SEM VI Intellectual Property Rights-II – Unit II Class Notes

These Intellectual Property Rights II Unit II class notes provide a detailed examination of the statutory frameworks governing biological diversity conservation, plant variety protection, farmers rights, and geographical indications under Indian law. The curriculum explores the Biological Diversity Act 2002, the Protection of Plant Varieties and Farmers Rights Act 2001, and the Geographical Indications of Goods Act 1999, highlighting their mechanisms for balancing commercial intellectual property rights with ecological preservation and community heritage.

Overview of Intellectual Property Rights II Unit II Curriculum

Unit II in the sixth semester Intellectual Property Rights II curriculum focuses on non-patent intellectual property regimes and sui generis statutory systems developed to protect ecological resources, agricultural innovations, and regional indications of origin. Unlike conventional industrial property regimes, these legal frameworks interface directly with environmental law, agrarian livelihoods, and the preservation of traditional knowledge.

India enacted these specialized legislations to fulfill its international treaty commitments under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the Convention on Biological Diversity (CBD) 1992, and the Nagoya Protocol. For students preparing across commercial and administrative law subjects, supplementary materials are available in our CS Executive Notes and through guidance from a qualified Property Lawyer.

1. Biological Diversity Act, 2002

The Biological Diversity Act, 2002 (Act No. 18 of 2003) was enacted by Parliament to realize the core objectives of the Convention on Biological Diversity: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising out of the utilization of biological resources and associated knowledge.

Three-Tier Institutional Architecture

The Act establishes a decentralized, three-tier institutional machinery to govern biological access and conservation across India:

• National Biodiversity Authority (NBA): Headquartered in Chennai, the NBA is the apex statutory authority established under Section 8. It exercises regulatory control over foreign individuals, non-resident Indians, and foreign corporations seeking access to Indian biological resources or associated knowledge under Section 3. It also grants prior approvals for intellectual property applications based on Indian biological resources under Section 6.
• State Biodiversity Boards (SBBs): Established at the state level under Section 22, SBBs regulate the access and commercial utilization of bio-resources by Indian citizens, domestic corporate bodies, and local enterprises under Section 7. SBBs advise state governments on conservation policies and sustainable utilization guidelines.
• Biodiversity Management Committees (BMCs): Constituted by local self-government bodies (Panchayats and Municipalities) under Section 41, BMCs operate at the grass-roots level. BMCs are responsible for promoting conservation, preserving habitats, documenting local cultivars and landraces, and maintaining detailed People Biodiversity Registers (PBR).

Access and Benefit Sharing (ABS) Framework

Access and Benefit Sharing (ABS) is the cornerstone of the Biological Diversity Act. Under Section 19 and Section 21, whenever an applicant accesses biological material or associated traditional knowledge for commercial utilization or research, the NBA negotiates terms requiring the payment of monetary compensation, technology transfer, or joint ownership of intellectual property. The funds collected are directed into the National Biodiversity Fund to benefit local communities and conservation projects.

Statutory Linkage with Intellectual Property Rights

Section 6 of the Act establishes a mandatory legal filter: no person shall apply for any intellectual property right in India or abroad for any invention based on any research or information on a biological resource obtained from India without obtaining the prior approval of the NBA. The NBA may impose benefit-sharing royalties or conditions ensuring that local communities receive due recognition and commercial returns.

Exemptions Under the Act

To safeguard indigenous practices, the Act explicitly exempts local people and communities, including traditional healers, vaids, and hakims, who practice indigenous medicine or cultivate local biological resources. It also exempts collaborative research projects between Indian and foreign institutions that comply with Central Government guidelines.

2. Protection of Plant Varieties and Farmers Rights Act, 2001 (PPV and FR Act)

Article 27.3(b) of the TRIPS Agreement mandates that member states must provide protection for plant varieties either by patents, by an effective sui generis system, or by a combination thereof. India enacted the Protection of Plant Varieties and Farmers Rights Act, 2001 (PPV and FR Act) to create a unique sui generis framework that simultaneously protects the intellectual property of plant breeders while recognizing the historical contributions of farming communities.

Criteria for Registration: The NDUS Standards

Under Section 15 of the Act, a plant variety is eligible for registration if it satisfies four essential technical criteria:

1. Novelty: The propagating or harvested material of the variety must not have been sold or disposed of with the consent of the breeder beyond prescribed statutory periods before the filing date.
2. Distinctiveness: The candidate variety must be clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge.
3. Uniformity: The variety must remain sufficiently uniform in its relevant characteristics, subject to the variation expected from particular features of its propagation.
4. Stability: The essential characteristics of the variety must remain unchanged after repeated propagation or at the end of each cycle of reproduction.

