Agriculture

Plant Breeder Rights on the Table, Farmers’ Rights for the Chair

Reflections on the role of the Protection of Plant Varieties & Farmers' Rights Authority and its newly appointed chairperson, as the Indian judiciary considers the scope of Monsanto’s intellectual property rights on Bt cotton seeds.

A lesser-known authority in India – Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Authority — has been catapulted into the news with the ongoing litigation around patent royalties for Monsanto’s Bt cotton seeds. Monsanto’s contention is that the infusion of Bt gene into the genome of the cotton plant is a biotech invention that warrants continued patent protection under India’s patent law. On that basis, it seeks royalty from Indian seed companies that in-license the Bt technology to introduce the genetic trait in their cotton hybrids.

Indian companies argue that Section 3(j) of the Patent Act, 1970, excludes plants from patentability. The high court of Delhi agreed with the Indian company – Nuziveedu Seeds Limited (NSL) and its subsidiaries, which brought the case before the court. The high court in its order dated April 11, 2018 asked Monsanto to instead approach the PPV&FR Authority to seek PVP for its cotton products.

The Supreme Court on May 7, 2018 did not grant Monsanto a stay on the high court ruling. The multinational corporation has the option to register its varieties with the PPV&FR Authority within three months of the HC order (i.e. by July 11, 2018). The Monsanto Group already holds 19 plant variety certificates (PVCs) granted by the PPV&FR Authority (see Table 1). The economic rights granted under the law on the breeder (or his successor, his agent or licensee), upon grant of PVC include exclusive right to produce, sell, market, distribute, import or export the variety during the 15-year term for crops.

Table 1: Monsanto Group’s Cotton Varieties with IPR under the PPV&FR Act

 

No Company Extant (VCK) New Variety PVP Till
1 Monsanto Genetics India Pvt Ltd G 9650798 2014 2029
2 Monsanto Holding Pvt Ltd G 6882644 2015 2030
3 Monsanto Holding Pvt Ltd G 4568960 2016 2031
4 Monsanto Holding Pvt Ltd SO7H878 BGII 2016 2031
5 Monsanto Holding Pvt Ltd G 9663905 2017 2032
6 Monsanto Holding Pvt Ltd G 0898516 2017 2032
7 Maharashtra Hybrid Seeds Co Ltd MRC 7160 2012 2027
8 Maharashtra Hybrid Seeds Co Ltd MRC 7918 2013 2028
9 Maharashtra Hybrid Seeds Co Ltd MRC 7041 2013 2028
10 Maharashtra Hybrid Seeds Co Ltd MECH 12Bt 2013 2028
11 Maharashtra Hybrid Seeds Co Ltd MRC 6301 Bt 2013 2028
12 Maharashtra Hybrid Seeds Co Ltd MRC 6025 Bt 2013 2028
13 Maharashtra Hybrid Seeds Co Ltd MRC 7326 2013 2028
14 Maharashtra Hybrid Seeds Co Ltd C 5171 2013 2028
15 Maharashtra Hybrid Seeds Co Ltd C 5197 2014 2029
16 Maharashtra Hybrid Seeds Co Ltd MRDC 223 2016 2031
17 Maharashtra Hybrid Seeds Co Ltd MRDC 222 2016 2031
18 Maharashtra Hybrid Seeds Co Ltd MRC 6304 Bt 2017 2032
19 Maharashtra Hybrid Seeds Co Ltd C 5710 2017 2032

 Compiled by author from data on the PPV&FR Authority web site

 

Meanwhile, the PPV&FR Authority has got a new chairperson. Kumble Vinod Prabhu, previously joint director of Indian Agricultural Research Institute (IARI), assumed charge with effect from February 6, 2018 for a period of five years.  The notification for the new chair was made public on March 12, 2018.

As developments in court in the Monsanto case shift the focus to the plant variety law, it is a good time to recall the legislative intent of India’s law and the role of the chair of the PPV&FR Authority. The Authority was set up in 2005 in New Delhi to not only provide for intellectual property rights (IPR) on plant varieties, but also guarantee farmers’ rights.

India’s Option

Parliament passed the PPV&FR Act, 2001 not because India’s farmers asked for IPR on either the traditional varieties that they were cultivating or the new ones they were evolving on their farms. In fact, right through the Uruguay Round of multilateral trade talks under GATT (that led to the making of the WTO), farmers in the country were protesting against IPR on life forms. IPR were included in the World Trade Organisation (WTO) due to the insistence of MNCs. Monsanto was part of the coalition of American MNCs that worked on the first draft of WTO IPR chapter – the TRIPS Agreement. Monsanto has wanted full-on patents, and not any lesser-than-patent breeder rights.

To be compliant with WTO TRIPS, it became necessary for India to pass a PVP law. Nonetheless, India exercised the sui generis option [in Article 27(3)(b) see below] that gives WTO member countries a way out if they do not want to allow patents on plants in their national jurisdiction.

