Latest govt view in Monsanto case suggests Centre feels patents of GM companies over-ridden by PPVFR Act.
Though the environment ministry has, in the past, taken a tough stand vis-à-vis the anti-GM lobby, the fact that it hastily withdrew the FAQs on GM mustard—issued a day after GEAC approval, these said the crop was safe for human consumption—suggests getting the government nod may not be that easy. Indeed, if the government’s latest interventions in two ongoing cases involving GM-giant Monsanto are anything to go by, the official opposition has only strengthened. Unlike some activists who argue the crop is unsafe for human consumption—it is being consumed even today since India imports large quantities of GM soya and rapeseed/canola oil—the government focus, though, is more on the costs of GM patents; worse, on whether patents can even be granted.
Even if the environment ministry does reinstate the FAQs soon, and sticks to its stance that GM mustard is safe, developers of GM technology will come up against the issues of price control and of limiting their royalty through the Protection of Plant Varieties and Farmers Rights (PPVFR) Act of 2001. It is easy to believe the current government salvo is only directed against Monsanto. In actual fact, if the arguments are accepted by courts, all GM technology, including that developed by former Delhi University vice-chancellor Deepak Pental, will find their commercial use circumscribed.
It may not matter in the case of Pental, since his research was funded by the government-owned NDDB, but it will for anyone who wants to work on GM commercially. Given how much money firms like Monsanto are spending on R&D, keeping them away from the market will probably mean Indian farmers won’t get the best technology, but going by government think-tank NITI Aayog’s Three-Year-Action-Agenda, that may not be of great concern—while talking of ‘some concern that GM seeds can be monopolized by multinationals’, NITI says ‘this concern is readily addressed by limiting GM seeds to those varieties discovered by our own institutions and companies’.
It is difficult to reconcile such protectionist talk with a modern economy and institution since it suggests Make-in-India is only for Indian companies or for products where Indian companies are already present. For almost a decade, as the Bt cotton revolution spread across the country, there was no outcry from farmers on how high seed prices were crippling them. Indeed, of the 45-odd firms Monsanto has licensed its technology to, only Nuziveedu Seeds had a problem with its royalty rates, and that was after a decade—Nuziveedu accounts for around a fifth of all seeds sold using Monsanto technology.
In December 2015, however, the Centre came out with a cotton seed price order that, while reducing the cost of the Bt seeds, ensured the bulk of the cut was on Monsanto’s royalty—from Rs 170 or so per bag to Rs 49. In May 2016, it even sought to put a 10% cap on royalty—as a share of the seed price which was already controlled by government—and mandated a steady cut in it but, since the prime minister was travelling to the US, this was withdrawn and the order passed off as a mere discussion note! While this cotton experience can easily be translated to a mustard one or a brinjal one when that gets approved, the latest government offensive is more direct. It has been made in two cases, one in the Delhi High Court in a case involving Monsanto and Nuziveedu and one in a case before the PPVFR Authority.
Both make essentially the same point about Section 3(j) of the Indian Patents Act excluding patentability of seeds, plants and their varieties. And since Monsanto argues it is not patenting Bt cotton seeds but the genes in them—when you buy software on a CD, the copyright is for the software even though it is made available via the CD—the government is arguing that, under PPVFR, once a gene is inserted into the seed, it is a ‘variety’ and hence not patentable. That is, even if a patent is valid, it becomes invalid the moment the gene is put into a seed and cross-pollinated to create new hybrids.
Normally, a GM company like Monsanto licenses its genes to seed firms like Nuziveedu, and they use this to create their own hybrids with a modified gene. Since the new argument means a Nuziveedu, or any other seed firm that gets genes from GM firms is free to renege on royalty payments, the only solution for a Pental will be to either not bother about royalty, or to insist that seed firms who take his technology register themselves under PPVFR with him as a co-owner—or he could forget his laboratory research and get into seed production on his own!
Monsanto, it is true, can still pursue its case against Nuziveedu even under PPVFR, but the process will be more long-drawn, the chances of success less than under the Patents Act and the royalty—it is called ‘benefit-sharing’ under PPVFR—will be lower since this will be fixed by PPVFR instead of being bilaterally negotiated as it is now. Until these issues are addressed satisfactorily, it is difficult to see how GM seeds will progress in India even if developed by ‘our own’ companies since even they work on the basis of profits.