India: Monsanto Served Notice For Revocation Of Its Bt Cotton Patent

Last Updated: 4 April 2016
Article by Lucy Rana and Tulip De

Most Read Contributor in India, November 2017

According to The Indian Express, a leading Indian daily, the Department of Industrial Policy and Promotion (DIPP) has recently served a show cause notice to Mahyco Monsanto Biotech (India) Private Limited (MMBL) on March 03, 2016, calling upon it to explain why its patent for the Bt cotton technology should not be revoked under the provisions of the Indian Patents Act, 1970. The reason for this being, that the patented product, which MMBL claims to be resistant to pink bollworms, is allegedly no longer working as claimed.

Brief Background

Monsanto is an American multi-national corporation known for its contribution to the field of genetically modified crops around the world. In India, Monsanto sells a genetically modified version of Cotton seeds known as Bt Cotton and marketed as Bollgard (containing the Cry1Ac protein / Mon-531 gene) and Bollgard-II through their Indian counterpart MMBL. Bt Cotton is claimed to contain an insecticidal protein, whose gene has been derived from a soil bacterium called Bacillus thuringiensis (Bt), making the seed resistant to bollworm attacks. The 2014-2015 Annual Report of the Cotton Association of India has stated that the acreage under Bt cotton in the country has reached to 96% of the total acreage of around 129.71 lakh hectares where Bt cotton is cultivated. This data shows the overwhelming use of Bt Cotton for cultivation with almost the entirety of the seeds used being manufactured by Monsanto.

Patenting History of Bollgard and Bollgard-II

Monsanto was first granted a patent for the first version of their Bt Cotton seed, Bollgard in the United States in 1992, which expired in 2012. In India, Monsanto tied up with Mahyco (which later became Mahyco Monsanto in 1998) to import Bollgard. The Genetic Engineering Appraisal Committee (GEAC) gave Monsanto permission to commercially release Bollgard in 2002 and Bollgard-II in 2006. Interestingly, it appears from a brief research that Monsanto did not file for grant of a patent for Bollgard in India.

In 2008, an indigenous seed containing the Cry1Ac gene was developed by researchers at the University of Agricultural Sciences (UAS), Dharwad, Karnataka in India. However, reportedly, under the assumption that Monsanto had a patent on this gene, UAS was not allowed to sell the seed commercially on the directions of the Ministry of Environment and Forests1.

Bollgard-II involves the introduction of Cry1Ac and Cry2Ab genes from Bt into cotton plants and Monsanto claimed that it conferred resistance against American bollworm, pink bollworm and spotted bollworm. Through Indian Application no. 1947/CHENP/2003, Monsanto was granted a patent (Patent No. 232681) for the cottonseeds on March 20, 2009 w.e.f. June 05, 2002.

Failure of Bollgard and Bollgard-II

In 2009, Bollgard began to fail as bollworms became resistant to the Cry1Ac gene. According to a press note issued by Monsanto, resistance to Cry1Ac was seen in only four districts in the Indian state of Gujarat i.e. Amreli, Bhavnagar, Junagarh and Rajkot. Further, according to the information provided on the company's website, no insect resistance has been confirmed outside the four districts in Gujarat2.

The company recommended that it would be safer for the farmers to adopt Bollgard-II instead.

In 2015, it was first reported by the Central Institute of Cotton Research (CICR) that Bollgard-II has also started to develop pink bollworm3. Surveys have indicated that the damage to the cotton crop from pink bollworm attacks are "particularly severe" in Gujarat with an estimated 9 per cent yield loss, and it was found to have spread to wider areas. Monsanto said that while results of the CICR study were awaited, internal studies indicated resistance by pink bollworm in some districts of Gujarat to Cry2Ab protein, a key component of Bollgard II. This has reportedly been proliferated by improper insect resistance management practices, absence of refuge (non-Bt seeds), and spread of illegal seeds4.

Revocation of Patent?