 Article 27(3)(b) of the TRIPS Agreement

3. Members may also exclude from patentability:
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.
However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

In choosing this legitimate option, India opted for an alternative to patents on plants to accommodate farmers’ groups. The lawmakers firstly recognised farmers as breeders and, secondly, guaranteed their seed freedoms. As per section 39(1)(iv) of the Act, a farmer is entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a PVP-protected variety, as long as s/he does not sell branded seed of the PVP-protected variety. The selling of IPR-protected varieties is what brings in money for seed companies, whether Indian or foreign.

Legislative Objectives

India’s PVP law is a unique one because of its provisions on farmers’ rights. Conventional PVP laws are blind to small farmers and their seed sovereignty. They instead give primacy to the economic rights of formal plant breeders, limiting seed use by merely granting farmer’s so-called privileges to save seed for their own farms. Most PVP laws follow the standard of the International Union for the Protection of New Varieties of Plants (UPOV). India has consistently kept its distance from the European UPOV. The seed industry worldwide wants national governments to make UPOV-styled PVP laws. This means restricting farmers’ seed freedoms.

If our domestic seed industry were really on our farmers’ side, it would help them with co-developing credible alternatives to MNC products. Credit: PTI

The Indian version of a PVP law is to safeguard the time-honoured seed practices of peasants and other farming communities. The law is also about respecting and recognising the contributions of farmers in conserving, improving and making available plant genetic resources for the development of new plant varieties. The law gives a political message to the world that while India respects international law, it would not do so at the cost of its farmers.

Authority Members

The PPV&FR Authority is required by law to have a chairperson and 15 members. The law [in section 5(a)] requires the chair to have long practical experience, especially in the field of plant varietal research or agricultural development. However, the PPV&FR Act is not simply a technical matter, but a politico-legal one. Holding the chair of the Authority warrants a deep understanding of India’s negotiating positions at fora where the international laws on the subject are being made.

K. V Prabhu in his previous positions in IARI has generally been supportive of the application of modern biotechnology in seeds. His pro-GM views are well known. He categorically asks that if the US MNC Ford is acceptable in India, then why not Monsanto?

The appointment of a new chair comes at a time when there is pressure on India to grant higher levels of IP protection in agriculture. Seed companies and developed country governments, who are members of the UPOV Convention and for whom India is an important market, want stricter enforcement of IP rights on seeds and a dilution of farmers’ rights.

NSL fighting Monsanto in court is not any more farmer-friendly. Along with its subsidiary Prabhat Agro Biotech Ltd., NSL today has the maximum number of IPR in the form of PVP for cotton in the country (seed Table 2). NSL is also currently heading the National Seed Association of India (NSAI). The chair and managing director of NSL,  Prabhakar Rao, is a member of the PPV&FR Authority, wherein he represents the seed industry. So while NSL’s petitions in Indian courts talk of protecting farmers’ rights, the NSL group has as much interest in keeping farmers as a captive customer base with its hybrid and GM cotton varieties. If our domestic seed industry were really on our farmers’ side, it would help them with co-developing credible alternatives to MNC products suitable to our diverse planting situations.

 

Table 2: Cotton Hybrid Varieties registered by NSL & the Monsanto Group with the PPV&FR Authority

NSL: 53
NSL Subsidiary: 9
Monsanto Group: 19

(Source: http://www.plantauthority.gov.in/List_of_Certificates.htm)

 

NSAI companies are also members of the Asia & Pacific Seed Association (APSA). The clearly stated APSA position on IPR is that they only support limited ‘farmers’ privileges’ allowing farmers to use seeds of PVP-protected varieties on their own farm, with no ‘across the fence’ exchange or sale.

Farmers’ Varieties

As per the Authority, out of the 3,074 plant varieties that have been registered and granted IPR as of February 2018, those of farmers’ varieties (FVs) are the maximum. But none of the FVs have been introduced into the official seed supply system by the Ministry of Agriculture. Desi cotton varieties being revived through people’s efforts have not got enough state support. And in the 17  years of the Act, there is not a single case of sharing benefits with farmers. The only benefit-sharing being talked about in the context of the Monsanto case is what the MNC can claim from NSL and other sub-licensees for the use of its patented Bt trait. So the judiciary’s redirecting of the companies to the PPV&FR Act, will only limitedly address the problem of upstream and downstream user fees for seed technologies. But the law has a much wider mandate for farmers’ rights.

The Authority has the responsibility of effecting farmers’ rights, while not pandering to the demands of seed companies. The Act is of no use if it is not working for farmers; both in terms of protecting them from excesses of IPR-hungry companies and promoting their grassroot innovations. If the implementation of the law does not stay close to the legislative intent, the country also loses the very moral and political ground on which to resist higher IPR demands in ‘WTO-plus’ trade agreements and investment treaties with other countries. The new chair of the PPV&FR Authority has a lot to do to keep farmers first.

Shalini Bhutani is a legal researcher and policy analyst based in Delhi; she tracks how trade rules interface with agriculture and biodiversity in the Asian region.