Monsanto loses right to patent Seeds
by Sandhya Jain on 17 Apr 2018 15 Comments

Opponents of genetically modified crops received a boost when the Delhi High Court upheld the Indian Patent Act, which states that seeds and life forms cannot be patented, and the Protection of Plant Varieties & Farmers’ Rights Act, 2001, which biotechnology multinationals have tried to undermine, and ruled that key plant genetic material cannot be patented. The court was deciding a dispute between Monsanto and Nuziveedu Seeds Ltd., Prabhat Agri Biotech Ltd. and Pravardhan Seeds Private Ltd., over interpretation of law, especially Section 3(j) of the Indian Patent Act and applicability of PPV&FR Act for transgenic plants.


Justice S. Ravindra Bhat and Justice Yogesh Khanna, on April 11, 2018 ruled that Monsanto Technologies LLC does not have the patent for Bt Cotton seed varieties ‘Bollgard’ and ‘Bollgard II’. The bench permitted Monsanto three months to register the seed varieties under the Plant Varieties Act (PV Act), which would entitle the firm to trait fee (royalty) as fixed by government, give it control over plant reproductive materials, but not the key genetic material, which would be available to the public for further research and development.


The ruling is a boost to domestic seed companies that used Monsanto’s gene to prepare Bt Cotton seeds for farmers, and will seriously curb the ability of multinationals to establish a seed monopoly in India, which is the goal of the GM industry. This could downsize the market for genetically modified seeds in India (in any life form) and pave the way for more environmentally sustainable agriculture.


Bt Cotton was pushed into India by the backdoor, which emboldened the MNCs to try to create monopolies in GM food crops, viz., Bt Brinjal (scuttled by then Environment Minister Jairam Ramesh) and GM Mustard. Illegal trials of many GM food crops have been exposed in many places. Swadeshi Jagran Manch co-convener Ashwani Mahajan and Bharatiya Krishak Samaj president Krishan Bir Chaudhary said the ruling vindicates efforts to protect farmers’ rights and India’s food security. The Competition Commission of India has been urged to take note of the judgement, complete its investigations into the company and ensure full refund of Rs 7000 crore extracted as excess royalty from 8 million farmers since 2002.


The judgment is especially rewarding in view of covert attempts by officials of the Union Ministry of Agriculture to help the company during hearings last year. Addl. Solicitor General Tushar Mehta realised that while the Government of India stands aloof from the dispute between two private parties, the Hon’ble Court should be apprised of the views of the Union Government, in writing, as its judgement could impact multiple litigations regarding seed patents and transgenic traits, in which the Centre is involved. A ruling delivered without knowledge of the Centre’s views could adversely affect the Indian farmer and consumer.


Mehta asked senior Ministry officials to file the Written Submission, Affidavit, and Application prepared by his office, as only the Ministry could intervene in the matter. The crux of his concern was that the law laid down in this case [FAO(OS)(COMM) No. 86 of 2017] could be extended to other crops like rice, wheat, soyabean, groundnut etc. and even animals like chicken, pig, sheep, goat, wherever a transgenic trait is introduced. However, in a shocking act of subversion, the concerned officials failed (or refused) to file the written submissions in time; it took a special effort to place the Centre’s views on record.


Briefly, Monsanto’s patent from the Indian Patent Office (No. 214436) included the ‘nucleic acid sequence’ and process to insert the same in plant cells, and covered 27 claims. Monsanto claimed its invention comprised of identification of desired gene (Cry2Ab) from the DNA of Bacillus Thuringiensis (BT) bacteria, which is found naturally in soil; making (synthesizing) nucleic acid sequence by copying the Cry2Ab for insertion into a plant cell; and the method of inserting the said nucleic acid sequence into a plant cell.


Monsanto claimed its patent is a biotech invention containing infusion of Bt gene into the cotton genome, and eradicating pests afflicting the cotton plant. It sold 50 Bt Cotton ‘Donor’ seeds to Nuziveedu and its subsidiaries under licensing agreements in 2004 and 2015, which the companies used in their breeding program to inherit the Bt cotton trait to their proprietary cotton plant varieties. Monsanto never licensed any ‘technology’.


Nuziveedu countered that Bt Cotton plant varieties developed by its group have distinct characteristics apart from the Bt Trait and Donor Seeds variety sold by Monsanto. They applied for Intellectual Property (IP) protection for all their varieties. Cotton was brought under the Essential Commodities Act, 1955 in December 2015, to help fix the sale price of cotton seeds to farmers at affordable prices uniformly across India. The Centre estimates that during 2010-15, domestic seed companies paid Monsanto’s subsidiary roughly Rs. 1,600 crore in excess of actual trait value fixed by various State Governments.


The All India Kisan Sabha; Dept. of Agriculture and Cooperation; State of Telangana; National Seed Association of India and some seed companies filed cases against Monsanto group before the Competition Commission of India. The CCI in April 2016 asked Monsanto not to enforce post-termination clauses on Nuziveedu group, which said it was not obliged to pay more than the “trait value” fixed by State governments, adding that Monsanto’s patent concerns an un-patentable matter by reason of Section 3 (j), and is liable to be cancelled.


Nuziveedu argued that the Bt Trait cannot be sold directly to farmers, but has to be transferred into superior cotton hybrids through traditional plant breeding methods so that the seeds have the agronomic traits required for production of cotton. Moreover, “plants” are excluded from patentability by Article 27(3)(b) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.


Registration of a plant or transgenic variety under Section 28 of the PV Act confers certain exclusive rights to the breeder; Section 30 allows researchers to use any registered variety for developing new varieties; while Section 39 gives farmers the right to save, sow, re-sow, exchange, share and sell farm-saved seeds of any protected variety, including transgenic variety.


The ruling forbids Monsanto from stopping supplies to seed companies and holding farmers hostage. Monsanto will have to abide by Indian laws to operate in India. Reluctance will help revive the native seed industry which has been undermined by the agri-MNCs and their links with public-funded agricultural institutions that never bothered to assess the impact of GM seeds on soil, animal and human health.

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