Traditional Knowledge Laws: India

Scope of Protection

Section 3 - What are not inventions

The following are not inventions within the meaning of this Act,—
(p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

Section 25 

(2) At any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely:—
      (k) that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere but on no other ground.
(3) (a) Where any such notice of opposition is duly given under sub-section (2), the Controller shall notify the patentee.
      (b) On receipt of such notice of opposition, the Controller shall, by order in writing, constitute a Board to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller.
      (c) Every Opposition Board constituted under clause (b) shall conduct the: examination in accordance with such procedure as may be prescribed.
(4) On receipt of the recommendation of the Opposition Board and after giving the patentee and the opponent an opportunity of being heard, the Controller shall order either to maintain or to amend or to revoke the patent.

Trigger of Disclosure

Article 10(4)(d)(ii)

If the applicant mentions a biological material in the specification which may not be described in such a way as to satisfy clauses (a) and (b), and if such material is not available to the public, the application shall be completed by depositing the material to an international depository authority under the Budapest Treaty and by fulfilling the following conditions, namely:—

[…]

(D) disclose the source and geographical origin of the biological material in the specification, when used in an invention.

Content of Disclosure

Article 10(4)(d)(ii)

If the applicant mentions a biological material in the specification which may not be described in such a way as to satisfy clauses (a) and (b), and if such material is not available to the public, the application shall be completed by depositing the material to an international depository authority under the Budapest Treaty and by fulfilling the following conditions, namely:—

[…]

(D) disclose the source and geographical origin of the biological material in the specification, when used in an invention. 

Consequences of Non-Compliance

Article 25 Opposition to the patent.

(1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the ground

[…]

(j) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention;

[…]

but on no other ground, and the Controller shall, if requested by such person for being heard, hear him and dispose of such representation in such manner and within such period as may be prescribed.

(2) At any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely:

[…]

(j) that the complete specification does not disclose or wrongly mentions the source and geographical origin of biological material used for the invention;

[…].

Article 64 Revocation of patents.

(1) Subject to the provisions contained in this Act, a patent, whether granted before or after the commencement of this Act, may, be revoked on a petition of any person interested or of the Central Government by the Appellate Board or on a counter-claim in a suit for infringement of the patent by the High Court on any of the following grounds , that is to say—

[…]

(p) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention;

[…]