The recording of traditional knowledge: Will it prevent 'bio-piracy'?

Current Science

Volumn 82, Issue 4, 2002, Pages 413-419

  Udgaonkar, Sangeeta ^a  

^a NATIONAL LAW SCHOOL OF INDIA UNIVERSITY   (India)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042760376     PISSN: 00113891     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (20)

1. United States Patent Application No. 174363.
2. United States Patent No. 5, 401, 504.
3. Mashelkar, R. A., Curr. Sci., 2001, 81, 955-965.
4. See in general Roy Chowdhury, Salil, K. and Saharay, H. K., Law Relating to Trade Marks Copyrights Patents and Designs, Kamal Law House, 1996.
5. Article 27 in Section 5 of the TRIPS Agreement states: 'Patentable Subject Matter - 1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.'
6. See Section 2(j) of the Indian Patents Act, 1970.
7. Press Metal Corporation Ltd v. Nashir Sorabji, AIR 1983 Bom. 144
8. Sharma, Manju, New Biosciences: Opportunities and Challenges As We Move Into The Next Millennium, Indian Science Congress Association, 1999.
9. Law Commission of India, Report on Patents (Amendment) Bill, 1998, 25 February 1999.
10. The product of nature doctrine was questioned only in 1985 in the leading case of Sidney Diamond vs. Ananda Chakrabarty, 447 US 303. The United States Supreme Court said, while granting a patent in respect of a genetically engineered bacterium, that anything under the sun made by man could be patented, irrespective of whether it is living or not.
11. But see clause 4 (e) of The Patents (Second Amendment) Bill 1999, which is still pending before the Parliament.
12. See 35 USC 102.
13. See The Patents (Second Amendment) Bill, 1999, Clauses 17(a) and 28(a).
14. Sairam, T. V., Home Remedies, vol. I.
15. See Ghate, Utkarsh, Gadgil, Madhav and Sheshagiri Rao, P. R., Curr. Sci., 1999, 77, 1418-1425.
16. This argument has been used in the case of the patents granted in respect of Phyllanthus niruri.
17. For example, United States Patent No. 6,277,881 (turmeric as an anti-irritant in compositions containing hydroxy acids or retinoids), United States Patent No. 6,048,533 (turmeric for treating health ailments), or United States Patent No. 5,897,865 (turmeric for treating skin disorders).
18. There are some exceptions - see for example the register of the Pattuvam village in Kerala (see Alvares, Claude, An Indian Village Bucks GATT over Control of Genetic Resources, Third World Resurgence No. 84, p. 11).
19. As in United States Patent No. 5,124,349 (storage-stable azadirachtin formulation).
20. The main exception to this practice is the United States where a patent is granted to the person who is the first to invent, not the first to file.