Categories of Protected Varieties

• New Varieties: Newly bred varieties that conform to the full NDUS criteria.
• Extant Varieties: Varieties notified under Section 5 of the Seeds Act, 1966, or varieties in the public domain, or farmers varieties already in cultivation.
• Farmers Varieties: Varieties traditionally cultivated and evolved by farmers in their fields or wild relative varieties about which farmers possess common knowledge.
• Essentially Derived Varieties (EDV): Varieties predominantly derived from an initial protected variety while retaining the expression of its essential characteristics.

Plant Breeders Rights vs Farmers Rights

The Act creates a carefully negotiated balance between commercial breeders and agricultural producers:

• Breeders Rights (Section 28): Grants the registered breeder, or their authorized licensee, the exclusive commercial right to produce, sell, market, distribute, import, or export the registered variety or its propagating material.
• Researchers Rights (Section 30): Allows scientists and research institutions to use any registered variety for conducting experiments or developing new varieties, provided repeated use of the parental line does not occur without the breeder permission.
• Farmers Rights (Section 39): Recognizes farmers not merely as consumers of seed, but as plant breeders and conservers. Section 39(1)(iv) provides that a farmer is entitled to save, use, sow, resow, exchange, share, or sell their farm produce, including seed of a variety protected under this Act, provided the farmer does not sell branded packaged seed under the protected commercial name.
• Protection Against Innocent Infringement (Section 42): Protects farmers from penal liability where they can prove that at the time of an alleged infringement they were unaware of the existence of the registration right.
• National Gene Fund (Section 45): Established to receive benefit-sharing contributions from registered breeders, utilized to support conservation efforts in gene-rich tribal and rural areas.

3. Geographical Indications of Goods Act, 1999

The Geographical Indications of Goods (Registration and Protection) Act, 1999 provides statutory protection for goods that possess a specific geographical origin and possess qualities, reputation, or characteristics attributable to that location.

Definition and Core Concepts

Under Section 2(1)(e), a Geographical Indication (GI) in relation to goods means an indication which identifies agricultural, natural, or manufactured goods as originating or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation, or other characteristic of such goods is essentially attributable to its geographical environmental factors, natural conditions, or human manufacturing traditions.

Key Differences: Geographical Indication vs Trademark

Registration Procedure and Validity

Applications for GI registration are submitted to the Geographical Indications Registry in Chennai. Registration is divided into two distinct parts:

• Part A of the Register: Contains particulars relating to the registration of the geographical indication itself, filed by an association of persons, producers, or organization representing the collective interests of the region.
• Part B of the Register: Contains particulars of individual authorized users who produce the goods in the designated territory and meet the quality standards.

Registration is valid for an initial term of 10 years and may be renewed periodically indefinitely upon payment of the prescribed renewal fee.

Infringement and Passing Off Remedies

Under Section 20 and Section 21, the registered proprietor and authorized users possess exclusive rights to use the GI tag. Infringement occurs when an unauthorized entity uses the indication in a manner that misleads consumers regarding the true geographic origin or constitutes an act of unfair competition. The Act provides both civil remedies (injunctions, damages, delivery up of infringing goods) and criminal penalties (imprisonment from 6 months to 3 years and heavy fines) for falsifying or falsely applying a registered geographical indication.

4. Protection of Traditional Knowledge and Prevention of Biopiracy

Traditional knowledge encompasses indigenous technical practices, medicinal formulations, and agricultural traditions preserved across generations. Biopiracy refers to the unauthorized commercial appropriation of biological resources and traditional indigenous knowledge without consent or benefit sharing.

India successfully countered biopiracy internationally through high-profile legal challenges, including the revocation of the US patent on the wound-healing properties of Turmeric and the European patent on the fungicidal properties of Neem. To systematically protect traditional knowledge, India created the Traditional Knowledge Digital Library (TKDL), a premier digital repository documenting over 300,000 Ayurvedic, Unani, Siddha, and Yoga formulations in multiple international languages, enabling global patent offices to establish prior art and reject wrongful patent claims.

Summary of Key Principles for LL.B Examinations

• Biological Diversity: Three-tier structure (NBA at central level, SBB at state level, BMC at local level) governs access, ABS agreements, and prior approval for IPR filings under Section 6.
• Plant Variety Protection: Novelty, Distinctiveness, Uniformity, and Stability (NDUS) form the registration criteria. Section 39 firmly safeguards farmers right to save, use, and exchange unbranded seed.
• Geographical Indications: Collective, unassignable intellectual property right under the 1999 Act that protects regional reputation, cultural heritage, and authentic artisanal products.
• Traditional Knowledge: Defended through TKDL databases, CBD prior informed consent rules, and mandatory ABS compliance to eliminate international biopiracy.