**8. National legislations and policies**

India has a tremendous legacy of written and oral TK about elements, conservation and different applications of biodiversity for the benefit of humans, animals, and the planet. This asset of knowledge is important for preservation and human prosperity. Intellectual Property Rights is an unavoidable tool for the present globalized economy. Its more extensive use should be empowered. Notwithstanding, such utilize should not prompt the getting of Intellectual Property Rights (IPR) which cannot be advocated for something that has been made by individuals, nor can revelations made on that premise happen without recognizing the contribution of TK and sharing benefits to the makers of information fairly and equally [52]. Fostering innovation is one among the sustainable development goals set by Indian government. "An India where Intellectual Property stimulates creativity and innovation for the benefit of all" is the vision of India's National IPR Policy. Several initiatives have already proven to foster innovation like the Make in India, Start-up India, Digital India and Skill India [53]. The current laws were either enacted or revised after the TRIPS Agreement and are completely consistent with it. These laws along with various judicial decisions provide a stable and effective legal framework assurance and advancement of IPRs [54].

Systems have been planned and executed to perceive and ensure India's immense Traditional Knowledge (TK) resources. Suitable administrative and institutional components have been put in place, important plans are being carried out and funds have been set aside for this purpose. In India, institutional mechanisms and programs directly related to the use of medicinal plants are under the Ministry of Ayurveda, Yoga and Natural Therapy, Unani, Siddha and Homeopathy (AYUSH). The main legislation related to traditional knowledge is the Biological Diversity Act, 2002 and The Patents Act, 1970, build up equity in the distribution of benefits with the traditional knowledge holders and the profits derived from the use of such knowledge, and prevented improper filing of patent application for an invention based on traditional knowledge [52, 55].

*Intellectual Property Rights: Bioprospecting, Biopiracy and Protection of Traditional Knowledge… DOI: http://dx.doi.org/10.5772/intechopen.99596*

#### **8.1 India's biological diversity act, 2002**

The Biological Diversity Act of 2002 (BDA) is part of an Indian law that emerged in response to compliance with the Convention on Biological Diversity (CBD), of which India is a ratified member. In fact, India has taken the lead among developing and developed nations both in introducing a substantive legislation in conformance with the objectives of the CBD. It governs the conservation of biological diversity, and sustainable utilization and equitable sharing of benefits from the use of biological resources and knowledge [53, 54]. In terms of Section 6(1) of the Biological Diversity Act, 2002 a person is prohibited from applying for any intellectual property in or outside India for any invention based on any research or information on a biological resource obtained from India, without first obtaining prior consent from the (National Biodiversity Authority) NBA. The BD Act makes admittance to TK and filling of applications for IPRs for products or invention that utilize TK, subjected to the approval of competent authorities [56–58].

#### **8.2 The Patents act, 1970**

Indian law has adequate provisions for the protection of TK and Biological Resources. The Patents Act, 1970, which defines that "invention means a new product or process involving an inventive step and capable of industrial application". Further, under Section 3(e) of the Patents Act "a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or process for producing such substances" is not an invention and hence, not patentable. The Indian Patents Act also has a unique provision under Section 3(p), wherein "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components. The patents Act warrants that the subject-matter claimed in a patent application must be novel. The inventive step is another cardinal principle of patentability. Often it is said to be the final gate keeper of the patent system. The applications related to TK and/or biological material shall also be critically examined with respect to requirements of full and particular disclosure of the invention, its operation or use and the method by which it is to be performed along with the best method of performing the invention by way of working examples known to the applicant in the complete Specification as provided under Section 10(4) (a) and (b) of the Patents Act [57].

#### **8.3 Protection of Plant Variety and Farmers' Rights Act, 2001**

The Protection of Plant Varieties and Farmers' Rights Act, 2001 is a *sui generis* legislation in India providing protection for plant varieties and rights of farmers and is under the aegis of the Ministry of Agriculture. India having ratified the Agreement on Trade Related Aspects of the Intellectual Property Rights has to make provision for giving effect to agreement. To give effect to the aforesaid objectives the Protection of Plant Varieties and Farmers' Rights Act, 2001 has been enacted in India. The Act, provides a system for protection of plant varieties, farmers' and plant breeders' rights including rights in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. It also facilitate development of seeds and their commercialization by farmers [54, 59, 60].

#### **8.4 The National Green Tribunal Act, 2010 (NGT Act, 2010)**

The National Green Tribunal is a specialized body set up under the National Green Tribunal Act, 2010 for the expeditous disposal of civil cases that are

related to environmental protection, conservation of forest and other natural resources. The tribunal plays a significant role in the sustainable development of the environment [61].

## **8.5 Forest rights act, 2006**

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, was enacted to protect the rights of the forest dwelling tribal communities who had been residing in such forests for generations. The act also empowers the balance of rights with the responsibilities for sustainable use, conservation of biodiversity and maintenance of ecological balance so that forests are conserved while ensuring the livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers. Section 3(1) of the act enumerates the types of rights that the act recognizes. These include "Right of access to biodiversity and community right to intellectual property and TK related to biodiversity and cultural diversity".

The act covers rights of self-cultivation and habitation as Individual rights; and grazing, fishing and access to water bodies in forests as community rights, habitat rights for particularly vulnerable tribal groups, traditional seasonal resource access of nomadic and pastoral community, access to biodiversity, community right to intellectual property and traditional knowledge, recognition of traditional customary rights and right to protect, regenerate or conserve or manage any community forest resource for sustainable use [59, 62].
