- Section 2(f) of Biodiversity Act, 2002: “commercial utilization” means end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping;