‘‘Biopiracy’’ generally refers to illegal appropriation of biological diversity and the traditional knowledge of local communities from developing countries by multinational corporations and research institutions. This definition mainly takes two shapes: (1) access and use of biological material or traditional knowledge without the authorization of the country of origin and indigenous communities that hold and develop these resources; and/or (2) lack of benefit sharing, or unjust and unfair sharing of benefits, with the countries and communities who provided resources. These forms of biopiracy are expressly prohibited by Articles 15 and 8(j) of the Convention of Biological Diversity (CBD) 1992 and, more recently, the Nagoya Protocol on access and benefit sharing adopted by the Conference of the Parties to the CBD at its tenth meeting on 29 October 2010. At the national level, many developing countries have adopted national legislation regulating access to their genetic resources and requiring benefit sharing in accordance with the principles of the CBD such as, for example, the Biological Diversity Act, 2002 in India. India, a country of vast biodiversity areas, is one of the ten megadiverse countries of the world, accounting for 7.8% of the global recorded species.
In the last decades, famous biopiracy cases concerned disputed American or European patents granted for Indian plants and traditional knowledge:Curcuma, Neem, andBasmati Rice. Unlike these examples, in the current Bt brinjal case, foreign and Indian corporations and universities have been for the first time accused of biopiracy for violating the Biological Diversity Act in India. After explaining framework in the Bt brinjal case, this paper analyzes the legal allegations related to the violations of the Biological Diversity Act by Monsanto and its Indian collaborators and the impact of a potential judicial condemnation of Bt Brinjal developers.