India: Patenting Of Genetically Modified Crops In India Vis-À-Vis International Decisions

Last Updated: 17 March 2014

Article by Priyanka Rastogi and Anshul Bansal1

INTRODUCTION

India has been following a very strict IP policy which is evident from its recent decision in Novartis case. The controversy with regard to Genetically-Modified Crops also triggered the debate on India's position on granting patent for plants or other biological product and processes. The recent move of US farmers against the multinational company Monsanto implies that how granting patent on agricultural produce can adversely affect the masses. In the context of India, the situation will be even worse if the same is granted patent as most of the Indian population depends upon agriculture for their survival.

Important provisions under Indian Patent Act, 1970 [Hereinafter referred to as 'the Act'] which deals with granting patent over agricultural produce are as follows:

  1. Section 3(j) of the Act provides that plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals are not patentable.
  2. Section 3(b) of the Act also points out that the primary or intended use or commercial exploitation of which could be contrary to the public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment is also not patentable.
  3. In addition to the above provision, under section 2(ja) of the Act inventive step is also a pre-requisite for the grant of patent.

It was suspected that GM crops don't posses any inventive step and is contrary to public order and cause serious prejudice to human health. The utility of GM foods is also in debate, and instances shows that it adversely affects the health of the people at large. In addition to this, section 3(j) also bars patent on plants including seeds, varieties and species.

INFERENCE FROM VARIOUS INTERNATIONAL EVENTS UPON INDIA

Monsanto's Patent Saga over GMOs and Its Implication in India

What the Novartis case is to the Right to Health, the Monsanto case is to the Right to Food and Farmers Rights to Seed and Livelihoods.

From the past, it is clear that Monsanto sued over 100 farmers for infringement of its patent and have won all the suits. In the recent decision by US court of Appeals for the Federal Circuit, it was again established by the court that group of organic and non-GMO farmers and other plaintiffs do not have any locus standi to restrict Monsanto from suing them. Monsanto claims that if farmers are using the patented product of Monsanto without giving royalty, this will provide ground for Monsanto to sue farmers or whoever infringes its patent.

As a result, US farmers, seed companies and public advocacy group appealed the decision in the US Supreme court. It is also contended by farmer population that Monsanto's patent is not in tandom with usefulness requirement under the patent law. The effect of genetically-modified seeds is highly debated and there are ample evidences and instances which suggest that they do have negative economic and health effects. Studies suggest that during the initial stage, GM seeds may provide for high utility against pests but over a period of time pests develop resistant against the GMOs.

In India, Mahyco, the Indian subsidiary of Monsanto, a Bt Brinjal promoter, is facing one more trouble in addition to the existing moratorium on GM-Crops. Recently a case for criminal prosecution of the company officials for biopiracy has been revived. Karnataka High Court dismissed a petition to stay the prosecution. National Biodiversity Board (NBA) and the Karnataka Biodiversity Board (KBB) that had complained that the company, along with others, had genetically modified local varieties of eggplant without mandatory approval and laid illegal proprietary claim to the genetically modified seeds.2 In addition to this, it was also pointed out that Mahyco entered into an agreement with Agricultural Sciences, Dharwad (UAS) for sub-licensing the Bt gene for use in local varieties of eggplants and further breeding without NBA approval. Under section 3 of the Biodiversity Act, 2002 it is required that approval from NBA should be taken for using India's biological resources.

Moreover, the complaint said, the UAS, in collusion with Mahyco and Sathguru Management Consultants Private Limited, had carried out breeding to achieve genetic modification of India's biological resources without permission.3 NBA and KBB explained that "Mahyco technology (the eggplant containing the Bt gene that will be backcrossed with local varieties provided by the UAS) and Monsanto's technology (the Bt Gene itself) are incorporated into local varieties, [and] these varieties become 'licensed domestic eggplant products' and therefore providing Monsanto and Mahyco intellectual property resources that can restrict any making, using or selling of these licensed domestic eggplant products."4

Hence, the obvious implication of the US current position is that the petition filed by the farmers will further strengthen the Anti-Monsanto case in India.

However, in Canada the situation is little different. In a landmark case Monsanto vs. Schmeiser5, Monsanto sued Schmeiser (farmer) because he grew canola plants that were genetically modified to be resistant to the herbicide Roundup. Monsanto owned the rights to this gene and Schmeiser did not pay a licensing fee. An increase in genetically modified crops and the herbicides that accompany them have a variety of implications for traditional as well as alternative farming practices. In 2004, Supreme Court decided that Monsanto's patent is valid. The origin of the GM canola seed is still unclear. Therefore, final settlement was done out of the court.

Bangladesh's Approval for Four Varieties Of The Genetically-Modified Bt Brinjal For Cultivation: What India Should Do?

"The commercialization of Bt Brinjal in Bangladesh poses a threat to the entire Indo-china region which is considered as the centre of origin and diversity of this vegetable.6"

With the news of Bangladesh giving approval for cultivation of GM-Crops, the debate on BT-Brinjal again triggered with regard to its trans-boundary movement. Article 25 of the Cartegena protocol, an instrument of the Convention on Biological Diversity (to which India is a party) requires the members to take necessary steps to stop any trans-boundary movement of the GM crop. The Convention on Biological Diversity (CBD) to which both India and Bangladesh are parties to, also recommends that all measures should be put in place to protect centres of origin and diversity of crops7. Hence, being a party at CBD, India may restrict Bangladesh from allowing use of Genetically Modified Bt Brinjal for cultivation on the ground of its trans-boundary movement.

CONCLUSION

It can be concluded at this time that again India has shown through enough instances that Indian patent law cannot be used as a tool for exploitation of public at large. The existing moratorium on genetically modified Brinjal and also other instances is reflective of the fact that until and unless it is proved that GMOs has no adverse effect, it is difficult to sell and produce GMOs with exclusive right in India. The utility of GM foods would remain in debate, unless it proves that it does not adversely affects the health of the people at large. Moreover Japan and several European countries have restricted the cultivation of GM food crops. But India is permiting its entry without taking adequate precautions. It has also been argued that the boost in productivity does not lessen the possible risk associated with the use of GM plants, and further it has been suggested that there are also other methods like 'organic farming' which can be used to achieve the same objectives.

Footnotes

1. Student of BBA. LLB (Hons.), 4th Year, National Law University, Odisha, Cuttack.

2. http://www.thehindu.com/todays-paper/tp-national/biopiracy-case-catches-up-with-mahyco/article5249853.ece, last accessed on 13/02/2014

3. Ibid.

4. Ibid.

5. [2004] 1 S.C.R. 902.

6. http://articles.timesofindia.indiatimes.com/2013-10-30/india/43526839_1_bt-brinjal-greenpeace-india-bt-cotton, last accessed on 13/02/2014

7. Ibid

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