Page 26 - A&A Patents&Design Rewind-2016

RECOMMENDATION: Given the limited term of the patent, a patent
should be granted if the Applicant is able to
(i) Creation of IP cells: IP cells can be created produce his application for approval made under
within the NBA after discussion with the Section 6 of the BD Act. In an event, the NBA
Ministry of Environment and Forest for approval is declined, the BD Act provides for an
scrutinizing and disposing of applications for in-built mechanism whereby the patent holder is
permission under Section 6 of the BD Act. prohibited from commercializing the patent.

(ii) Milestones with timelines can be put in place SINGLE WINDOW CLEARANCE
after due consultation with the NBA for the
IP Cell to dispose of requests under Section 6 LEGAL POSITION AND ISSUE
of the BD Act. A recommended time line is as
follows: As of now there are at least three authorities with
which an Applicant for a patent using biological
DAY ZERO: Date of receipt of application material from India has to deal, namely:
30th DAY: Issuance of formal objections 1. PATENT OFFICE for seeking registration of
45th DAY: Terms of Agreement for Seeking IPR
60th DAY: Hearing patent under the aegis of Ministry of Industry
90th DAY: Disposal of Application and Commerce;
2. NBA for seeking permission to apply for
BD/PATENT LINKAGE intellectual property protection under the
aegis of Ministry of Environment And Forest,
LEGAL POSITION and
3. DEPOSITORY INSTITUTES, for e.g., NBPGR
There is no concept of BD/Patent linkage under the under the Ministry of Agriculture and Farmers
Indian Patents Act. Welfare

ISSUES RECOMMENDATION:

In spite of no linkage of BD and Patents provided by A single platform for clearance should be created at
the Patents Act, currently, the Indian Patent Office the macro level wherein all of the three ministries
has either been refusing or withholding the grant of streamline procedural issues solely for Intellectual
patents using biological material from India based Property protection (IP) to make the approval
on pendency of approval by the NBA. process hassle free.

RECOMMENDATION

26 | Patents & Design