Intellectual Property Rights Issues for Herbal Products

Abstract

The entire edifice of intellectual property rights system is based upon incentivising innovations by providing legally created private monopoly rights albeit for limited period and on certain conditions. Post TRIPS era, most of our Indian legal IP instruments have been amended, and even new legal instruments have been created in order to comply with provisions of the agreement. The present Indian law has adequate provisions for the protection of innovations in the area of herbals. During the past decade, there has been a spurt of herbal products which include health supplements and medicines for hypertension, obesity, arthritis, diabetes, neurological disorders, etc. (Liu et al. Life Sci 73:1543–1555, 2003; Modak et al. J Clin Biochem Nutr 40:163–173, 2007; Brown and Gerberg, J Sychiatr Pract 7:75–91, 2001). The bent of the global market towards herbal product is the driving force behind the R&D of big pharma companies towards the development of new herbal products. In coherence with the booming industry and extensive R&D work in the field of herbals, the role of intellectual property rights also becomes very important. Lots of innovation is taking place in R&D and all this needs to be properly protected through appropriate legal routes. Patents, copyrights, designs, trademarks and geographical indications are the types of IPRs that play an instrumental role in the legal protection of various aspects of herbal products and processes. Apart from these IP rights, the Protection of Plant Varieties and Farmers’ Rights Act, 2001, was enacted to provide protection of plant varieties developed by plant breeders and farmers, so as to ultimately encourage development of new varieties of plants. It envisages facilitating the growth of seed industry ensuring high-quality seeds and planting material to the farmers. The Biodiversity Act 2002 provides provisions for the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising art of the new use of biological resources and knowledge. For the effective implementation of the Act, National Biodiversity Authority (NBA) was established for the effective regulation of related activities. The Act makes specific provisions that no person can apply for intellectual property rights, in India or abroad, for any invention based upon research or information on a biological resource obtained from India without seeking prior approval from the National Biodiversity Authority. This chapter discusses in detail the intellectual property rights application for protection of innovations in herbals, special provisions and guidelines of the acts and also briefly describes related regulatory requirements.