Transcript SKK_Presentation

Emerging IP Rights Committee
APAA 54th Council Meeting
Adelaide, Australia
Nano Technology Hypothetical on Curcumin
- Presentation on behalf of Attorney General of India -
Seong-Ki Kim, Esq.
Lee International IP & LAW Group
Seoul, Korea
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Contents
I.
The Biological Diversity Act of 2002 (BDA)
II.
Investigation into Facts
III.
Application of BDA to Facts
IV.
Suggestion for Settlement of the Dispute
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I. The Biological Diversity Act of 2002 (BDA)
- Sec. 3 of BDA
• A non-Indian citizen needs a previous approval from the National
Biodoversity Authority (NBA) for obtaining any biological
resources occuring India
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I. The Biological Diversity Act of 2002 (BDA)
- Sec. 4 of BDA
• No person shall transfer the result of any research relating to
any biological resources occuring in or obtained from India to
a person who is not a citizen of India
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I. The Biological Diversity Act of 2002 (BDA)
- Sec. 6 of BDA
• A patent application for any invention based on any research
or information on a biological resource obtained from India
needs a prior approval of NBA before filing
• If a patent has been filed, a permission of NBA may be obtained
after acceptance of the patent
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I. The Biological Diversity Act of 2002 (BDA)
- Sec. 7 of BDA
• An Indian citizen who is not of a local people and communities
of the area needs prior intimation to State Biodiversity Board
for obtaining any biological resource for commercial utilization
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II. Investigation into Facts
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- The source of Curcumin used in the preparation of
Nanocurcumin is a biological resource obtained from India
- No approval for obtaining a biological resource has been
taken from NBA on behalf of Amit Bose, one of the two
co-applicants of the pending patent application
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II. Investigation into Facts
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- We need further information on facts:
• Whether Amit Bose got (and used) turmeric samples to produce
nanoparticles of curcumin?
→ If not, no violation of Sec. 3 of BDA
→ If yes, further investigation is required to determine whether
a prior intimation to State Biodiversity Board has been taken for
obtaining a turmeric sample or not
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III. Application of BDA to Facts
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- Further investigation into facts is required in relation to
violation of Sec. 3, Sec. 7 of BDA need
- It seems that Sec. 4 and Sec. 6 of BDA violated
* In relation to Sec. 4 and Sec. 6 Alok Bose is subject to imprisonment
up to five years or criminal fine up to ten lakh rupees
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IV. Suggestion for Settlement of the Dispute
It is suggested that the parties, Amit Bose, Alok Bose, SPOT,
NBA, the Patent Controller and State Biodiversity Board of
Kerala agree to settle the case on the following terms:
1. Amit Bose agrees to transfer his share of the title to the patent
application to Alok Bose and destroy all records containing any
technical information obtained during preparation of patent
application on nanocurcumin
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IV. Suggestion for Settlement of the Dispute
2. Upon NBA’s approval and permission, Alok Bose agrees to deposit in
the National Biodiversity Fund as provided in Sec. 21 (3) of BDA a
20 % of any income from the subject patent application including any
patents granted on the subject patent application as the profit sharing
provided in Sec. 21 of BDA
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IV. Suggestion for Settlement of the Dispute
3. Upon Alok Bose’s application, NBA agrees, by a majority of votes of
the members, to grant a permission for a filing of a patent application
on the nanocurcumin invention
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IV. Suggestion for Settlement of the Dispute
4. All the parties agree not to file a civil or criminal complaints or
under the BDA prosecute a case raised under the BDA
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Thank You!
[email protected]
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