Sections of the government, egged on by powerful Andhra seed companies, are probably cheering the judgment of the Delhi high court’s division bench that just declared Monsanto’s Bollgard-II patent illegal. Given how this will affect the future of Indian agriculture, though, they haven’t understood the importance of the judgment since its implications go beyond Monsanto. Indeed, they will also impact patents by locals such as Deepak Pental whose GM mustard is awaiting government approval —since Pental’s research was funded by the government-created National Dairy Development Board that spearheaded India’s milk revolution, though, he may not be interested in a patent. The government, this newspaper has chronicled over the years, has gone out of its way to hit Monsanto, on grounds it was over-charging farmers even though few farmers objected to Monsanto’s tariff. Even among the seed companies that used Monsanto’s technology, only one—Nuziveedu Seeds—was fighting over the royalty payment. The anti-Monsanto campaign included a cap on prices, a cap on royalties (this was later withdrawn), and even the additional solicitor general (ASG) telling the courts that the patent—granted by the government’s Patent Office!—was illegal. It is this argument, put forward by Nuziveedu—the government didn’t finally submit an affidavit to back the points made by the ASG—that the division bench has backed, overturning the view of a single-judge bench of the same court.
The government’s stance never made sense since, with 95% of the cotton crop using Bt technology, it was obvious farmers thought the cost-benefit was favourable (see graphic). Indeed, such is the farmers’ faith in Bollgard-II, they are happily paying 1.7 times the price for illegal copies of an advanced version of it—the product, Bollgard-II RRF (Roundup Ready Flex) was developed by Monsanto, but illegal knock-offs of it are being sold since, faced with the government’s attitude, Monsanto never introduced it in the Indian market. Around 8-10% of India’s cotton acreage is based on the illegal knock-offs. The crux of the controversy over whether the Monsanto technology can be patented centres around Section 3(j) of the Patents Act—Section 3 deals with what are not inventions and cannot be patented and 3(j) talks of “plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals”. So, how did the Patent Office, in 2008, give Monsanto a patent if this is in violation of the Patents Act? Indeed, more than 70 other patents have been given for similar products, including “a method of producing a transgenic plant”, “a method to produce a plant tolerant to stress conditions”, “a method for increasing seed yield and/or biomass under normal growth conditions”, etc.
Monsanto’s invention comprised (a) identification of desired gene (Cry2Ab) from the DNA of BT (Bacillus thuringiensis) bacteria, which is found naturally in the soil; (b) making (synthesising) nucleic acid sequence by copying the Cry2Ab for insertion into a plant cell; and (c) the method of inserting this nucleic acid sequence into a plant cell. Once this was done, Monsanto licensed the technology to various seed companies, like Nuziveedu, and they used this to develop various cotton hybrids that had the essential qualities of what Monsanto developed. Monsanto argued its product was a biotech one, a microbiological process/microorganism, which was patentable under the Patents Act. Indeed, it said Section 3(j) did not apply to it since what it had developed was not ordinarily part of a plant, it was inserted into a plant using its technology. This seems reasonable to even a layman since, if the anti-bollworm gene was part of a plant, any seed company working on hybrids could have developed what Monsanto had. This is something the single judge bench agreed to when it said Monsanto’s technology “involve(d) laboratory processes and are not naturally occurring substances which only are to be excluded … in Section 3(j)”.
The division bench, however, gave this a totally new twist. It said, “the nucleic acid sequence which is the invention in question (the Cry2AB gene) has no existence of its own; it is of use, after introgression at a particular place, none else. Even thereafter, the seed material has to undergo further steps of hybridization to suit local conditions. Therefore, these products are not ‘microorganisms’ and consequently excluded from the exclusion clause in Section 3(j)”. In other words, Monsanto’s patent was really useful after it was inserted into a plant, but once it was introduced into a plant, however, Section 3(j) applied! That’s really ironical since it is clear as daylight that none of the hybrids, such as those created by Nuziveedu, would have had the properties they did had it not been for Monsanto’s work.
So, at a time when India most needs genetic modification (GM) technology to raise yields, to protect against certain pests, to provide protection against water stress or floods, the court has ensured no GM patents can be given. Theoretically, a Monsanto or a Pental can apply for ‘benefit-sharing’ under what it called the Protection of Plant Varieties and Farmers Rights (PPVFR) Act, but this means accepting the benefits given by the PPVFR Authority, which is quite different from deciding on a royalty commensurate with the investments made—a Pental, as we’ve said, can easily apply under the PPVFR Act since his R&D was fully paid for by the government; few commercial organisation, including in India, are likely to go for this. It will be interesting to see whether the government gets into the case to challenge the damage done. For Monsanto, though it will probably challenge the verdict, the damage is minimal since, in any case, it had put on hold the introduction of any new product in India, given the government’s policies. With little private investment in seed technology, it is befitting that the government has, only recently, come out with a policy to promote Vedic and gau mata farming. What that does to crop production/yields is a different matter.