Revocation of a patent can be done under Section 64 or Section 66 of the Indian Patents Act, 1970. Section 64 provides for revocation of patents, as long as certain grounds as laid down are met. An application for the revocation of a patent can be made by any interested party or the Central Government. The important provision with regard to this situation is Section 64(1)(g) which provides that an application for revocation can be made if the invention is not useful. This raises the question as to what constitutes "not useful" i.e. whether it includes a situation where the invention does not work at all or does not produce the desired result claimed in the patent specification.

In this regard it may be pertinent to note the judgment of the Bombay High Court in Farbewerke Hoechst v. Unichem Labs and Ors. [AIR 1969 Bom 255], where it was observed in paragraph 17 that even if the amount of utility of an invention is very small, if an invention is of some use to the public it is considered sufficiently useful. Further in paragraph 20 of Farbewerke, the Court observed that:

""not useful" in patent law means that... it will not do what the specification promises that it will do. If the invention will give the result promised at all, the objection on the ground of want of utility must fail".

In view of the above, it appears that if the specification in Monsanto's patent on Bollgard-II claims that the invention is resistant/ tolerant to pink bollworms but is no longer displaying that resistance and the invention is not giving the result promised, grounds for revocation can be made out.

Other Legal Disputes

Interestingly, Monsanto is also facing legal challenges on the price at which the Bt cotton seeds are sold to the public. Cottonseed is an essential commodity under Section 2(a)(ix) of the Indian Essential Commodities Act, 1955. Under Section 3(2)(c) of the Act, the Central Government can make orders for controlling the price at which cottonseed can be sold. The Central Government issued the Cotton Seed Price Control Order, 2015 on December 07, 2015 [G.S.R. 936(E)] for controlling the price at which Bt cotton seeds can be sold in India. The said Order created a panel which would fix the maximum price of Bt Cotton seeds. On March 08, 2016 vide Standing Order bearing No. S.O. 686(E), the Central Government fixed the Maximum Sale Price of Bollgard-II at INR 800 with the Trait Rate being fixed at INR 495.

Monsanto challenged the Order in Mahyco Monsanto Biotech (India) Pvt. Ltd. and Anr. v. Union of India and Ors [W.P. (C) 12069/2015] before the Delhi High Court asking for a stay which was refused by the Court who asked for the Central Government to file a counter affidavit on March 04, 2016. The Court on March 04, 2016 heard in part impleadment applications and ordered that the matter be listed for the end of the board on March 09, 20166. On March 09, 2016, the National Seed Association of India, Bhartiya Janta Kisan Morcha and Indian Kisan Sabha were impleaded as respondents and the matter has been listed for hearing and disposal on March 23, 20167.

In a combined judgment dated February 10, 2016 in Re: Department of Agriculture, Cooperation and Family Welfare And M/s Mahyco Monsanto Biotech (India) Limited (MMBL) [Reference Case no. 2 of 2015] and M/s Nuziveedu Seeds Limited & Ors. And M/s Mahyco Monsanto Biotech (India) Limited & Ors. [Case no. 107 of 2015], the Competition Commission of India (CCI) has ordered that the Director General (DG) make a detailed probe into alleged abuse of dominance by MMBL. The CCI was of the view that there exists a prima facie case of contravention of the provisions of Section 3(4) and Section 4 of the Indian Competition Act, 2002. The CCI has also asked the DG to submit his report within 60 days.


The patentability of Monsanto's Bt cottonseeds, sold as Bollgard-II, is facing challenge at present as the cottonseeds are allegedly no longer functioning as claimed by the company in its specification. The present issue has opened up the possibility that a patent may be revoked under Section 64(1)(g) of the Patents Act for being "not useful", and may thereby set a precedent where a patent may be revoked if, after a period of time, the product or invention is no longer able to produce the same result as promised due to a build-up of tolerance. The eventual outcome in this matter however is yet to be seen.









The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions