EXPLORING THE RELATIONSHIP BETWEEN INTELLECTUAL PROPERTY RIGHTS AND BIODIVERSITY MANAGEMENT
Nihaarika Prudhvi, Associate – Intellectual Property Rights Practice
Introduction:
Intellectual Property Rights (IPRs) and biodiversity are two distinct domains that often intersect, giving rise to complex legal, ethical, and environmental considerations. As human activities continue to affect biodiversity across the globe, understanding the relationship between IPRs and biodiversity becomes ever more crucial. This article aims to delve into the various ways in which IPRs are linked to biodiversity, exploring the potential challenges and opportunities that arise from their intersections.
1. The Role of IPRs in Biodiversity Conservation:
Intellectual Property Rights, such as patents, trademarks, and copyrights, serve as legal instruments that incentivize innovation and creativity. In the context of biodiversity conservation, IPRs play a vital role in promoting research and development in fields like biotechnology, pharmaceuticals, and agriculture. By providing exclusive rights to inventors or creators, IPRs encourage the development of new technologies, products, and processes aimed at conserving and sustainably utilizing biodiversity.
- Encouraging Research and Innovation:
Intellectual property protection, such as patents, copyrights, and trademarks, provides legal recognition and exclusive rights to individuals or organizations that invest in research and innovation related to biodiversity conservation. These rights incentivize scientists, researchers, and companies to invest time, effort, and resources in developing technologies and solutions for conserving biodiversity. This fosters the creation of new knowledge, methods, and products that ultimately contribute to biodiversity conservation.
IPRs, such as patents and plant breeders’ rights, provide legal protection and exclusive rights to individuals or organizations that develop new and inventive technologies, products, or processes. This stimulates innovation in biodiversity conservation by providing incentives for researchers, scientists, and businesses to invest time, resources, and effort into developing novel solutions.
2. Biopiracy and Access and Benefit Sharing:
A major concern related to IPRs, and biodiversity is the issue of biopiracy, which refers to the unauthorized commercial exploitation of biological resources and traditional knowledge associated with biodiversity. Developing countries and indigenous communities often find themselves at a disadvantage when their traditional knowledge or genetic resources are patented by corporations from wealthier nations. To address this, the concept of Access and Benefit Sharing (ABS) has emerged, attempting to ensure equitable sharing of benefits derived from the utilization of biodiversity and associated knowledge.
3. Traditional Knowledge and Intellectual Property Rights:
Indigenous and local communities, possessing deep traditional knowledge of biodiversity, have made important contributions to various fields, including medicine, agriculture, and ecological management. However, the recognition and protection of their intellectual property rights have been challenging. Traditional knowledge is often considered a part of the collective heritage of communities rather than individual property, making it difficult to fit within the existing IPR framework. Efforts are being made to acknowledge and protect indigenous intellectual property by establishing sui generis systems and implementing mechanisms for prior informed consent.
4. Plant Breeders’ Rights and Biodiversity:
Plant Breeders’ Rights (PBR), a specific form of IPR, grant protection to breeders for new plant varieties they develop through extensive research and selection. While PBR encourages innovation and investment in plant breeding, critics argue that it may lead to reduced genetic diversity and the monopolization of plant genetic resources. Balancing the need for innovation with concerns about maintaining biodiversity is a critical challenge that requires the establishment of effective safeguards and recognition of the importance of conserving genetic resources.
5. IPRs and Traditional Medicinal Knowledge:
Traditional medicinal knowledge, accumulated over generations, is vital for the development of new pharmaceuticals and healthcare products. However, the commercialization of these products can potentially exploit traditional communities and their resources without adequate recognition or equitable compensation. Developing mechanisms to protect traditional medicinal knowledge by integrating it with patent systems is an ongoing effort under international discussions and agreements.
(PATENT VS BIODIVERSITY) – Here is a small story –
Once upon a time, in the beautiful country of India, there was a law known as the Biodiversity Act 2002. This act was put in place to protect and preserve the incredible diversity of plant and animal life found in the country. The act was enforced by the National Biodiversity Authority (NBA), whose main responsibility was to regulate the access and sharing of biological resources and knowledge.
One of the key provisions of the BD Act was Section 6 (1), which stated that “no person could apply for any intellectual property right based on research or information on a biological resource obtained from India without the prior approval of the NBA”. This meant that anyone seeking a patent for an invention that used a biological resource from India had to obtain permission from the NBA before making their application.
To complement the BD Act, the Indian Patents Act 1970 and Rules 2003 also included provisions related to biodiversity. These provisions required patent applicants to disclose the source and geographical origin of any biological material used in their invention. Failure to do so could result in the refusal or revocation of a patent.
Penalties for contravening the BD Act were severe, with imprisonment and massive fines being possible consequences. Similarly, violating the biodiversity provisions under the Indian Patents Act could result in the refusal or revocation of a patent.
Moreover,, there was a case of post-grant opposition filed by the NBA against Sunev Pharma Solutions Ltd. The company had obtained a patent for an invention that used various biological resources without obtaining prior approval from the NBA. The NBA discovered that similar patents had been granted in other countries without their approval as well. This blatant violation of the BD Act was a clear example of wrongful disclosure of the source and origin of biological resources.
The Indian Patent Office took notice of this case and stated that any false declaration by an applicant would make them liable for the revocation of their patent. It was clear that strict adherence to the BD Act and the disclosure requirements of the Indian Patents Act was necessary for a smooth patent grant process.
The IPO recognized that not all inventions would require approval from the NBA. Value-added products, which contain portions or extracts of plants and animals in unrecognizable and physically inseparable form, were exempt from the approval requirement. Additionally, inventions based on bio-wastes or synthetically prepared biological material did not need NBA approval.
To conclude the story, BD Act and the provisions of the Indian Patents Act were in place to protect India’s rich biodiversity and ensure fair benefit-sharing. Any person seeking a patent for an invention that used a biological resource from India had to obtain prior approval from the NBA. Failure to comply with these regulations could result in severe penalties or the loss of a patent. It was a reminder that the preservation of biodiversity was a responsibility that everyone must take seriously.
Conclusion:
The relationship between IPRs and biodiversity is complex, with potential benefits and challenges that must be carefully weighed. While IPRs can incentivize innovation and contribute to biodiversity conservation, they can also create barriers to accessing genetic resources and hinder traditional knowledge-sharing. Achieving a delicate balance between intellectual property protection and biodiversity conservation requires multi-stakeholder collaborations, robust legal frameworks, and ethical considerations. By recognizing the inherent value of biodiversity and incorporating principles of equity, sustainability, and respect for traditional knowledge, we can foster a harmonious relationship between IPRs and biodiversity conservation in the pursuit of a more sustainable future.
Bibliography:
Referred Websites:
https://indiankanoon.org/doc/1758638/
https://indiankanoon.org/doc/43850560/
https://indiankanoon.org/doc/111079/
http://ipindiaservices.gov.in/PatentSearch/PatentSearch/ViewPDF