On the face of things, the agriculture ministry replacing the representative of Monsanto affiliate Mahyco on the committee that oversees the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act of 2001 with the chairman of Nuziveedu Seeds—a former Monsanto-licensee—may not amount to much, never mind the optics of replacing a Monsanto representative with someone that is baiting it. After all, protecting plant breeders’ rights, which is what PPVFR is supposed to do, is not incompatible with granting patents to the likes of Monsanto for their seed technology. What makes the seemingly innocuous move more than a bit worrying, however, is the role played by the ministry of agriculture in the past and the possibility this may be repeated.
After the government dealt a big blow to the likes of Monsanto with its cotton-seed price control order that lowered the seedtech firm’s royalty from R163 per bag of seed to R42, the agriculture ministry followed this up with a notification in May that restricted the royalty on any future seeds to 10% of the sale-price of the seed—which the government could also control!—for the first five years after commercialisation, and after this, it was to be cut by 10% every year. The resulting outcry, on the eve of prime minister Modi’s trip to the US—where Monsanto is headquartered—made the government backtrack and claim that the notification was actually just a proposal on which a wider discussion was being initiated.
What was more worrying than the restrictions proposed, was the language used in the May notification. For one, it is not clear how, but though Monsanto’s rights were protected under the Patents Act of 1970, the ministry of agriculture managed to circumvent this by invoking its powers under the Essential Commodities Act. The notification went on to say that even though biotechnology inventions are patentable, “once the GM traits developed through biotechnology are transferred into a variety (‘transgenic variety’), the transgenic variety per se cannot be patented; the seeds carrying such trait also cannot be patented and hence, the plant varieties including transgenic varieties carrying the GM Traits can be protected only under the Protection of Plant Varieties and Farmer’s Rights Act, 2001”. That is precisely the point being made by the Nuziveedu chairman who is arguing that the royalty cannot be determined by a Monsanto, but is best fixed by a regulator like the authority administering the PPVFR Act. How a decision can be taken to allow the PPVFR to supercede the Patents Act is not clear, but if the agriculture ministry believes the PPVFR is the overriding Act, it could well come out with the kind of notification it came out with in May. While any such notification will be challenged in a court of law, it cannot be the Modi government’s intention that seedtech firms be tied up in litigation. Given that, after the May notification, Monsanto withdrew its application for Bollgard II Roundup Ready Flex technology—it felt it may not be able to get a reasonable royalty on it under the proposed regime—any such adventurism has to be guarded against.