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7 December, 2018
On September 10, 2018, the Government of India issued an Office Memorandum directing the National Biodiversity Authority (NBA) to enhance the implementation of the provisions of the Indian Biological Diversity Act, 2002 (the 'Act').
The Act was passed by the Indian Parliament in compliance with India's membership to the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992. The objective of the Act is to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of Indian biological resources, knowledge and for matters connected therewith or incidental thereto.
The scheme of the Act regulates and requires obtaining of prior NBA approval for the following actions:
Access of Indian bio resources by
(a) a person who is not a citizen of India; or
(b) by a citizen of India, who is a non-resident as defined in clause (30) of section 2 of the Income-tax Act, 1961; or
(c) by a body corporate, association or organization not incorporated or registered in India; or incorporated in India which has any non-Indian participation in its share capital or management (Section 3 of the Act)
Transfer the results of any research by any person relating to any biological resources occurring in, or obtained from, India for monetary consideration or otherwise to any person who is not a citizen of India or citizen of India who is non-resident as defined in clause (30) of section 2 of the Income-tax Act, 1961 or a body corporate or organization which is not registered or incorporated in India or which has any non-Indian participation in its share capital or management. (Section 4 of the Act)
Filing of a patent or any other any intellectual property right application by any person in or outside India for any invention based on any research or information on a biological resource obtained from India. Note: The NBA approval in this case may be obtained after the acceptance of the patent but before the seating of patent by the patent authority concerned. (Section 6 of the Act)
It was brought to the notice of the Central Government that a large number of persons and entities who are not fully aware of the provisions of the Act but are desirous of complying with its requirements. Considering the materials placed before it, the Central Government directed the NBA to hear all those cases in which the approval was required to be obtained but was not obtained by the persons/entities. As per the Office Memorandum, the NBA has 100 days from the date of the Memorandum to decide those cases on merit and to ensure that only those cases are granted approval for future activities which would have otherwise been approved in the normal course. The NBA is also directed to continue spread of awareness of the provisions of the Act to various stakeholders to avoid occurrence of such activities.
We strongly recommend availing this window provided to the persons/entities who fall within the definition as provided under Section 3 of the Act to apply and obtain approval for the activities undertaken under Section 3 or Section 4 of the Act and to all applicants who have filed patent application in or outside India for any invention based on any research or information on a biological resource obtained from India.
The full text of the Memorandum is available here.
For further information, please contact:
Abhai Pandey, Partner, LexOrbis
abhai@lexorbis.com
