Fund for Scientific advisers

The Central Government on direction of Justice JR Midha has created a Fund for Scientific Advisers in terms of Section 115 (2) of the Act.

The direction was passed during a patent litigation (Sandeep Jaidka Vs. Rohit Kapur & Ors.) in which the Court held that it would be appropriate to appoint an independent Scientific Adviser to assist this Court and give opinion with respect to the issues in dispute.

Court stated that the remuneration of the Scientific Adviser would be settled out of the funds provided by the Parliament for that purpose.

 

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Commercial Courts Act, 2015, is not “a mere piece of paper”

The Delhi High Court recently disposed of an application of the Plaintiff’s in Vifor International Ltd vs Suven Life Sciences Ltd, to file additional documents. The Court only took on record few additional documents. Two of the documents allowed are the Curriculum Vitae of the two expert witnesses sought to be examined by the plaintiff and particulars in which regard could have been given by the witnesses in their affidavits by way of examination-in-chief also. Another document that was allowed was an authorisation letter of the plaintiff in favour of its witness.

The Court was not very keen on allowing documents that can be handed over during oral proceedings. The Court was also not very keen on allowing older documents for which no reason has been given in the application for late filing thereof. The counsel for the plaintiff did not press for said documents but did reserve its right to confront the witness of the defendants with the said documents.

The Court discouraged such applications and also stated that the Parliament passed the Commercial Courts Act, 2015, intending to speed up disposal of suits. But a series of obstacles are put before the court tending to make the legislation “a mere piece of paper”. The judgment listed a series of hurdles which delayed disposal of suits and stated that the same should be avoided.

The Court said that the effort to expedite, endeavoured by the Commercial Courts Act, cannot be only by the Courts, as appears to be understood, but must be by all the stakeholders i.e. litigants as well as the counsels. The Court directed the Stakeholders to pay extra attention to,

  1. Making precise/concise pleadings spelling out basis of claim or defence and to avoid making unnecessary pleas, which add to length of pleadings and ultimately lead to unnecessary issues being framed, evidence being led, which has no relevance at the time of final adjudication;
  2. Documents they are required to file in support of their claim or defence and/or to disprove the claim / defence of other, especially at the time of filing pleadings, to avoid filing of applications as these;
  3. At the outset only, prepare an entire blue print of their case/defence, including of witnesses to be examined, by studying the law and judgments on the subject controversy, including the arguments to be ultimately addressed;
  4. It is also found that whenever applications are filed, the opposite party / counsel, out of habit, seek time for filing reply. Most of such interim applications need no reply. Moreover, the law on various aspects which come up for consideration in such interim applications, is by and large settled and any counsel worth his salt knows the outcome of such applications.

Biological Diversity Act, 2002 – OFFICE MEMORANDUM FOR POST FACTO COMPLIANCE

Indian Biological Resource usage is subject to prior permissions under the Biological Diversity Act, 2002 (BDA). The Act provides a framework for access to Indian biological resources and sharing the benefits arising out of such access and use. The Act also includes in its ambit the transfer of research results and application for intellectual property rights (IPRs) relating to Indian biological resources.

BDA requires foreigners, non-resident Indians, body corporate, association or organization that is either not incorporated in India or incorporated in India with non-Indian participation in its share capital or management to take prior approval of the National Biodiversity Authority (NBA) when they use biological resources and associated knowledge occurring in India for commercial or research purposes or for the purposes of bio-survey or bio-utilisation. Indians and Indian institutions do not require the approval of the NBA when they engage in the above mentioned activities. However they would need to inform the State Biodiversity Boards prior to undertaking such activities. However, any commercial application related to use of biological resources should be approved by the Authority.

The Ministry of Environment, Forest and Climate Change (Ministry) was made aware by the NBA that there are large number of entities/persons who are not fully aware of the provisions of the BDA, but are desirous to comply with the same. Therefore, the Ministry on September 10, 2018, brought out an office memorandum (OM), whereby the NBA was directed to hear all such cases where prior approval under Sections 3, 4, 6 or 20 of the BDA was required but the person/entity has not obtained the same, and pass appropriate orders with respect to acts that may have occurred in past, with an objective of ensuring conservation and sustainable use of biodiversity and fair and equitable sharing of benefits arising from its use.

The NBA is required to ensure that only those cases are granted approval for future activities which would have been otherwise approved in the event it had been applied for prior approval. The OM thus provides opportunity to get absolved of all the violations under the BDA that might have been caused due to past activities.

The NBA was provided a specified time period of 100 days from the date of issuance of the OM to take such decisions, including course of action for matters related to the past.

The NBA has further extended the time for the same through another office memorandum dated March 18, 2019 so as to allow such applications and decisions to be made by May 17, 2019. As the OM and the further extension provides for a limited window period to rectify the past non-compliance, it is recommended that all applications be filed for all past activities.