NGO’s views on Curcumin case in IndiaNGO’s views on Curcumin case in India

Yuh-Gang YOON, Ph.D.Yuh-Gang YOON, Ph.D.Patent AttorneyPatent Attorney

Zenith Patent & Law Firm Zenith Patent & Law Firm

APAA 54th Council Meeting 2007, Alelaide, AustraliaEmerging Intellectual Property Rights Committee

November 18, 2007

The participation of NGOs in Convention of Biological Diversity The participation of NGOs in Convention of Biological Diversity

(CBD) took place more slower than climate issue. (CBD) took place more slower than climate issue.

More than 150 countries signed on Biological Convention at More than 150 countries signed on Biological Convention at

the UNCED in Rio de Janeiro (June 1992). the UNCED in Rio de Janeiro (June 1992).

The USA is not a party to the CBD.The USA is not a party to the CBD.

This woke up NGOs to think that there must be something in This woke up NGOs to think that there must be something in

CBD if USA is so frightened of itCBD if USA is so frightened of it

1. Introduction

2. 2. Background of CBDBackground of CBD

Conservation and sustainable use of biological diversity is Conservation and sustainable use of biological diversity is

important for protection of environment.important for protection of environment.

Genetic erosion, genetic engineering, extinction of species, Genetic erosion, genetic engineering, extinction of species,

destruction of ecosystem, and man-nature linkages were destruction of ecosystem, and man-nature linkages were

fused into one concept “biodiversity.” fused into one concept “biodiversity.”

This gives the birth of treaty “the Convention of Biological This gives the birth of treaty “the Convention of Biological

Diversity” Diversity”

3. Demands by NGOs3. Demands by NGOs To establish a system of protected areas and promote the recovery of threateneTo establish a system of protected areas and promote the recovery of threatene

d species (so-called d species (so-called in-situ conservationin-situ conservation)) To establish facilities such as herbaria and gene banks (ex-situ conservation)To establish facilities such as herbaria and gene banks (ex-situ conservation) To To use components of biological diversity in a sustainable wayuse components of biological diversity in a sustainable way To integrate biodiversity considerations in national decision-makingTo integrate biodiversity considerations in national decision-making To To adopt economically and socially sound incentives for the conservation and sadopt economically and socially sound incentives for the conservation and s

ustainable use of biological resourcesustainable use of biological resources To promote research and public educationTo promote research and public education To assess and minimize adverse impacts on biodiversityTo assess and minimize adverse impacts on biodiversity To To shareshare with countries, indigenous groups and local communities which provid with countries, indigenous groups and local communities which provid

e genetic resource e genetic resource the benefitsthe benefits which arise from the utilization of these resourc which arise from the utilization of these resources es

ToTo facilitate access to genetic resources and (bio)technology for other partiesfacilitate access to genetic resources and (bio)technology for other parties

4. Point of argument on curcumin case in India4. Point of argument on curcumin case in India

1.1. The source of curcumin being used in the preparation of Nanocurcumin is an InThe source of curcumin being used in the preparation of Nanocurcumin is an Indian variety of turmeric (dian variety of turmeric (Curcuma longaCurcuma longa) which is a biological resource, for the p) which is a biological resource, for the procurement of which no permission has been taken from the NBA as is mandatrocurement of which no permission has been taken from the NBA as is mandatory under ory under Section 3Section 3 of the IBDA; of the IBDA;

2.2. Section 4Section 4 of the IBDA prevents the results of any research relating to biological of the IBDA prevents the results of any research relating to biological resources occurring in or obtained from India from being transferred to any persresources occurring in or obtained from India from being transferred to any person who is not a citizen of India without the prior permission of the NBA on who is not a citizen of India without the prior permission of the NBA

3.3. Section 6Section 6 of the IBDA also prevents the filing of an application for intellectual p of the IBDA also prevents the filing of an application for intellectual property rights based on an Indian Biological Resource without the prior approval roperty rights based on an Indian Biological Resource without the prior approval of the NBA of the NBA

4.4. section 3 or section 4 or section 6 shall be section 3 or section 4 or section 6 shall be punishablepunishable with imprisonment for a with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rterm which may extend to five years, or with fine which may extend to ten lakh rupees (Section 55 of IBDA)upees (Section 55 of IBDA)

5. Unpatenable5. Unpatenable

- In the specification of Indian patent application, the source or geograph- In the specification of Indian patent application, the source or geographical origin of biological material used for the invention was not completical origin of biological material used for the invention was not completely disclosed or wrongly mentionedely disclosed or wrongly mentioned

- The invention is anticipated from a knowledge, oral or otherwise, avail- The invention is anticipated from a knowledge, oral or otherwise, avail

able within any local or indigenous community in India or elsewhere. able within any local or indigenous community in India or elsewhere.

5. Recommendation by NGOs5. Recommendation by NGOs

There is a need for the further development of the Access and There is a need for the further development of the Access and

Benefit Sharing (ABS) process. Basic biological research is Benefit Sharing (ABS) process. Basic biological research is

seriously hampered by many of the current national ABS seriously hampered by many of the current national ABS

regulations.regulations.

All countries are encouraged to ensure that measures are All countries are encouraged to ensure that measures are

taken against the illicit use of genetic resources within their taken against the illicit use of genetic resources within their

jurisdiction, jurisdiction,

Mutual trust, cooperation and communication among all Mutual trust, cooperation and communication among all

countries are essential.countries are essential.

Contact TEL : +82-2-888-3066TEL : +82-2-888-3066 FAX : +82-2-888-3678FAX : +82-2-888-3678 E.mail : yuhgang@ipnlaw.com

Thank you