The Biological Diversity Act and the Patents Act, PPV&FR Act and GI Act - Law of Intellectual Property and Biodiversity

← All Law of Intellectual Property and Biodiversity topics

On this page

1. Why the statutes meet
2. The BDA and the Patents Act, 1970
3. The BDA and the PPV FR Act, 2001
4. The BDA and the GI Act, 1999
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The last syllabus item asks for the interrelationship of four statutes. Organise the answer statute by statute: for each, state how it touches biological resources, which BDA provisions link to it, and where the two fit or clash. End with an overall assessment.

1. Why the statutes meet

A single biological resource can be the subject of several rights at once. A wild relative of rice from a Kerala village may be the source of a gene claimed in a patent, a parent of a variety registered under the PPV&FR Act, and part of a GI-registered traditional rice. The BDA regulates access to the resource and benefit sharing; the IP statutes grant rights over what is made from it. The BDA’s bridging provisions are sections 6, 18(4), 59A and 40.

2. The BDA and the Patents Act, 1970

(a) Patentability. Section 3 of the Patents Act excludes:

section 3(c): the mere discovery of a scientific principle or abstract theory, or of any living thing or non-living substance occurring in nature;
section 3(j): plants and animals in whole or any part thereof other than micro-organisms, including seeds, varieties and species, and essentially biological processes for production or propagation of plants and animals;
section 3(p): an invention which in effect is traditional knowledge or an aggregation or duplication of known properties of traditionally known components.

(b) Disclosure. Section 10(4)(ii)(D) requires the complete specification to disclose the source and geographical origin of biological material used in the invention. Form 1 asks the applicant to declare whether Indian biological material is used and whether NBA permission has been or will be obtained.

(c) Opposition and revocation. Pre-grant and post-grant opposition (section 25(1)(j) and (k), and section 25(2)) and revocation (section 64(1)(p) and (q)) are available where the specification does not disclose or wrongly mentions the source or geographical origin of biological material, or where the invention is anticipated by knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.

(d) The BDA link. Section 6 of the BDA (as amended in 2023) requires NBA approval (foreign applicants) or registration (Indian applicants) before grant of a patent for an invention based on research or information on a biological resource accessed from India or associated TK. In practice the Controller does not grant such a patent until the applicant produces the NBA’s approval. Section 18(4) authorises the NBA to oppose grants abroad.

Assessment. The two statutes are designed to work together: the Patents Act supplies the disclosure, opposition and revocation machinery, and the BDA supplies the approval and benefit sharing. Gaps remain. The Patents Act does not make NBA approval a stated ground of opposition or revocation, so a patent granted without approval is open to attack only indirectly (through non-disclosure or the BDA penalty). The 2023 exemption of codified TK for Indians also means that a patent by an Indian firm on a formulation from a classical text needs no NBA approval for the TK, though section 3(p) may still bar it.

3. The BDA and the PPV&FR Act, 2001

(a) Exemption from NBA approval. Section 6(3) of the BDA provides that section 6 does not apply to a person applying for any right under any law relating to protection of plant varieties; section 6(4) requires the authority granting such a right to endorse a copy of the grant to the NBA. Section 59A (inserted in 2023) adds that the BDA does not apply to a person given an approval or right under the plant varieties law, to the extent that such approval or right does not require similar approval under the BDA. The reason is that the PPV&FR Act has its own system of disclosure and benefit sharing.

(b) Parallel mechanisms.

Feature	BDA	PPV&FR Act
Disclosure	Approval forms; IP registration with NBA	Disclosure of source of genetic material and of use of material conserved by tribal or rural families
Benefit sharing	Section 21, on MAT, NBA and SBB	Section 26, claims after registration, determined by the PPV&FR Authority
Communities	Benefit claimers, BMCs	Section 41 compensation to village or local community
Fund	National, State and Local Biodiversity Funds	National Gene Fund (section 45)
Farmers	Growers and cultivators exempt from section 7	Farmers’ rights under section 39

(c) Overlaps. The exemption covers the application for a PBR, but the earlier act of access to Indian germplasm by a foreign breeder still needs NBA approval under section 3. Both statutes use landraces, folk varieties and farmers’ varieties (the BDA defines folk variety, landrace, cultivar and farmers’ variety since 2023), so a breeder may face benefit-sharing claims under both.

(d) Patents and plant varieties. In Monsanto Technology LLC v. Nuziveedu Seeds Ltd., 2019 INSC 35, (2019) 3 SCC 381, Monsanto’s patent on a nucleic acid sequence conferring insect resistance (the Bt trait in cotton) was challenged by Indian seed companies, who argued that it claimed plants or parts of plants excluded by section 3(j) and that the PPV&FR Act was the only route for protecting such material. A Division Bench of the Delhi High Court had held the claims unpatentable while hearing an appeal on interim injunction. The Supreme Court set aside that finding, holding that validity could not be decided summarily at that stage, restored the single judge’s order, and left the question of patentability to trial. The case shows the unresolved boundary between patents on genetic constructs and the exclusive PPV&FR route for varieties.

4. The BDA and the GI Act, 1999

Section 2(1)(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999 defines a geographical indication as an indication identifying agricultural, natural or manufactured goods as originating in a territory, region or locality where a given quality, reputation or other characteristic is essentially attributable to geographical origin. Many Indian GIs are biological resources or products of them: Darjeeling tea, Basmati rice, Navara rice, Coorg orange, Mysore jasmine, Nanjanagud banana, Byadgi chilli.

Complementary aims. A GI is a collective right held through an association of producers, cannot be assigned or licensed, and lasts as long as it is renewed. It rewards communities for maintaining traditional varieties in their place of origin, which supports in situ conservation and the community rights the BDA recognises.
No BDA approval needed. The BDA does not require NBA approval for GI registration, since a GI is not an invention; and local growers and cultivators are exempt from section 7, while the Central Government may exempt normally traded commodities under section 40.
Defensive use. The basmati episode showed that a GI is a better shield than patent challenges against misuse of a resource name abroad.
Gaps. A GI protects the name, not the genetic resource: a foreign breeder can still use basmati germplasm (subject to section 3 of the BDA) and sell the rice under another name. GI registration also does not share benefits with the communities that developed the variety unless they are among the registered producers. And processors outside the area who buy GI produce for commercial use may need to give intimation under section 7, which few do.

Overall assessment. India has built one of the most complete sets of links between biodiversity and IP law: exclusion of TK and plants from patents, disclosure of origin, TK-based opposition, NBA approval before grant, NBA opposition abroad, PBR-specific benefit sharing and GIs for traditional produce. The weaknesses are coordination and enforcement. Three authorities (the Patent Office, the PPV&FR Authority, the GI Registry) and three tiers of biodiversity bodies apply different tests for “community” and “origin”; benefit-sharing money has been small relative to commercial use; and after 2023 domestic users of codified TK face few obligations. The 2024 WIPO Treaty gives India an international basis to insist on disclosure abroad, but approval and benefit sharing still depend on Indian law reaching foreign patent offices through the NBA.

How this is examined

Likely long questions. “Discuss the interrelationship between the Biological Diversity Act, 2002 and the Patents Act, 1970.” “Examine how the Biological Diversity Act interacts with the Protection of Plant Varieties and Farmers’ Rights Act, 2001 and the Geographical Indications of Goods Act, 1999.” “Indian law has created a coherent framework linking biodiversity and intellectual property. Do you agree?”

Likely short notes. Section 3(p) of the Patents Act; section 10(4)(ii)(D); section 59A of the BDA; Monsanto v. Nuziveedu; GIs and biodiversity; section 6(3) and (4) of the BDA.