The legality of Seed Patenting under the Patents Act 1970 and TRIPS Agreement : A Study

By Monalisha Singh, Student, 3rd Year, Chanakya National Law University Patna

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India is well known for its agricultural and farming activities, as the majority of the country’s population adopted agriculture as an occupation. A seed is the basic unit of plant life. Farmers in India have sown seeds, harvested crops and stored some of those harvested seeds for their neighbors’ potential use or trade. The productivity and efficiency of agricultural production has improved enormously with the advancement of technology and the introduction of genetically modified (‘GM’) plants. With all its positives, this advancement has significantly altered the legal system of agriculture by making seed harvesting a breach of intellectual rights for proprietary seeds. Patent legislation allowed a few persons to have monopoly control over such seeds and plant life, and raised the question as to whether or not the living beings that have been genetically engineered would apply for patenting? If plant patenting is permitted in India, farmers will find it tragic because they will have to pay high royalties on their agricultural produce. The Indian legal stance on this matter is somewhat vague and is heavily reliant on the Supreme Court’s view. Though Section 3 of the Patents Act [1970] did not seek to allow plants to be patented, a few loopholes in its reading have made it possible for some firms to gain patents on the process of processing of certain plants. This article would discuss the area of patentability of plants and seeds in India in an effort to resolve this ambiguity. It will look at the World Trade Organization’s (‘WTO’) international mandate, the status of Indian rule, and the implications thereof. 

The World Trade Organization and the TRIPS Agreement

India became a member of the WTO on 1st January 1995. It was necessary for India to comply with the trade-related aspects of the Intellectual Property Systems Agreement (TRIPS) through this membership. Part 2, Patents are dealt with in Section 5 of the Arrangement. In compliance with Article 27(1) thereof, Member States are obliged to award product and process patents on all inventions, providing that they meet the conditions for patentability. However, Article 27(2) requires countries to exclude all innovations whose industrial use, including plant life, would pose a threat to public order and morality. More specifically, Article 27(3)(b) of the agreement requires member States to exempt ‘plants and animals other than micro-organisms and basically biological processes for the development of plants or animals other than non-biological and microbiological processes’ from patentability [TRIPS]. Nevertheless, the arrangement allows Member States to preserve plant varieties by either issuing patents, establishing a sui generis scheme, or incorporating both. These are the numerous requirements that India has had to comply with in the sense of plant patentability. In order to conform to the same, we will now discuss the various changes made by India. 

India’s Position on Plant Patentability

Before 2005, the Indian legislature took several measures to make India TRIPS compliant. This was achieved mainly in two parts. First, by amending the 1970 Patents Act; and second, by passing sui generis legislation such as the 2001 Plant Variety Protection and Farmers’ Rights Act. 

The Plant Variety Protection and Farmers Rights Act (PPVFRA) [2001]

PPVFRA 2001 is a sui generis act which grants both farmers and commercial plant breeder’s exclusive rights to the registered variety. It encourages investment, accelerates the growth of agriculture and offers resources for the research and development of different seed varieties and, in turn, the development of the seed industry. The owner of the protected variety under the PPVFRA is entitled to produce, market, sell, distribute, export and import [Lakshmi Kumaran and Sridharan] registered varieties. The act is an attempt by India to successfully comply with Article 27(3)(b) of the Agreement on TRIPS. 

The Problem with the Indian Seed Regulation

First, the laws made it possible to monopolize agriculture by binding them to patents and excluding farmers from cultivating them. Second, even if farmers do want to grow them, they have to pay heavy royalties, which in turn increases food costs. Third, GM plants make gene pollution unavoidable [Vandana Shiva, 2005]; and fourth, in cases of seed loss, Indian regulations have failed to ensure farmers’ safety. The maize seed failure, for instance, cost farmers more than 1000 crores in 2004, while the BT cotton failure cost Indian farmers more than $1 billion annually [Vandana Shiva, 2005]. Whether or not plants may be patented depends, solely on the reading by the supreme court of Section 3(j) of the act. This is Monsanto’s dispute over the BT gene. 

Monsanto’s BT Gene Controversy

After 2001, the cultivation practices in India, and particularly the cotton market, were heavily influenced by GM crops. BT cotton (a GM factory) had so grossly overtaken the Indian market that BT cotton [Dycke and Overwalle] was around 95% of the cotton produced in India. A gene from the widespread soil bacterium ‘Bacillus Thuringiensis’ was injected into the plant in this form of cotton, which was poisonous to certain forms of insects, giving the plant [Dycke and Overwalle] pesticidal qualities.  BT cotton will also not be understood to be ‘essentially biological,’ causing a claim to be raised that it is not covered under Section 3(j) of the Tabasum Wani Act, 2008. This is the backdoor and line of argument that Monsanto used to get a patent for its technology for the BT gene. In the case of Monsanto Science v. Nuziveedu Seeds [2019], this was taken before the supreme tribunal. In this case, the Supreme Court had the ability to read Section 3(j) of the Patents Act [1970] and, once and for all, to settle this conflict and misunderstanding. However, by secluding itself from addressing whether or not the BT cotton seed can be patented, the Supreme Court took a very vague stance! The Supreme Court referred the case back to the trial court in order to review in depth different areas of evidence and law [Vandana Shiva, 2019]. The Indian legal system finds itself in ambiguity before the decision on this is finalized.  

DISCLAIMER : ALL RIGHTS RESERVED TO LEXSTRUCTOR LEGAL NEWS & PUBLICATION

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