Biotechnology has revolutionised agriculture by helping farmers produce a greater variety of crops in larger quantities. Against this backdrop, the Monsanto v. Nuziveedu case – centred on the enforceability of Monsanto’s Bt cotton patent – carries great weight.
If Monsanto eventually triumphs, it’d mean that genetically modified plant varieties are patentable in India. If Nuziveedu, a Hyderabad-based seeds company, wins, then it will bolster the rights of farmers to cross-breed plant varieties.
On January 8, the Supreme Court set aside an order of a division bench of the Delhi high court on the case, and restored the earlier order of the single bench. In effect, Nuziveedu had been directed to continue paying royalties to Monsanto for using the latter’s Bt cotton tech.
But irrespective of how the case turns out, farmers’ rights should be prioritised in an agrarian country like India. We already have the Protection of Plant Varieties and Farmers Right (PPVFR) Act 2001. It protects plant varieties as well and the rights of farmers and breeders to develop them. It also complies with the TRIPS Agreement, which asks that plant varieties be patentable, protectable through a sui generis system or a combination of the two.
What often goes unsaid is that the PPVFR Act also protects the rights of researchers. And on January 8, the Supreme Court disregarded this aspect when it held that Monsanto’s technique to develop Bt cotton is outside the PPVFR Act’s purview.
In remanding the matter back to the single bench of the Delhi High Court, the apex court said that such a complex matter can’t be adjudicated summarily without considering the evidence and cross-examination of witnesses. And overall, the ruling overlooked the broader objectives of the PPVFR Act.
The consequences can be far-reaching. By allowing Monsanto its patent under the Patents Act 1970, and keeping the technology’s benefits from being shared more equally, we could be en route to monopolising private interest over the public.
For starters, TRIPS allows a nation to develop its own sui generis model through which to protect the rights of the producer of a genetically modified plant varieties/species. So the PPVFR Act protects the farmers’ rights through the Plant Varieties and Farmers’ Rights Authority, responsible for registering new varieties and ensuring farmers can avail them. If a breeder prevents farmers from accessing a variety specified in the PPVFR Act, the authority can force him to license it and comply.
In this endeavour, the act has some support from the Patents Act. Its section 3(j) specifies that plants and animals – or their parts – can’t be patented as inventions.
However, processes involving microorganisms could still be patented, and herein lay the rub. Bt cotton is a cotton plant that contains genes from a bacterium called Bacillus thuringiensis. These genes allow the plant – like they allow the bacterium – to produce toxins in their tissues that are harmful to the bollworm. In other words, Bt cotton is a cotton variety resistant to bollworms.
In 2004, Monsanto had sub-licensed Nuziveedu to sell Bt cotton seeds and pay royalties to Monsanto. Nuziveedu improved on Monsanto’s product to develop and market seed varieties suitable for the Indian agricultural market.
In 2015, Nuziveedu denied Monsanto any further royalties after the government introduced a price-control regime. So Monsanto filed a suit in the Delhi high court claiming Nuziveedu had violated its patent and that Nuziveedu would have to cough up the royalty amount.
In March 2017, a single-judge bench of the Delhi high court directed Nuziveedu to continue paying Monsanto the royalty amount. Nuziveedu appealed, and a division bench of the court ruled in its favour instead, denying patent rights to Monsanto. The bench also asked Monsanto to have its variety registered under PPVFR Act. If Monsanto had done so, it would have lost its patent rights altogether.
Monsanto then approached the Supreme Court, which denied the stay application against the order of the division bench. Monsanto had argued that section 3(j) of the Patent Act allowed microorganisms to be patented, so the company held valid patent rights over the product as well as the process. Monsanto also submitted that its patent was over the altered gene, and not the plant as a whole.
On the other hand, Nuziveedu argued that Monsanto couldn’t claim Bt cotton as its own variety because section 3(j) of the Patents Act said plants couldn’t be patented. This is only fair because a seed containing the altered DNA constitutes a necessary part of the plant and therefore is a part of the plant itself.
Nuziveedu also contended that the process of developing Bt cotton was essentially biological because the gene’s advantages are manifested only when the plant grows. This is a biological phenomenon that requires no human intervention.
But the Supreme Court preferred not to answer the patentability question, or even whether the patent complied with various international agreements India has ratified. Instead, it simply said that the matter shouldn’t have been decided as summarily as it was by the division bench.
However, the issue of patentability had not been raised before the single bench and therefore it couldn’t be raised before the division bench. In sum, the appeal had been dismissed merely as a matter of procedural non-compliance.
The Supreme Court has effectively set aside an opportunity it had to answer the many important questions Monsanto v. Nuziveedu raises vis-à-vis India’s agritech sector. Given the country’s needs and its sociopolitical circumstances, the courts could have settled the matter in the farmer’s favour – as they have before. The Supreme Courts of various other countries have already done so. This could only mean India has to wait longer to assert that it is on the side of the people as well.
Kumar Karan is currently pursuing his B.A. L.L.B. from Symbiosis Law School, Noida. Mehak Sachdeva is a final-year L.L.B. student at the Faculty of Law, University of Delhi.