The Convention on Biological Diversity (CBD) recognizes the sovereign rights of countries on their genetic resources. It emphasizes the conservation of biodiversity, its sustainable use, fair and equitable sharing of benefits arising out of its use, and the preservation of knowledge and practices on indigenous communities.

The legal battles on Neem, Turmeric and Basmati has led to a fear in most of the developing countries that, by using the instruments of present global regime of Intellectual Property Rights, much of their natural wealth in the form of bio-diversity aspects will be expropriated by Trans National Corporations. The misappropriation of traditional knowledge including the patent on wound healing properties of turmeric and the hypoglycemic properties of bitter gourd and Brinjal have led to bitter experiences for India.

India is rich in biological diversity and associated traditional and contemporary knowledge systems relating thereto. Conservative estimates have put the monetary value of medicinal plants related trade globally at over 68 billion (USD) with an expected growth to 5 trillion by the year 2050. According to the World Health Organization, traditional largely medicinal plants based systems continue to provide primary health care to over 80 percent of the world’s population. The World Bank in a study on world development has indicated that the gap between the haves and the have-nots may increase due to ownership of knowledge through Intellectual property Rights (IPRs). Patenting trends across the world shows that there is a spurt in R&D activity by other countries to exploit these vast traditional bio-resources for commercial gain leading to innovative product, processes and applications.

A sizeable number of drugs are developed from plants. The majority of these involve the isolation of the active ingredient from the particular medicinal plant and its subsequent modification. A semi-synthetic analogue of such a compound could typically be a useful pharmaceutical product. Most of such drugs have been discovered with the aid of ethno- botanical knowledge of the traditional uses of the plant. The pharmaceutical company that makes such a drug also applies for some form of intellectual property protection, the most favored being the patent. If granted, the patent gives the company the right to prevent anyone else from manufacturing or selling the product. The company gets, in effect, a commercial monopoly. In addition, the source of the ethno-botanical knowledge is generally not mentioned. Thus both the credit for the product and the financial reward generally go to the company. The country from which the knowledge is obtained is simply treated as a source of raw material, whether of knowledge or of a biological resource. The analysis of patenting activity in clove for example shows that there are about 594 patents relating to clove by countries such as USA, China and Japan with the overall thrust to make use of the properties of cloves or its extracts as ingredients in flavoring food and feed products, in medicine, dentifrice’s, surfactants and as an essence in cosmetics. However the resource rich countries such as India have not made any impact in this direction though there are still some gaps where no patents have been filed for example the use of clove in diabetes or tuberculosis and as a mulluscicidal or a nematidicidal. In contrast China has protected most of its traditional knowledge by granting patents.

It has therefore been considered necessary to provide for conservation, sustainable utilization and equitable sharing of the benefits arising out of utilization of our biological resources and also to give effect to the Convention through enactment of the Biological Diversity legislation. The Biological Diversity Act 2002 is an Act 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 biological resources, knowledge and for matters connected therewith or incidental thereto.

The Bio-diversity legislation regulates access to genetic resources and associated knowledge by individuals and institutions and ensure equitable sharing of benefits arising out of the use of resources and knowledge with the country and its people. The Act provides safeguards to protect the interests of local people, growers and cultivators of biological diversity, as well as Indian researchers through a new National Bio-diversity Authority (NBA), supported by state level boards and management committees that would regulate access to plant and animal genetic resources. Approval of the Authority is required before obtaining any form of intellectual property rights on an invention based on a biological resource from India or on a traditional knowledge including cases of access by foreigners. Indian citizens and companies are allowed free access to biological resources within the country for research purposes but now need prior approval of the National Bio-diversity Authority for transferring findings to foreign entities.